IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 AS.No. 410 of 2002() -------------------- AGAINST THE ORDER DATED 25/09/2000 IN IA. 1572 /1992 IN OS.325/1990 of ADDL.SUB COURT, THALASSERY .................... APPELLANT/PETITIONER/PLAINTIFF: ----------------------------------- KUNHIPURAYIL USMAN, (DIED) S/O. KUNHAMINA UMMA, THIRUVANGAD AMSOM, CHIRAKKARA DESOM, P.O. THIRUVANGAD, THALASSERY, DIST. KANNUR. ADDL. 2. P.K. SUBAIDHA, W/O. LATE P.K.USMAN, ALANKAR ;MANZIL, PILACKOOL, THALASSERY-2, KANNUR DISTRICT. '' 3. P.K. SHAMEER, S/O. LATE P.K.USMAN, -DO- -DO- '' 4. SABIRA. P.K., D/O. LATE P.K. USMAN, -DO- '' 5. RADHEEA. P.K., D/O. LATE P.K.USMAN, -DO- '' 6. RAJEENA. P.K., D/O. LATE P.K.USMAN, -DO- '' 7. SAJEER P.K.,S/O.LATE P.K. USMAN, -DO- (M INOR REPRESENTED BY HIS MOTHER AND GUARDIAN P.K. SUBAIDA, IST PETITIONER) '' 8. SAGEER P.K., S/O. LATE P.K. USMAN (M INOR REPRESENTED BY HIS MOTHER AND GUARDIAN P.K. SUBAIDA, IST PETITIONER) (THE SOLE APPELLANT DIED AND THE LEGAL REPRESENTATIVES OF THE DECASED SOLE APPELLANT ARE IMPLEADD AS ADDL. APPELLANTS 2 TO 8 AS PR ORDER DATED 3/6/09 I I.A.NO.1373/209 BY ADV. SRI.C.P.KUNJHIKANNAN SMT.VIDHYA. A.C SRI.A.C.VENUGOPAL RESPONDENT/RESPONDENT/DEFENDANT: ------------------------------------ KUNHIPURAYIL RABIA, D/O. KUNHAMINA UMMA, NATH HOUSE, THIRUVANGAD AMSOM, CHIRAKKARA DESOM, P.O. THIRUANGAD, THALASSERY, DIST. KANNUR. ADV. SRI.K.V.SOHAN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.2441/2004 IN A.S.NO.410/2002 ---------------- DISMISSED 13/10/2009 Sd/- Harun-Ul-Rashid, Judge. True Copy HARUN-UL-RASHID,J. --------------------------- A.S.NO.410 OF 2002 --------------------------- DATED THIS THE 13TH DAY OF OCTOBER, 2009 JUDGMENT Plaintiff is the appellant. The matter arises in final decree proceedings. A preliminary decree was passed by the trial court on 30/11/1991 in O.S.No.325/1990. 2. Preliminary decree was passed directing division of the property into 3 equal shares by metes and bounds and two shares shall be allotted to the plaintiff and 1 share to the defendant. Plaintiff is the brother and defendant is the sister. In the preliminary decree it was held that as far as possible the house in the plaint schedule property shall be allotted to the share of the defendant. 3. The plaintiff filed I.A.No.1572/1992 for passing final decree. The final decree court issued a Commission. The Commissioner's report and plan were marked as Exts.C9 to C12. The property is having an extent of 17 cents. The parties adduced -2- A.S.No.410/02 evidence in the final decree proceedings. In the final decree court PW-1 and RW-1 were examined and Exts.A1 to A5 and C1 to C12 were marked. The court, after considering the materials on record, held that the division made by the Commissioner vide Exts.C9 to C12 is acceptable. The Commissioner divided the property into two and reported that A schedule shall be allotted to the plaintiff and B schedule to the defendant. The Commissioner produced two share lists marked as Exts.C11 and C11(a). Ext.C12 is the plan. As per Ext.C11(a) share list the Commissioner allotted 6 cents to the plaintiff and 11 cents with the house to the defendant. The final decree court accepted Ext.C11(a) share list by which an extent of 6 cents was allotted to the plaintiff and 11 cents with the house was allotted to the defendant. For equlisation of shares the final decree court directed the defendant to pay a sum of Rs.1,65,700/- to the plaintiff. 4. It cannot be disputed that the plaintiff is entitled -3- A.S.No.410/02 to2/3 share and the defendant sister is entitled to only 1/3 share. The defendant-sister was occupying the house at the time of filing the suit and therefore the preliminary court directed that as far as possible the house shall be allotted to the defendant. By the order under challenge in the final decree proceedings, the court below in fact granted 1/3 share to the plaintiff and 2/3 share to the defendant. Going by the total extent of property, which is having 17 cents, what the final decree court did was by allotting 11 cents with a building to the defendant and only 6 cents to the plaintiff. In fact the final decree court had allotted 2/3 share to the defendant and 1/3 share to the plaintiff. By no stretch of imagination, the allotment made by the final decree court is acceptable. 5. The learned counsel for the appellant/plaintiff submitted that the total extent of property on measurement is only 15.80 cents. The appellant also produced a plan showing the measurement and division of the property prepared by the -4- A.S.No.410/02 Licensed Building Supervisor, Department of Urban Affairs, Kerala State. Since the said plan is necessary for the division of the property, the same is received in evidence and marked as Ext.A6. As per Ext.A6 plan, the property was divided into 3 plots, namely, A plot having an extent of 6 cents, B plot 5.70 cents with a residential building and C plot 4.10 cents totalling to 15.80 cents. According to the appellant, plot A and C can be allotted to the appellant and B plot to the defendant. Taking into account the facts that the defendant is entitled to only 1/3 share, she is entitled to 5.30 cents, since the situation of the building is in such a way that the defendant may find it difficult to enjoy the property. As per Ext.A6 plan, the property is divided in such a way that B plot is shown as 5.70 cents. 6. The final decree court divided the property in unjust manner allotting 2/3 extent to the defendant and 1/3 to the plaintiff. In the circumstances, the order passed in I.A.No.1572/92 is set aside. The final decree court shall refer the -5- A.S.No.410/02 matter to the Commissioner for preparing a plan in line with the division made in Ext.A6 plan and shall work out the equities for the purpose of equilisation of shares. If some more short extent is necessary for the enjoyment of the house, the same shall be considered by the court. Such extent shall not exceed more than 1 cent. 7. In the result, the appeal stands allowed. The decree and judgment of the of the final decree court is set aside. The final decree court is directed to pass fresh orders, after considering the revised plan to be prepared by the Commissioner, within four months from the date of receipt of a copy of this judgment. The parties shall appear before the final decree court on 28/10/2009. Transmit the records without delay. HARUN-UL-RASHID, Judge. kcv. -6- A.S.No.410/02 -7- A.S.No.410/02 HARUN-UL-RASHID,J. -------------------------- A.S.NO.410 OF 2002 -------------------------- JUDGMENT 13th October, 2009