IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 A.S.No. 318 of 1996() -------------------- AGAINST THE ORDER DATED 27/03/1995 IN IA 631/81 IN OS.130/1978 of SUB COURT, KASARAGOD .................... APPELLANT(S): ----------- MALINGAN, S/O. PATTI HENGSU, RESIDING AT MEELAEADKAM, MEETHALEVEEDU OF ADHUT VILLAGE, P.O. MULLERIA, KASARAGOD TALUK BY ADV. SRI.KODOTH SREEDHARAN NAIR RESPONDENT(S): --------------- 1. ICHIRA HENGSU, D/O. CHOYICHI HENGSU, 2. THAMBAYI, 3. CHOYICHI, 4. BALAKRISHNAN 5. SUKUMARAN 6. V. CHOYICHI 7. V. THAMBAI 8. V. CHANDRAN, 9. V. GANGADHARAN 10. V. VIYAYAN AS.No. 318 of 1996 -:2:- 11. V. SHYAMALA 12. CHAPPILA 13. GOPALA 14. SUSHEELA 15. LAXMI 16. BHASKARA (No. 2 to 5 are children of No. 1 Ichire Hengsu. No. 1 to 5 are Hindus, cultivators residing at Ravaneshwaram of Chittari village and Post, Hosdurg Taluk. No. 4 and 5 are minor represented by guardian Ist respondent. Now. 6 to 11 are Hindus, cultivators residing in Badankai of Bendadka village, P.O. Bandadka, Kasaragod District, out of which the 6th respondent is the wife of deceased Malinga and respondents 7 to 11 are her children of which respondents 10 and 11 are minors represented by the 6th respondent as guardian and mother. Nos. 12 to 16 are Hindus agriculturalists, residing at Cherikandam of Adhur village, Kasaragod Taluk, P.O. Urdoor, Kasaragod District). ADV. SHRI HARI & ADV. SMT. P.VANI THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. NO. 318 of 1996 * * * * * * * * * * * * * * * * * * Dated: Ist day of June, 2009 JUDGMENT The first defendant in O.S. No. 130 of 1978 on the file of the Subordinate Judge's Court, Kasaragod challenges the quantum of mesne profits saddled on him by the court below while passing the final decree dated 27-3-1995. 2. The following facts are not in dispute:- The plaintiffs are entitled to 50 ½ cents consisting of 8 ½ cents comprised in R.S. 39/3A2 of Adhur Village and 42 cents comprised in R.S.39/3B2 . The defendants are entitled to 60 cents consisting of 10 cents comprised in R.S. 39/3A1 and 50 cents comprised in R.S. 39/3B1. As per the decree as modified by the final decree the plaintiffs are entitled to past mesne profits for two years and also future profits payable by the first defendant. 3. According to the appellant/first defendant, the final decree court has erred in not adopting the price of A.S. 318 of 1996 -:2:- paddy and acrecanut which was prevailing during the relevant years as was held in 1958 KLT 83. The learned counsel for the respondents/plaintiffs would submit that the price of paddy and arecanuts have been properly reckoned by the Commissioner. 4. During the course of consideration of this appeal it was noticed that in the Share List dated 30-6-1992 submitted by the Advocate Commissioner, the class of land for the 8 ½ cents of land comprised in R.S. 39/3A2 allotted to the plaintiffs both in the past as well as in the present, is shown as wet land. However, in the income list dated 30-6-1992 submitted by the Advocate Commissioner, the income from 8 ½ cents of wet land comprised in R.S. No. 39-3A2 which is now stated to be an areca garden, is shown as 9.10 muras of paddy and the income from 42 cents of land comprised in R.S. 39/3B2 which has always been classified as a wet land is shown as 6682 arecanuts. It is not known as to how 8 ½ cents of areca garden is shown as producing 9.10 muras of paddy and 42 cents of A.S. 318 of 1996 -:3:- wet land is shown as yielding 6682 arecanuts. This obvious mistake has evidently resulted in the valuation of the share list as well as income from the properties. The matter has, therefore, to go back to the final decree court to rectify the aforesaid patent mistake. The final decree court shall remit the matter to the same Commissioner namely, Advocate Sri. M. Mahalinga Bhat and seek necessary rectification and if need be, obtain a revised income list and valuation statement. The Court below shall also consider whether the principles laid down in 1958 KLT 83 regarding the price of yield to be adopted are also to be applied to the facts of this case. In as much as there is no dispute regarding the shares and centage allotted to the respective parties , I am not setting aside that part of the final decree regarding the allottment of the immovable properties. Therefore, it is clarified that this remit shall not stand in the way of the respective sharers being put in possession of their portion of the land subject to a revised valuation of the profits based on the A.S. 318 of 1996 -:4:- classification of the land, the nature of income and the price of the yield thereon. In the result, this appeal is allowed in part and remanded to the court below. Parties shall appear before the court below on 6-7-2009 without any further notice. The Court below shall give top priority to this case having regard to the fact that the suit was of the year 1978. The Court below shall submit a status report of the case through the Registry of this Court on or before 24-8-2009. The Registry shall forthwith re-transmit the lower court records to the court below. The parties shall bear their respective costs in this appeal. Dated this the Ist day of June 2009. Sd/-V. RAMKUMAR, (JUDGE) ani. /true copy V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. NO. 318 of 1996 * * * * * * * * * * * * * * * * * * Dated: Ist day of June, 2009 JUDGMENT