IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 FAO.No. 238 of 2008() --------------------- AGAINST THE ORDER DATED 09/06/2008 IN IA 352/2006 IN OS.390/2001 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT/1ST RESPONDENT/PLAINTIFF:- ------------- VELAPPAN, S/O LATE ARU, SOORYAPARA, ATHIKODE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENT(S): --------------- 1. A.LAKSHAMANAN, S/O LATE ARU VENTHAPALAYAM, ELAPPULLY AMSOM, PALAKKAD TALUK AND DISTRICT. 2. KARTHIYANI, W/O LATE ARU VENTHAPALAYAM, ELAPPULLY AMSOM, PALAKKAD TALUK AND DISTRICT. 3. BHARGAVI, D/O LATE ARU, VENTHAPALAYAM, ELAPULLY AMSOM, PALAKKAD TALUK AND DIST. 4. KAMALAM, D/O LATE ARU, KIZHAKKAD, KOTTAMANGALAM, NELLEPPILLY VILLAGE, CHITTUR TALUK. 5. NANI, D/O LATE ARU, KOUSUPPARA POKKAMTHODU, ELLAPPULLY AMSOM, PALAKKAD TALUK AND DISTRICT. 6. KALYANI, D/O LATE ARU, PANNIPERUMTHALA THEKKEDESOM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. FAO.238 of 2008 : 2 : 7. AMARAVATHY, D/O LATE ARU CHULAKUNDAN CHALLA, 5TH MILE, NALEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 8. RADHA, D/O LATE ARU, RAMASSERI, PUDUSSERRY VILLAGE, PALAKKAD TALUK AND DISTRICT. BY ADV. SRI.P.R.VENKETESH FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O.No.238 of 2008 ------------------------------- Dated this the 12th August, 2009 J U D G M E N T Raman, J. There were two suits filed for partition, O.S.Nos.341 of 1998 and 390 of 2001, on the file of Sub Court, Palakkad. Both the suits were jointly tried. After trial, O.S.No.341 of 1998 was dismissed and O.S.No.390 of 2001 was allowed. A preliminary decree was passed in the following terms:- “1. Plaint A and B schedule properties are to be partitioned by metes and bounds and plaintiff is allotted 1/8th share over plaint A schedule properties. 2. B-schedule property is partitioned into two equal parts and plaintiff to be allotted ½ share. While effecting partition previous possession of the parties are to be considered in allotting the respective sharers. FAO.No.238 of 2008 2 3. Portions were plaint item No.2 situated in B-schedule is to be allotted to the plaintiff. Plaintiff is allowed to take separate possession of his separate shares severing joint possession. 4. Equities and reservations, owelty, premium, etc. are to be decided at the final decree stage. Plaintiff is directed to apply for passing final decree within two months from the date of the preliminary decree. Parties are directed to bear their costs. Suit is adjourned sine-die.” Thereafter, the first defendant filed an application seeking review of the order along with a petition to condone the delay in filing the same. The delay was condoned and the review petition was allowed by the order impugned in this appeal. Subsequent thereto, a revised preliminary decree was passed, which is as follows:- “1. The plaint 'A' schedule property shall be divided into nine equal shares and one such share shall be allotted to the plaintiff and eight such shares shall be allotted to the first defendant. FAO.No.238 of 2008 3 2. The plaint 'B' schedule property shall be divided into two equal shares and one of such share each shall be allotted to the plaintiff and the first defendant. 3. The houses situated in the plaint 'B' schedule property shall be allotted to the share of the plaintiff without valuation. However, the lands occupied by the houses shall be valued while deciding the value of the properties allotted to the plaintiff. The lands possessed by the plaintiff and the first defendant shall be allotted to their respective shares so far as possible. 5. As the plaintiff and the first defendant are in joint possession and enjoyment of the plaint schedule properties, they are not entitled to get share of profits. 6. The parties are at liberty to file application for passing final decree for partition. 7. The first defendant shall remit required court fee for getting his share allotted in the final decree proceedings. 8. Both sides are directed to suffer their respective costs. 9. The suit is adjourned to sine die.” FAO.No.238 of 2008 4 2. According to the appellant, the court below went beyond the scope of a review and even deleted some of the points yet to be resolved, which were actually reserved to be considered in the final decree proceedings, but omitted in the present order. That apart, it is pointed out that under Item No.3 of the preliminary decree, the land occupied by the house is directed to be valued while deciding the value of the properties allotted to the plaintiff. It is contended that this should be done only in the final decree proceedings. So also, under item No.5, it has been held that parties are not entitled to get share of the profits, since both of them are in joint possession. It is also contended that the finding that they are in joint possession is not correct. 3. We have heard both sides. 4. It may be noticed that in the preliminary decree earlier passed, equities and reservations, owelty, premium, etc. were left open to be decided at the final decree stage. This FAO.No.238 of 2008 5 clause is conspicuously absent in the order of review passed. Like wise, as rightly contended by the appellant, the question as to whether the land occupied by the house should be valued, can be deferred for consideration in the final decree proceedings. Therefore, the finding that the land occupied by the house is to be valued or not will be considered only in the final decree proceedings. Admittedly, portion of the properties are under separate possession of the parties. If so, the question as to whether the parties are entitled to get the share of profits will be determined on the basis of the total extent allowable to the share of the plaintiff or the defendant, as the case may be, vis-a- vis, the properties actually in possession. If any one is found to be in excess of the shares allotted to him, necessarily provision will have to be made in the final decree for mesne profits. Clause (3) will stand modified. We also retain clause (4) of the preliminary decree earlier passed, viz., equities and reservations, owelty, premium, etc. are to be decided at the final decree stage. FAO.No.238 of 2008 6 5. The order passed by the court below in the review petition will stand modified as above. There will be no order as to costs. The appeal is allowed to the above extent. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.