IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA. 1930 SA.NO. 768 OF 1999(G) --------------------------------------- AS.82/1995 OF ADDL. DISTRICT COURT, PARAVUR OS.181/1982 OF MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT(S) - APPELLANT - 2ND DEFENDANT: ------------------------------------------------------------- GANGADASAN PILLAI @ K.G. PILLAI, S/O.KUTTAPPAN PILLAI, KANNOTHUKUDY VEEDU, GIDC, VAPI WORKS IN M/S.STAFFER ENGINEERING WORKS, GUJARATH. BY ADV. SRI.K.N.NARAYANA PILLAI SRI.P.VISWANATHAN SRI.DINESH R.SHENOY SRI.VPK.PANICKER SRI.JAYAGOPALAN RESPONDENT(S) - RESPONDENTS-PLAINTIFFS & DEFENDANTS 1 TO 3: --------------- ------------------------------------------------------------------------------- 1. K.R. SUKUMARAN NAIR, S/O.KUTTAPPAN PILLAI, KANNOTHUKUDY, OKKAL KARA, PERUMBAVOOR. 2. K.N. RAVEENDRAN NAIR, DO. DO. 3. K. SADEESAN NAIR, DO. DO. ADV. SRI.S.SHYAM FOR R1 &3 SRI.N.K.KARNIS FOR R1 &3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31.3.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A.No.768 of 1999 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 31st day of March, 2009 J U D G M E N T ---------------------- In this appeal at the instance of defendant No.2 the challenge is to the final decree for partition. The following substantial questions of law are raised for a decision. “(a) Whether lower appellate court did not commit a grave error in failing to consider the legal effect of Exhibit B2 judgment dated 11.8.1987 in O.S. No.76 of 1986 on the file of the Munsiff's court, Perumbavoor? (b) Whether parties to O.S. 181/1982 were not legally barred from opposing the prayer for exclusion of the plaint schedule property in O.S. No.72/1986 from the partition in O.S. No.181/1982? (c) Whether findings of the courts below are not perverse such that no reasonable tribunal could have arrived at such conclusions in the facts and circumstances of the case? (d) Whether lower appellate court has no totally misread and misunderstood the pleadings and evidence adduced in the case and rendered a perverse finding? S.A. No.768 of 1999 -: 2 :- 2. Parties are referred to as plaintiff an defendants as in the trial court for convenience. 3. Plaintiff sued the defendants for partition and separate possession of his share in 7 items of immovable properties and certain movables. In this second appeal only immovable properties are concerned and hence I am not referring to the claim regarding movables and the partition ordered in respect of that. Defendant No.2 contended in the suit that item No.6 of the plaint schedule, 16 cents in Sy.No.409/8 is not available for partition as it belonged to his wife. A further contention raised is that about 17 cents of garden land by name 'Kannothukudi Purayidom' comprised in Sy.No.438/11-C1, C2 belonging to his Uncle, Raghavan Pillai as per assignment deed No.4075/1951 is sought to be partitioned and that has to be excluded. Trial court adverted to the contention raised by defendant No.2 as to the availability of item No.6 of plaint schedule for partition and found that item No.6 is not partible but did not consider the objection with respect to the inclusion of 17 cents said to be belonging to Raghavan Pillai in item No.4 of the plaint schedule. Learned Munsiff passed a preliminary decree for partition of item Nos.1 to 5 and 7. It is not disputed that the preliminary decree has become final. Plaintiff requested for passing final decree as per I.A. No.1075 of 1985. On that application defendant No.2 preferred objection raising the very S.A. No.768 of 1999 -: 3 :- same contention as regards the inclusion of 17 cents (in item No.4 of the plaint schedule) and further contended that on Raghavan Pillai dying bachelor and intestate the said 17 cents devolved on his sister, Gowri Amma who assigned it to her daughter-in-law, Radhamani Amma (wife of defendant No.2) as per assignment deed No.2773 of 1977. It was also contended that based on that assignment deed, Radhamani Amma filed O.S.No.72 of 1986 before the Munsiff's Court, Perumbavoor against plaintiff and defendants 1 and 3 seeking declaration of her title and possession of the said 17 cents in Sy.No.438/11-C1 & C2 and that the said property is not available for partition in the present case. A Commissioner was appointed by the trial court to effect division of the property. Commissioner submitted Exts.C1 and C1(a), report and plan. Defendant No.2 preferred his objection to the report and plan on the very same lines sated above. Defendant No.1 was examined as D.W.1. D.W.2 is Radhamani Amma, wife of defendant No.2. Trial court observed that “while considering the above question it is found by the court that the properties sold to second defendant's wife is not the property sought to be partitioned. In the above circumstances I could not accept the case of the defendants 1 and 2 that the commissioner measured out the property inclusive of the property sold to the second defendant's wife”. Exhibits C1 and C1(a) were accepted and a final decree was passed. Learned S.A. No.768 of 1999 -: 4 :- counsel for defendant No.2 would contend that trial court did not consider the actual extent of property comprised in Sy.No.438/11 (item No.4 of the plaint schedule) available for division. It is also contended by learned counsel that though an observation was made by the trial court that the contention raised by defendant No.2 at the preliminary decree stage was considered by the trial court and found against, there was no such finding in the preliminary decree as to the availability of the property comprised in Sy.No.438/11-C1, C2 for partition. Learned counsel for the contesting respondents would say that in so far as the plea was raised in the preliminary decree and found against, it is not open to defendant No.2 to raise that contention again in the final decree. It is also contended by learned counsel that relevant documents were not produced by defendant No.2 in the trial court. 4. Copy of the judgment and decree in O.S. No.72 of 1986 referred to above were produced by defendant No.2 before the first appellate court and got it marked as Exts.B2 and B3. Exhibit B3, copy of decree shows that it is in respect of 17 cents in Sy.No.438/11-C1, C2. As per Exhibit B2, Radhamani Amma (D.W.2) was granted a declaration of her title and possession of the said property and that it is not available to be included in O.S. No.181 of 1982. It is not shown that Exts.B2 and B3 have not become final. S.A. No.768 of 1999 -: 5 :- 5. Defendant No.2 has a contention that he had produced Exts.B2 and B3 before the Commissioner at the time of division but, it was not taken into consideration. True those documents were not produced before the trial court but were produced in the first appellate court and have been admitted in evidence. First appellate court has not given serious consideration of Exts.B2 and B3. It merely observed that D.W.2 (Radhamani Amma) has not taken any further steps pursuant to Exts.B2 and B3. The court has to consider the actual extent of property comprised in Sy.No.438/11 (item No.4 of the preliminary decree) actually available for partition. I say so because in item No.4 of the preliminary decree schedule survey number stated is only 438/11C without the sub division number. It is not clear whether item No.4 takes in Sy.No.438/11-C1, C2 covered by Exts.B2 and B3. Otherwise final decree may be in conflict with Exts.B2 and B3 and the right claimed by D.W.2. Therefore notwithstanding that the suit is of the year 1982 I am constrained to send the case back to the trial court for consideration of the actual extent of property comprised in Sy.No.438/11 (item No.4 of the preliminary decree schedule) available for partition as per the preliminary decree in the light of Exts.B2 and B3. It will be open to the parties to adduce further evidence on the issue. Trial court shall consider the actual extent of the property available in Sy.No.438/11 for partition as included in the preliminary S.A. No.768 of 1999 -: 6 :- decree. Necessarily if Exts.C1 and C1(a) are found to be taking the property referred to in Exts.B2 and B3 and if that property is not available for partition as per the preliminary decree, trial court will obtain fresh report and plan regarding the actual extent of the property available for division and pass final decree accordingly. 6. Second Appeal is allowed by way of remand. The final decree under challenge is set aside and case is remitted to the trial court for fresh consideration of the question stated above. Needless to say that since the suit is of the year 1982, trial court will give all preference and dispose of the application for final decree as expeditiously as possible. No costs. Parties shall appear in the Munsiff's Court Perumbavoor on 28.5.2009. No costs. Civil Miscellaneous Petition No.2110 of 1999 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv S.A. No.768 of 1999 -: 7 :- THOMAS P.JOSEPH, J. =================== S.A. NO.768 OF 1999 =================== J U D G M E N T 31ST MARCH, 2009