IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 AS.No. 710 of 1996 ------------------------------- OS.135/1993 of SUB COURT, KASARAGOD .................... APPELLANTS/PLAINTIFFS: 1. VENKATRAMANA BHAT. 2. VISHNU BHAT, CHILDREN OF KARUVAJE GANAPATHI BHAT, RESIDING AT DHARMATHADKA OF BADOOR VILLAGE KASARAGOD TALUK P.O. DHARMATHADKA BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENTS/DEFENDANTS: 1. SHANKARANARAYANA BHAT 2. KRISHNA BHAT 3. MANJANNA MOOLYA 4. MANI MOOLYA 5. THYAMPA MOOLYA 6. APPU HENGSU (NOS.1 AND 2 ARE CHILDREN OF GANAPATHI BHAT, RESIDING AT KARUVAJE OF BADOOR VILLAGE KASARAGOD TALUK,P.O.DHARMATHADKA) (NOS.3 TO 6 ARE THE CHILDREN OF SUBBA MOOLYA, RESIDING AT KARUVAJE OF BADOOR VILLAGE KASARAGOD TALUK, P.O.DHARMATHADKA.) ADV. SRI.P.B.KRISHNAN FOR R1 SRI.S.V.BALAKRISHNA IYER, M.M.TEENA FOR R2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.710 OF 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February 2010 JUDGMENT Basheer, J. This appeal is at the instance of the plaintiffs in a suit for partition. They impugne the preliminary decree passed by the trial court. The operative portion of the decree reads thus: 1) Items 1 to 7, 10 and 5 cents (in item 18) in R.S.No.834/5 of plaint A schedule will be divided into 4 equal shares and the plaintiffs together will be allotted 2 such shares and the remaining 2 will be allotted to defendants 1 and 2, 1 each, on payment of requisite court fee. 2) Plaintiffs are entitled to future profits, which is limited to 3 years, from defendants 1 and 2. The rate and quantum will be decided in the final decree. 3) The 2nd defendant is entitled to be allotted house No.II/128 in his possession in equity without valuing the same. Other equities will be considered in the final decree. 4) Cost will come out of the estate; and 5) Any of the parties is at liberty to apply for passing final decree. 2. Essential facts which are necessary for disposal of the appeal may be briefly noticed. 3. Appellants/plaintiffs and defendant Nos.1 and 2 are brothers. They belong to Hindu Mithakshara Joint Family. Admittedly, the original joint family got disrupted as per Ext.A1, registered partition deed dated June 8, 1984 entered into between late Karuvaje Ganapathi Bhat, the father of the plaintiffs, and defendant Nos.1 and 2. A.S.No.710 OF 1996 :: 2 :: 4. Plaintiffs and defendant Nos.1 and 2 who were allotted share B, were sought to be partitioned in the suit. The plaint schedule comprised of 19 items. It was contended by the plaintiffs that they were entitled to get two out of 4 shares in those properties with share of profits. 5. Defendants 1 and 2 filed separate written statements. The gist of the contentions was that item Nos.1 to 7 and 5 cents in item No.18 were alone liable to be partitioned. In other words, these two defendants claimed exclusive right over the other items of properties on the basis of various contentions raised in the written statement. Since learned counsel for the appellants has fairly conceded that he will confine his arguments only in respect of item Nos.15 and 18 apart from the items which are already directed to be partitioned in the preliminary decree, we do not propose to advert to or to deal with the various contentions raised by the defendants in their respective written statements. 6. It may at once be noticed that item Nos.15 and 18 have been specifically referred to in Ext.A1 partition deed. As regards item No.15, which has an extent of 84 cents and is situated in R.S.No.839/2, it is seen mentioned in Ext.A1 that certain proceedings were pending before this court at that time as C.R.P.722/84(E) which arose from an original application filed by one Subrahmanya Holla who claimed tenancy right over the said item of property. It is seen recited in Ext.A1 that defendant No.2 was authorised to get himself impleaded in the Civil Revision Petition and conduct the proceedings on behalf of the B sharers, namely, the plaintiffs and defendants 1 and 2. 7. It is on record that this court had allowed the Civil Revision Petition filed by Ganapathy Bhat, the father of the plaintiffs and defendants 1 and 2, and A.S.No.710 OF 1996 :: 3 :: remitted back to the Appellate Authority which, in turn, had remitted it back to the Land Tribunal. It is further seen from the record that one Soorya Narayana Rao, who had got assignment of the property involved in the original application from Subrahmanya Holla, has got himself impleaded in the proceedings before the Land Tribunal as petitioner No.2 therein. Subsequently, Subrahmanya Holla and Soorya Narayana Rao informed the Tribunal that the matter had been settled and the original application was got dismissed as settled out of court. 8. In this context, it may also be noticed that defendant No.2 had got himself impleaded in the said original application as respondent No.2 after the death of his father, Ganapathy Bhat. It is the admitted position that shortly after disposal of the original application by the Land Tribunal, defendant No.2 had got the said item of property assigned in his favour from Soorya Narayana Rao by virtue of Ext.B12 assignment deed dated June 4, 1993. It was relying on Ext.B12 assignment deed that defendant No.2 set up exclusive right and possession over item No.15. It was contended by him that he had all along been in possession and enjoyment of the said property and that it had never belonged to the family. Thus, he contended that the said item of property was not available for partition. The court below accepted the above contention and held that plaintiffs were not entitled to get any share in the said property. 9. It is significant to note that defendant No.2 had no case that item No.15 was not included in Ext.A1 partition deed. It was also not his case that he had not been authorised to conduct the case before the Land Tribunal for and on behalf of his brothers who were shown as Share B holders in the partition deed. As has been mentioned earlier, defendant No.2 had got himself impleaded before A.S.No.710 OF 1996 :: 4 :: the Land Tribunal as respondent No.2. More importantly, while he was examined before the Land Tribunal, he had candidly admitted that the family had been in possession of the said property and that the petitioners in the original application before the Land Tribunal had no possession over the said property at any point of time. Further, in the course of examination before the court below, it was admitted by him that he was conducting the proceedings before the Land Tribunal as authorised under Ext.A1, partition deed. 10. It has been noticed already that defendant No.2 got assignment of item No.15 after the culmination of the proceedings before the Land Tribunal. The Land Tribunal had dismissed the original application filed by Subrahmanya Holla and Soorya Narayana Rao claiming tenancy right over the said item. In other words, the claim of tenancy set up by Subrahmanya Holla was repelled by the Tribunal. Keeping in view all these facts and circumstances, we have no hesitation to hold that the view taken by the trial court as regards item No.15 cannot be sustained. It is held that item No.15 is also liable to be partitioned. 11. As regards item No.18, it may at once be noticed that the said item also is specifically referred to in Ext.A1 partition deed. There is some dispute with regard to the extent. Of course, the extent of the above item is shown as 49 cents in Ext.A1, whereas in the plaint schedule the said item is stated to have an extent of 84 cents. In our view, the extent shown in Ext.A1 has to be accepted. We do so. 12. The next question will be whether the contention raised by defendant No.2 as regards this item is liable to be accepted or not. The trial court held that only an extent of 5 cents out of the said item is liable to be partitioned as A.S.No.710 OF 1996 :: 5 :: contended by defendant No.2 on the ground that the plaintiffs have failed to adduce any evidence to show that the entire item belonged to the family. We are unable to accept the above view taken by the court below, since it is totally unsustainable for reasons more than one. 13. As mentioned earlier, this property was one of the items which were included in the partition deed that stood allotted to the plaintiffs and defendant Nos.1 and 2. Defendant No.2 did not adduce any evidence to show that after execution of Ext.A1 partition deed he had obtained any exclusive right over any portion of the said item of property. In fact the burden was heavy on defendant No.2 to establish that he had got exclusive right over the said item of property except 5cents. In that view of the matter, the finding of the court below that only 5 cents out of item No.18 is available for partition cannot also be sustained. It is held that the entire extent of 49 cents situated in R.S.834/5 and described in the plaint schedule as item No.18 is available for partition. 14. What remains is the share of profits that plaintiffs would be entitled to recover from defendant Nos.1 and 2. The court below found that plaintiffs would be entitled to claim future profits and that too for a period of three years. In our view, the direction issued by the court below limiting the period to three years cannot be sustained. Plaintiffs will be entitled to get share of profits from the date of plaint till the date of delivery of their share. 15. It is further contended by the learned counsel for the appellants that the direction issued by the court below to allot the house bearing No.II/128 without valuing the same cannot be sustained. It is made clear that the house shall stand allotted to defendant No.2 only after valuing the same. To that extent, A.S.No.710 OF 1996 :: 6 :: the direction issued by the trial court in this regard is modified. 16. In the result, the preliminary decree is modified to the extent holding that item No.15 and the entire item No.18 having an extent of 49 cents are also available for partition. Plaintiffs shall be entitled to get 2/4th share each in those two items. The plaintiffs shall also be entitled to get share of profits from the date of plaint till the date of delivery of possession. House bearing No.II/128 shall stand allotted to defendant No.2 after valuing the same. The decree shall stand modified to the above extent. Appeal is allowed in part. Parties shall bear their respective costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes A.S.No.710 OF 1996 :: 7 :: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.710 OF 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 16th February 2010