IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 RFA.No. 446 of 2009() --------------------- AGAINST THE ORDER DATED 15/11/2008 IN IA 6156/1995 IN OS.157/1974 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/RESPONDENT NO.4: ---------------------------------------- A.B.VENKITTARAMAN ALIAS VENKTA RAO AGED 69, S/O. BABA SHET, ELECTRICAL ENGINEER (NOW RETIRED) WATER BLOCK, MATHURA REFINERRY RESIDING IN Q.NO. 1/316, MATHURA REFINERY NAGAR MATHURA 291006, U.P. NOW RESIDING AT VRINDAVAN HOUSE, MYTHRI NAGAR ROAD, VADUTHALA, KOCHI-682023. BY ADV. SRI.K.V.JAYACHANDRAN RESPONDENTS/RESPONDENTS 1TO 3 AND PETITIONER L.RS. OF D1 AND ---------------------- RESPONDENTS 5 TO 15. 1. A.B.JEEVANDAS (DIED) 2. A.B.DAYANAND,S/O. BABA SHET, (DIED) RETIRED WELDER OF BHILAI STEEL PLANT, PARTNER OF BABA ENGINEERING AND FABRICATION WORKS GURU NANAK MARKET, VYSALI NAGAR, BHILAI-409027 MADHYAPRADESH. 3. A.B. DEVARAJ, S/O BABA SHET, BROADWAY RESTUARANT, MARKET ROAD, ERNAKULAM (D2 DIED) 4. A.B. YOGESWARAN, S/O. ALINGAPARAMBIL BABA SHET, AGED 56 YEARS, ERATTAKULANGARA ROAD, PACHALAM, COCHIN. 5. A.B. JAYANTHI, D/O. BABA SHET, W/O. K.V. RAMACHANDRAN, PUTHIYADATHIL HOUSE, PALLURUTHY, KOCHI-6. 6. URMILA JEEVANDAS, W/O. LATE JEEVANDAS, AGED 52, RESIDING AT PUTHEN MADAM, POONITHURA.P.O KOCHI. -2- R.F.A.NO.446/09 7. BABA JEEVANDAS, S/O. LATE JEEVANDAS AGED 32 RESIDING AT PUTHEN MADAM POONITHURA.P.O. KOCHI. 8. SHAKEELA, D/O. LATE JEEVANDAS AGED 36 W/O. V.K.BABU, SARANATH,D/20, ANUSHAKTI NAGAR, BOMBAY-94. 9. SASIKALA, D/O. LATE JEEVANDAS AGED 34 W/O. JIJAY BOBBY M 64/I.T.V. CROSS STREET BESANT NAGAR, MADRAS-600090 10. SHEELA, D/O. LATE JEEVAN DAS AGED 30 W/O. C.P.CHANDRAN CHILANKA, POONITHURA.P.O., KOCHI. 11. SUSEELA, D/O. LATE JEEVANDAS AGED 28, W/O. KRISHNAMOORTHY, H.NO. 8, BATTACHARJEE STREET XL/800 VAGAI, VIRUGAMPAKLKAM, MADRAS-600092 12. JAMEELA, D/O. LATE JEEVANDAS, AGED 26 W/O. JAYARAJAMN, B 10-51 Q-2 SECTOR 15, VASHI, NEW BOMBAY-400763. 13. VIJAYAKUMAR, W/O. LATE A.B.DEVARAJ AGED 58, VIJAYABHAVAN, ANCHUMOORTHY MANGALAM, THEKKETHARA, PALAKKAD. 14. DEVENDRANATH, S/O. A.B. DEVARAJ, VIJAYABHAVAN, ANCHUMOORTHY MANGALAM, THEKKETHARA, PALAKKAD. 15. SMITHA, D/O.A.B. DEVARAJ, VIJAYABHAVAN, ANCHUMOORTHY MANGALAM, THEKKETHARA, PALAKKAD. ADDL. 16. MRS. SHOBHA, WIFE OF DAYANANDA SJET. AGED 67, RESIDING AT ALUNGAPARAMBIL HOUSE, ERATTAKULANGARA ROAD, PACHALAM, COCHIN 682 012 NOW RESIDING AT 92(C), LIGHT INDUSTRIAL AREA, NEAR AMARDHARAM KANT, BHILAI, DURG DISTRICT, CHATTISGARH STATE. '' 17. MR. SUNIL, S/O. DAYANANDA SHET, AGED 45, RESIDING AT -DO- -DO- '' 18. MRS. PURNIMA, D/O.DAYANANDA SHET, AGED 42, RESIDING AT -DO- -DO- '' 19. MR. ANIL, S/O.DAYANANDA SHET, AGED 39, RESIDING AT -DO- -DO- '' 20. MR. SURESH, S/O.DAYANANDA SHET, AGED 36, RESIDING AT -DO- -DO- '' 21. MR.CHANDRESH, S/O. DAYANANDA SHET, AGED 33, RESIDING AT -DO- -DO- -3- R.F.A. NO.446/09 (ADDL. R16 TO 21 REPRESENTED BY POWER OF ATTORNEY SRI G.S.PANDURANGA, S/O.GOVINDA RAJ, AGED 59, ALUNGAPARAMBU, 10/70, FORT COCHIN, COCHIN-2. (The legal representatives of deceased 2nd respondent are impleaded as additional respondents 16 to 21 vide order dtd. l7/12/09 in IA.No.4418/09). ADV. SRI.C.P.PEETHAMBARAN FOR R5 ADV. SRI.MAT.PAI FOR ADDL. R16 TO 21 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE THE FOLLOWING: R.F.A. NO.446/01 ORDER ON I.A.NOS.2532 & 2954/09 IN R.F.A.NO.446/01 --------------------- DISMISSED 3/3/2010 Sd/- Justice Harun-Ul-Rashid, Judge. HARUN-UL-RASHID, J. ------------------------------------- R.F.A.NO.446 OF 2009 --------------------------------------- DATED THIS THE 3RD DAY OF MARCH, 2010 JUDGMENT The 4th respondent in I.A.No.6156/95 in O.S.No.157/74 on the file of the Principal Sub Court, Ernakulam is the appellant. He is the 3rd defendant in the suit. The court below passed a preliminary decree dated 5/8/1985 for partition declaring that the plaintiff and defendants 1 to 4 are entitled to get 1/5 share each from the plaint schedule properties. The 4th defendant in the suit filed I.A.No.6156/95 for passing the final decree. Defendants 6 to 12 are the legal heirs of the deceased lst defendant. In the final decree proceedings the court below deputed a Commissioner to effect partition by metes and bounds. The Commissioner submitted his report dated 20/6/2006 and plan. The Commissioner divided the decree schedule property into 5 plots having an extent of 5.560 cents each serially marked as plots A, B, C, D and E. After hearing the parties, the court below corrected certain -2- R.F.A.No.446/09 mistakes in the Commissioner's report as agreed to by the parties. The court below accepted the Commissioner's report and plan subject to the corrections made by the court. By the impugned judgment the court below allotted plot B to the plaintiff, plot A to the 2nd defendant and plot C to the 4th defendant respectively. The valuation of the building made by the Commissioner was found to be proper. The balance two plots, namely, plots D and E are not allotted to defendants 1and 3, as there is no application from their side. 2. The learned counsel for the appellant/3rd defendant submitted that the appellant filed I.A.No.2954/09 before this Court praying to allot 1/5 share. The appellant submitted that he is prepared to remit the requisite court fee for allotment of his share and he requested this Court to allot plot E in Ext.C2 plan. The learned counsel also submitted that Rs.20,000/- is the share of the building allotted to all the sharers and therefore, the appellant is -3- R.F.A.No.446/09 also entitled to get Rs.20,000/- towards the share of the building. 3. I have examined the contentions raised by the appellant. I find that the final decree was passed in terms of the preliminary decree, after taking into consideration the Commissioner's report and plan. I find no reason to interfere with the judgment and decree passed by the court below. At the same time, the request of the appellant that he shall be allotted plot E in Ext.C2 plan requires consideration. If the appellant remits the requisite court fee for allotment, the court below shall reopen the matter only for the purpose of making allotment of plot E in Ext.C2 plan to the appellant, for which a modification of the final judgment is necessary. In the result, the appeal is partly allowed. The judgment and decree dated 15/11/2008 passed by the court below is modified. The court below shall reopen the matter for the purpose of making -4- A.S.No.446/09 allotment of plot E in Ext.C2 plan to the appellant on payment of requisite court fee. The appellant shall be paid his share of the building and B schedule movables. The revised final judgment and decree shall be passed by the court below within a period of four months from the date of receipt of a copy of this judgment. The judgment and decree passed by the court below in respect of other sharers are confirmed. The parties shall appear before the court below on 16/3/2010. Send back the records immediately. HARUN-UL-RASHID, JUDGE. kcv.