IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 RFA.No. 389 of 2010() --------------------------------- I.A. NO.7124/2001 IN OS.15/2008 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/IST DEFENDANT ------------------------------------------- * M.V.KURIAN @ KURIACHAN, S/O.LATE MADAPARAMBIL MANI VARGHESE, AGED 71 YEARS, AGRICULTURIST, MADAPARAMBIL HOUSE, KADAVOOR VILLAGE, KADAVOOR P.O., KOTHAMANGALAM TALUK, PIN - 686 671. (DIED) ADDL. APPELLANT IMPLEADED, 2. VARGHESE, S/O. LTE M.V.KURIAN @ KURIACHAN, AGED 38, MALAPARAMBIL HOUSE, KADAVOOR VILLAGE, KADAVOOR P.O., KOTHAMANGALAM TALUK, PIN 686 671. *THE LEGAL REPRESENTATIVE OF THE DECEASED APPELLANT IS IMPLEADED AS ADDL. APPELLANT VIDE ORDER DT D 15.11.2010 IN IA. 4180/10. BY ADVS. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH RESPONDENT(S): PLAINTIFFS - DEFENDANTS 2 & 3 -------------------------------------------------------------------------- 1. MRS.SHEEJA VARGHESE, W/O.M.M.VARGHESE, AGED 33 YEARS, HOUSEWIFE, MADAPARAMBIL HOUSE, KADAVOOR VILLAGE, KADAVOOR P.O., KOTHAMANGALAM TALUK, NOW RESIDING AT MADAPARAMBIL HOUSE, IV/331A SASTHAMANGALAM ROAD, KADUVAL, PERUMBAVOOR, PIN - 683 542. tss R.F.A. NO.389/2010 2. M.M.VARGHESE, S/O.M.K.MANI, AGED 38 YEARS, BUSINESS, MADAPARAMBIL HOUSE, KADAVOOR VILLAGE, KADAVOOR P.O., KOTHAMANGALAM TALUK, NOW RESIDING AT MADAPARAMBIL HOUSE, IV/331A SASTHAMANGALAM ROAD, KADUVAL, PERUMBAVOOR, PIN - 683 542. 3. DR.ALICE VARGHESE, W/O.DR.VARGHESE CHERIAN, AGED 71 YEARS, CHOWKAPARAMBIL HOUSE, A.M.ROAD, PERUMBAVOOR, PIN - 683 542. 4. VARGHESE VARGHESE, S/O.VARGHESE VARGHESE AGED 30 YEARS, ADVOCATE, MADAPARAMBIL HOUSE, SOUTH MAZHUVANNUR P.O., MAZHUVANNUR VILLAGE, KUNNATHUNADU TALUK. *ADDL. R5 IMPLEADED 5. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. *IS SUOMOTO IM-LEADED AS ADDL. RESPONDENT VIDE ORDER DTD. 19.8.2010. R1 & R2 BY ADVS. SRI.BASIL MATHEW, SRI.K.B.SAJAN. R3 & R4 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE R3 BY ADVS. SRI.P.B.KRISHNAN, SRI.R.SURAJ KUMAR, SMT.GEETHA P.MENON, SRI.N.AJITH, SRI.P.M.NEELAKANDAN. R5 BY SPL.GOVERNMENT PLEADER R.SUSHEELA BHAT THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.389 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of December, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.This appeal is by the first defendant in a suit for partition. Under challenge is the final decree. The court below issued a commission. When the report came, the court below thought it fit to remit the matter for a second report taking also into consideration whether any land belonging to Government (sarkar) is part of the land being dealt with in the suit. It appears that certain parties had also indicated such a line before the learned Judge. The matter was remitted. A second report came up. A final decree was passed. Pending this first appeal by the first defendant, he died. Additional appellant brought on record. RFA389/10 -: 2 :- 2.Now, read the orders dated 19th August, 2010 and 1st July, 2011. Those orders will stand appended to this judgment. 3.With the aforesaid, adverting to affidavit sworn to on 9th February, 2011 by the Additional Tahsildar, Taluk Office, Kanayannur, it can be seen that the Government takes the stand that the appellants are paying land tax for 24 cents and 750 sq.links, but, it is seen that they are possessing an extent of 27.082 cents of property. The Taluk Surveyor has prepared and produced a sketch which is Annexure-7 along with that affidavit. We also note that the said affidavit contains different other statements, including regarding the contents of certain files and the statement that certain proceedings were in conclusive. With that, we see the additional affidavit filed by the additional 5th respondent, the District Collector, sworn to on 27th August, 2011. He gives different details regarding the RFA389/10 -: 3 :- survey records and certain directions issued to the Tahsildar, Kanayannur. 4.In so far as the controversy between the parties to the suit is concerned, we may recall that even in the order dated 19th August, 2010, we had recorded that the parties are working out a settlement and would report a compromise or otherwise, the impugned decree could be vacated. 5.But, as can be seen from the affidavit of the District Collector, the Government stands to assert title to the land which is in possession of the parties to the suit, in excess of 24.750 cents. 6.We may, therefore, deem it appropriate that the court below frames and adjudicates an issue as to the availability of any Government land as part of what is shown as the plaint schedule property. Such an issue is relevant because the question whether the plaint schedule property also RFA389/10 -: 4 :- includes any other land belonging to the person not party to the litigation has to be decided to identify the property available for partition. This is all the more so because, very valuable property is now stated to be Government property. We, therefore, are of the view that the impugned final decree can be vacated paving way for further adjudication of the issue before the court below. Obviously, this would depend upon the pleadings that the State Government or the District Collector may file. We also record the submission by Adv.P.B.Krishnan on behalf of the contesting respondents that even with the materials on record, it can be shown that no Government land is actually involved and there is not even a concluded acquisition on the basis of which the State could claim title to the property. For the aforesaid reasons, we vacate the impugned judgment and final decree and remit the matter for further consideration. This shall be done RFA389/10 -: 5 :- after providing the State through the District Collector, Ernakulam, an opportunity to file pleadings and if necessary, opportunity to the parties to adduce further evidence. The parties are directed to appear before the court below on 4th January, 2012. The District Collector, Ernakulam on behalf of the State is also directed to mark appearance before the court below. By force of this judgment/order of remit, the State Government represented by the District Collector, Ernakulam will stand impleaded as an additional respondent before the court below. It will be open to the court below to consider whether it has to open up the preliminary decree already passed to pave way for the adjudication to secure the interest of the State Government, if any. We also clarify that if it is found that the plaint schedule property does not include any Government (sarkar) land, the preliminary decree as already available will stand. We further clarify that nothing stated in the earlier orders issued by us in this case would be taken as decisive or RFA389/10 -: 6 :- conclusive on any of the issues, including the question of title of the State Government, arising for consideration before the court below. Having regard to the checkered career of the litigation, the learned Judge will make an endeavour to dispose of the matter without delay, at any rate, before the Christmas, 2012. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/2112