IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 CMA.No. 234 of 1999() ------------------------------ AS.600/1994 of SUB COURT,NEYYATTINKARA .................... APPELLANT/ IST RESPONDENT/PLAINTIFF ----------------- MADHAVAN THAMPI VENUGOPALAN NAIR, URIYARIKUNNU KUNJULEKSHMI NILAYAM WRITTEN AS URIYARIKUNNU VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE. BY ADV. SRI.M.RAJASEKHARAN NAIR RESPONDNTS/ APPELLANTS & RESPONDENTS 15 TO 20 AND OTHER ------------------ RESPONDENTS/ DEFENDANTS 7 TO 12, 14 TO 22. 1. KUNJI DHANAMMA WRONGLY SHOWN AS OMANA, MUNDUVILA VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE. 2. KUNJI KAMALAMMA, OF DO. DO. 3. KUNJI DAISY, OF DO. DO. 4. KUNJI BABY, OF DO. DO. 5. KUNJI POULOSE, MUNDUVILA VEEDU, KARUMKULAM DESOM. 6. PADMANABHA PILLAI KUTTAN PILLAI, NAMBYATHI VAZHAKOOTTATHU VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE, (DIED). 7. PADMANABHA PILLAI KUNJAN PILLAI OF DO. DO. 8. MATHEVAN PILLAI CHELLAPPAN PILLAI MUNDUVILA VEEDU, KARUMKULAM DESOM KARUMKULAM VILLAGE. C.M.A. NO.234/1999 9. RAJAMMA, KUTTANINNA VEEDU, ARUMANOOR DESOM, THIRUPURAM VILLAGE. 10. RAJAMMA PONNAMMA, OF DO. DO. 11. RAJAMMA SUBHASHINI, 12. ACHUTHAN NADAR GOPALAN NADAR, OF DO. DO. 13. JOSEPH NADAR JOHNKUTTY NADAR, MUNDIVILA VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE. 14. JAINI, W/O. LEKSHMANAN NADAR, VARUVILA KIZHAKKUM MURI PUTHEN VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE. 15. JAINI THANKAM, OF DO. DO. 16. LEKSHMANAN NADAR CHRISTUDAS, OF DO. DO. 17. LEKSHMANANA NADAR SATHYADAS, OF DO. DO. 18. LEKSHMANAN NADAR YESUDAS, OF DO. DO. 19. LEKSHMANAN NADAR RAJU, OF DO. DO. 20. LEKSHMANAN NADAR VIJAYAN, OF DO. DO. 21. JAINI LITTLE FLOWER, OF DO. DO. 22. JAINI NIRMALA, OF DO. DO. 23. JAINI AMBILI, OF DO. DO. 24. JAINI SANTHY, OF DO. DO. 25. LEKSHMANAN NADAR SIMON, OF DO. DO. 26. LEKSHMANAN NADAR JOSE, OF DO. DO. 27. LEKSHMANAN NADAR UNNI OF DO. DO. 28. LEKSHMANAN NADAR SUNI, OF DO. DO. 29. YESUVADIYAN MANAS, MUNGUVIL PURAYIDAM, KARUMKULAM DESOM OF KARUMKULAM VILLAGE. C.M.A. NO.234/1999 30. NEELU AMMUKUTTY, NAMBAYATHI VAZHAKKUTTATHU VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE. 31. KUTTAN PILLAI AYYAPPAN PILLAI, OF DO. DO. 32. KUTTAN PILLAI SADASIVAN PILLAI OF DO. DO. 33. KUTTAN PILLAI RAVI, OF DO. DO. 34. KUTTAN SUKUMARI, OF DO. DO. 35. KUTTY LELITHA OF DO. DO. 36. KUTTY GIRIJA, OF DO. DO. 37. KUTTAN PILLAI KRISHNAN KUTTY, OF DO. DO. 38. KUTTAN PILLAI SREEKUMAR OF DO. DO. 39. CHELLAMMA, NAMBIYATHI VAZHAKKOTTATHU VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE. 40. VELAYUDHAN PILLAI SUKUMARAN PILLAI , OF DO. DO. 41. VELAYUDHAN PILLAI VIJAYAN OF DO. DO. 42. CHELLAMMA OMANA, OF DO. DO. 43. CHALLAMMA SANTHA, OF DO. DO. 44. VELAYUDHAN PILLAI PUSHKARAN, OF DO. DO. BY ADV. SRI.R.S.KALKURA - R8 SRI.G.S.REGHUNATH - R9,12 SRI.M.P.SREEKRISHNAN - R1 TO 5 THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CMA. NO.234/1999 ORDER ON CMP.NO.6217/2002 IN IA. NO.331/2005, IN CMA. NO.234/1999 DISMISSED 18.06.2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== CMA No.234 OF 1999 ===================== Dated this the 18th day of June 2008 JUDGMENT This appeal is preferred against the judgment of the Sub Court, Neyyattinkara in A.S.Nos.395, 600 and 601 of 1994. Those appeals had arisen out of a final decree passed by the Prl.Munsiff's Court, Neyyattinkara in I.A.No.837 of 1991 in O.S.No.715 of 1976. The brief facts of the case would reveal that the suit was one for partition which ended in dismissal at the trial stage and when it reached the appellate stage, a decree was passed in favour of the plaintiff whereby he is directed to be given 56 ½ cents of property. It is also very specifically stated that it shall be done without disturbing the possession of the property of the defendants. So one has to understand the preliminary decree as one which is specifically states that the allotment of 56 ½ cents of property to the plaintiff shall be done without disturbing the possession of the property of the defendants in the suit. A Commissioner was appointed in the matter. He visited the property and submitted a plan and report against the provisions of the preliminary decree and when it was remitted to him, he again filed another report that it is not CMA 234/1999 -:2:- possible to allot 56 ½ cents without disturbing the possession of the property of the defendants. Therefore the court below accepted that report and passed a final decree. It is against that decision appeals were preferred before the Sub Court. The Sub Court had elaborately considered the matter and pointed out the defects that requires to be cured and therefore set aside the final decree passed in I.A.No.837 of 1991 and remanded the case with a specific direction to appoint a new Advocate Commissioner for allotment of 56 ½ cents in favour of the plaintiff as per the provisions contained in the preliminary decree in A.S.No.491/1981. It also held that the trial court shall give specific direction to the Advocate Commissioner for allotting the property in favour of the plaintiff without disturbing the possession of the property of the contesting defendants in O.S.No.715 of 1976, whose possession has been protected by the preliminary decree in A.S.No.491/1981. I feel that the judgment passed by the appellate Judge is absolutely inconsonance with the directions contained in the preliminary decree which alone requires to be implemented at the stage of final decree. Since it has not been done properly, the court thought it fit to direct the trial court to do it in accordance with the terms of the preliminary decree in A.S.No.491/1981. The order does not suffer from any serious infirmity. Therefore C.M.A. fails and the same is dismissed. The trial court shall see CMA 234/1999 -:3:- that as directed by the appellate court, the spirit and the directions contained in the decree has to be implemented by virtue of the issuance of a Commission and thereafter by hearing parties. M.N.KRISHNAN, JUDGE Cdp/-