IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 RSA.No. 42 of 2010() ------------------------------ AS.128/2002 of ADDL. DISTRICT COURT, THALASSERY OS.185/1995 of SUB COURT, PAYYANNUR .................... APPELLANT/APPELLANT/2ND DEFENDANT: ----------------------------------------------------------------- CHELLAN PUTHIYA PURAYIL MOIDEEN, S/O.MUHAMMED KUNHI, AGED 49 YEARS, RESIDING AT CHERUTHAZHAM AMSOM, DESOM P.O.MANDUR. BY ADV. SRI.K.C.SANTHOSHKUMAR, SMT.K.K.CHANDRALEKHA, SRI.GOPAKUMAR G. (ALUVA). RESPONDENTS/1ST RESPONDENTS/PLAINTIFF AND DEFENDANTS: ---------------------------------------------------------------------------------------------------- 1. MAYILANCHIKKAL MUHAMMED KUNHI HAJI, S/O.ABDULLA HAJI, RESIDING AT MADAYI AMSOM, PUTHIYANGADI DESOM, KANNUR TALUK. 2. CHELLAN PUTHIYA PURAYIL ABDUL RAHIMAN HAJI, S/O.SULAIMAN, RESIDING AT MATTOOL AMSOM DESOM, P.O.MATTOOL, KANNUR TALUK. 3. CHELLAN PUTHIYA PURAYIL ABDUL KAREEM RESIDING AT CHERUTHAZHAM AMSOM DESOM, P.O.MANDUR. 4. CHELLAN PUTHIYA PURAYIL MARIYAM HAJUMMA, D/O.AYISUMA, RESIDING AT MATTOOL AMSOM DESOM P.O.MANDUR, KANNUR TALUK. 5. KOTTILE VALAPPIL SIDDIQUE, S/O.AYISUMMA, RESIDING AT EZHOME AMSOM DESOM P.O.EZHOME, KANNUR TALUK. ADV. SRI.SUNIL NAIR PALAKKAT FOR CAVEATOR R1 & R4 BY ADV. SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA.No. 42 of 2010 ORDER ON I.A. NO.106/2010 IN RSA NO.42/2010 CLOSED 09/07/2010. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.BHAVADASAN, J. ------------------------------------- RSA No.42 of 2010-E ------------------------------------- Dated 9th July 2010 Judgment Aggrieved by the concurrent findings against him, the second defendant in OS No.185/95 before the Sub Court, Payyannur, has come up before this Court. The facts and parties are hereinafter referred to, as they were available before the Trial Court. 2. The suit was one for partition. The plaint schedule property originally belonged to Ayikkarakath tharavadu. It is a Muslim family and they follow the Marumakkathayam Law. The tharavadu properties were partitioned as per Document No.1764/1935 of SRO, Taliparamba. As per the said partition deed, the plaint schedule property was set apart to the share of RSA 42/10 2 Moideenkutty, a member of the tharavadu. It was also stipulated in the partition deed that after the death of Moideenkutty, the property shall revert to the five thavazhies in equal proportion. Consequent to the death of Moideenkutty, the property devolved on the five thavazhies of the tharavadu. It was pointed out that later, the third thavazhi became extinct. While so, the first defendant and one Muhammadali purchased the shares belonging to the members of Thavazhy Nos.1, 2, 4 and 5. By subsequent assignments, those shares came to vest with the plaintiff. He, thereafter, moved for partition. 3. In the written statement filed by the first defendant, it is stated that the first defendant along with Muhammadali purchased the undivided right of Ayikkarakath Pallan and four others over RSA 42/10 3 the plaint schedule property as per Document No.1414/86. Subsequently, the first defendant purchased the right of Ayikkarakath Puthiyapurayil Aboobacker as per Document No.1128/91. The first defendant expressed his willingness to have the property partitioned. He prayed that his share may be allotted separately with future mesne profits. 4. In the written statement filed by the second defendant, he has admitted that the property originally belonged to Ayikkarakath tharavadu and that there was a partition of the property as mentioned in the plaint. He disputed the claim in the plaint that the first defendant along with one Muhammadali purchased the rights of some of the members of the thavazhies as per document No.1414/86. The subsequent devolution of the shares claimed by the plaintiff was also RSA 42/10 4 disputed. It was contended that the plaintiff has no manner of right over the plaint schedule property. On the above grounds, the second defendant prayed for dismissal of the suit. 5. The third defendant also filed a written statement, but he did not object to the partition. 6. The Trial Court raised necessary issues for consideration. The evidence consists of Ext.A1 produced by the plaintiff and Exts.B1 and B2 produced from the side of the defendants. Though Exts.B1 and B2 were produced by the contesting respondents, for reasons mentioned in paragraph 13 of the Trial Court Judgment, the Trial Court did not accept the plea put forward by the contesting defendants regarding purchase of shares of members of certain thavazhies. The Trial Court, in turn, found that the plaintiff had established that he RSA 42/10 5 had obtained the plaint schedule property as per Ext.A1 deed and accordingly, passed a preliminary decree as follows : “In the result, the suit is decreed ; a preliminary decree for partition is passed as follows : i) That the plaint schedule property be divided into 1680 equal shares and out of which 626 shares shall be allotted to the plaintiff. ii) That the plaintiff is entitled to future mesne profits from this date till date of delivery of possession or for three years whichever event occurs first. The second defendant is made liable to pay the mesne profits due to the plaintiff; the quantum of which will be decided in the final decree RSA 42/10 6 proceedings. iii) That the costs of the suit shall come out of the estate. iv) That the plaintiff is at liberty to apply for passing the final decree. The suit is adjourned sine die." 7. Aggrieved by the Judgment and decree of the Trial Court, the second defendant carried the matter in appeal as AS No.128/02. In the appeal, two issues were raised. They read as follows : "1. Whether plaintiff is having any partible interest over the plaint schedule property ? 2. Whether the plaintiff is entitled to mesne profits ?" 8. Both the above issues were answered against the appellant and the appeal was dismissed. It is the said Judgment and decree that is assailed RSA 42/10 7 before this Court. 9. The learned counsel for the appellant raised only one point before this Court, i.e., the documents produced by him as Exts.B1 and B2 were not considered by the courts below and the claim of the plaintiff that he had purchased the entire shares of that Thavazhy is not correct. According to the learned counsel for the appellant, it is pure miscarriage of justice. 10. A reading of the Judgment of the Trial Court fairly shows, why the claim put forward by the contesting respondent could not be taken note of. It was accepting Ext.A1 deed that the Trial Court had granted shares to the plaintiff. It is significant to notice that going by the Judgment of the lower Appellate Court, the issue now raised does not seem to be raised before that court at all. The two issues RSA 42/10 8 raised before the lower Appellate Court will not cover the issue now raised before this Court. However, it appears that when the matter was taken up initially by this Court, this Court directed the second respondent in this appeal to file an affidavit on behalf of all the respondents. Accordingly, an affidavit has been filed, which shows that the plaintiff in the suit is entitled to only 60.845 cents of land. 11. The learned counsel for the plaintiff, accepted the same, even though, according to him, he will be entitled to a larger extent. One has to notice that the suit is of the year 1995. 15 years have elapsed after the filing of the suit. That is a long period. So, remanding the case back for further determination of the issues will be doing injustice to the parties. In the light of the affidavit RSA 42/10 9 filed by the second respondent, which is acceptable to the plaintiff in the suit, there is no reason why the matter should not be given a quietus. The share of the plaintiff is determined as 60.845 cents of land. He will be allotted that extent of land. With the above observation, the Second Appeal is dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE sta RSA 42/10 10