IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 AS.No. 691 of 2001() -------------------- OS.21/1983 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANTS/RESPONDENTS 5 TO 11: -------------- 1. AYISHAKUTTY 2. MYMOONA 3. RAHIMA 4. SAFFIYA 5. T.Y.ABDUL RAHIMAN 6. KHADEEJA 7. MUMTHAZ ALL ARE RESIDING AT THONIPADAM, VAVULLIAPURAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON RESPONDENTS:L.Rs. OF PETITIONER/PLAINTIFF (PLAINTIFF DIED AFTER JUDGMENT) --------------- 1.BEEKUTTY, S/OLATE IBRAHIM, RESIDING AT PALLATHODI HOUSE, KAYARADI, CHITTUR TALUK, PALAKKAD DISTRICT. 2. AVHA UMMA, W/O KOYAMU, RESIDING AT ERALI VEEDU, ERIMAYOOR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 3. ABDUL RAHIMAN, S/O LATE IBRAHIM, RESIDING AT PALLATHODI HOUSE, KAYARADI, CHITTUR TALUK, PALAKKAD DISTRICT. 4. MOOSAPPA, S/O.LATE IBRAHIM, RESIDING AT PALLATHODI HOUSE, KAYARADI, CHITTUR TALUK, PALAKKAD DISTRICT. 5. MUHAMMEDKUTTY, S/O. LATE IBRAHIM, RESIDING AT PALLATHODI HOUSE, KAYARADI, CHITTUR TALUK, PALAKKAD DISTRICT. 6.RAHIMA, W/O.KABEER, RESIDING AT PAYYANKODE VEEDU, KAYARADI, CHITTUR TALUK, PALAKKAD DISTRICT. AS.No. 691 of 2001 7. YUSUF, S/O LATE IBRAHIM, RESIDING AT PALLATHODI HOUSE, KAYARADI, CHITTUR TALUK, PALAKKAD DISTRICT. 8. SAFIYA D/O LATE IBRAHIM, RESIDING AT PALLATHODI HOUSE, KAYARADI, CHITTUR TALUK, PALAKKAD DISTRICT. 9. SHERIFFA, W/O KADHER MOIDEEN, RESIDING AT RADHAKRISHNA RICE MILL, ALANKADAVU, .O.THEKKEDESOM, CHITTUR TALUK, PALAKKAD DISTRICT. * 10. HAMSA, S/O.THONIPADATH THOTTUKATTIL SAIDU - DIED (L.Rs RECEIVED) 11. MAKKAYI ALIAS UNNICHEKKAN, S/OLATE MUTHU 12. UMAIRA, W/OAHAMMEDKUTTY. 13. SAINABA, W/O. CHERMANGALAM PAZHATHARA AZEEZ 14. AYISUMMA 15. SARA UMMA 16. MUTHUMMA 17.BEENUMMA. * (IT IS RECORDED THAT R18 DIED AND THAT RESPONDENTS 19 TO 26 ARE HER LEGAL HEIRS - VIDE ORDER DATED 21.6.2001 ON MEMO DATED 15.6.2004 AS 11054/04) * 18. AMMALU UMMA, WO.JABBAR - DIED (L.Rs. RECIEVED) 19. ASIYA, W/OCHOLAYIL ABDUL RAHIMAN 20. RAFEEK, S/OASIYA 21. RAJIN (MINOR), S/O. LATE ABDUL RAHIMAN. 22. ARIFFA (MINOR) S/O. ABDUL RAHIMAN 23. SULTHAN MOHAMMED (MINOR), S/OLATE ABDUL RAHIMAN 24. SAJIRA (MINOR), S/O LATE ABDUL RAHIMAN. 25. KAMAR LAILA (MINOR), S/O ASIYA 26. NASEEMA (MINOR), D/O ASIYA (MINOR RESPONDENTS 21 TO 26 ARE REPRESENTED BY THEIR GURADIAN MOTHER THE 19TH RESPONDENT) RESPONDENTS 10 TO 26 ARE RESIDING AT THONIPADAM, VAVULLIAPURAM AMSOM, ALATHUR TALUK, PALAKKAD * (IT IS RECORDED THAT R10 AND R27 DIED AND THAT RESPONDENTS 28,29 AND 33 TO 39 ARE THEIR LEGAL HEIRS VIDE ORDE DATED 25.6.2004 ON MEMO DATED 14.6.04 AS 11054/04) AS.No. 691 of 2001 * 27. SARA UMMA, W/O HAMSA. - DIED (L.Rs. RECIEVED) 28. SULAIMAN, S/O.HAMSA. 29. MOHAMMEDKUTTY, S/O.HAMSA RESPONDENTS 27 TO 29 ARE RESIDING AT VAVULLIAPURAM AMSOM, ALATHUR PALAKKAD DISTRICT. 30. SAIDAVAN, HUSBAND OF ASIYA 31. MUSTHAFA (MINOR), S/O. ASIYA 32. AMINA (MINOR), D/O ASIYA (MINOR RESPONDENTS 31 AND 32 ARE REPRESENTED BY THEIR GUARDIAN FATHER 30TH RESPONDENT ) RESPONDENTS 30 TO 32 ARE RESIDING AT PAZHAYANNUR, THRISSUR DISTRICT 33. BALKEESA, D/O.HAMSA, RESIDING AT ANJUMOORTHY MANGALAM, PAYYAKUNDIL BISMA HOUSE, ALATHUR TALUK, PALAKKAD. 34. BEEPATHUMMA, D/O.HAMSA, RESIDING AT VAKKALA HOUSE, ELAVAMPADAM, ALATHUR TALUK, PALAKKAD. 35. ABBAS, S/O.HAMSA, RESIDING AT KODUKATTIL, VAVULLIAPURAM, ALTHUR TALUK, PALAKKAD. 36. ABDUL ASSIS, S/O.HAMSA, RESIDING AT KODUKATTIL, VAVULLIAPURAM, ALATHUR TALUK, PALAKKAD DISTRICT. 37. NASEEMA, D/O.HAMSA, RESIDING AT KODUKATTIL, VAVULLIAPURAM, ALATHUR TALUK, PALAKKAD. 38. SALEENA (MINOR), D/O.HAMSA, RESIDING AT KODUKATTIL, VAVULLIAPURAM, ALATHUR TALUK, PALAKKAD 39. AYISHAKUTTY (MINOR), D/O.HAMSA, RESIDING AT KODUKATTIL, VAVULLIAPURAM, ALATHUR TALUK, PALAKKAD (MINOR RESPONDENTS 38 AND 39 ARE REPRESENTED BY THEIR GUARDIAN 35TH RESPONDENT) RESPONDENTS 1 TO 4, 13 TO 28 , L.Rs OF R29 AND R30 TO R36. (R29 DIED AFTER JUDGMENT) R28 TO 39 BY ADV. SRI.P.R.VENKETESH R28 TO 39 BY SRI.P.R.RAJA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - A.S.No.691 of 2001 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August , 2011 J U D G M E N T Respondents 5 to 11 in IA.2075/1989 in OS.21/1983 before the Sub Court, Palakkad are the appellants. 2. OS.21/1983 was a suit for partition. It ended in a compromise preliminary decree being passed. In pursuance to thereof the final decree proceedings were initiated by filing IA.2075/1989. A Commissioner was deputed and he submitted the report and plan. Initially respondents 26 to 36 and petitioners in final decree raised certain objections regarding the Commissioners report. By order dated 23.10.1991, the report was remitted to the Commissioner to rectify the mistakes. The commissioner has re-submitted his report on 28.09.1993. 3. It appears that the present appellants filed IA.1313/1994 raising certain objections to the Commissioner's report. They have also produced documents in support of their objections. It seems that the Commissioner was examined as CW1 and Commissioners :2: A.S.No.691 of 2001 reports were marked as Exts.C1,C1(a) and C2, C2(a). The lower court then went on to pass the final decree on the basis of those Commissioner's reports and plans. 4. The objection now taken is that the final decree has been passed without taking note of the objections raised by the appellant before the court below. It is pointed out that very serious objections were taken to the Commissioner's report like change in Survery No., change in the extent and also to the effect that, final decree includes a property which was not included in the preliminary decree for partition. It was without considering all these objections, the final decree has now come to be passed. 3. On going through the records and the order impugned it appears that there is some substances in the above contentions. IA.1313/1994 was filed by the appellants herein taking serious objections to the Commissioner's report and also that one item of property is not partible at all, which exclusively belongs to the :3: A.S.No.691 of 2001 appellants has been included in the plan and report filed by the Commissioner. It is true that the Commissioner has been examined as CW1 and reports have been marked. But there is no mention or reference in the order impugned regarding the objections filed by the appellants. It is not discernible from the order whether the objections have been considered at all and whether there is any error or mistake in the Commissioner's report and plan. The lower court has not adverted to any of the objections raised by the appellants. In the light of the objections raised by the appellants it would appear that they have considerable grievance regarding the Commissioner's report and plan. Though ten years have elapsed, this Court have no option, but to remand the matter for the consideration of the objections raised by the appellants. In the result, this appeal is allowed. The impugned judgment and decree are set aside and the matter is remanded to trial court for fresh consideration in :4: A.S.No.691 of 2001 accordance with law and in the light of what has been stated above. It is made clear that as far as possible, lower appellate court may try to ascertain whether the existing final decree can be sustained considering the objections filed by the appellants. If it is not possible fresh steps may be taken for getting a proper Commissioners report and plan. Parties shall appear before the lower appellate court on 03.10.2011. Lower court may take every endeavour to dispose of the matter as expeditiouslyas possible, at any rate, within a period of three months from the date of appearance of the parties. The records will be send back to the lower court and forward a copy of the order to the lower court. Sd/- P. BHAVADASAN JUDGE kkj // True copy // PA to Judge