IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 RFA.No. 301 of 2010() --------------------- OS.59/2004 of SUB COURT, OTTAPPALAM .................... APPELLANT/1ST DEFENDANT(S): -------------------- MUHAMMEDALI,AGED 60,S/O.LATE USSAINAR, THALIKKUZHI HOUSE,KONIKKUZHI P.O,PULPPATTA, OTTAPPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENT(S)/PLAINTIFF AND DEFENDANTS 2 AND 3: --------------- 1. YUSAF,AGED ABOUT 54 YEARS,S/O.LATE USSAINAR,THALIKKUZHI HOUSE,KONIKKUZHI P.O, PULAPPATTA,OTTAPPALAM. 2. AMINA,AGED ABOUT 64,D/O.LATE USSAINAR, THALIKKUZHI HOUSE,KONIKKUZHI P.O, PULAPPATTA,OTTAPPALAM. 3. NABEEZA,AGED ABOUT 56,D/O.LATE USSAIRNAR THALIKKUZHI HOUSE,KONIKKUZHI P.O, PULAPPATTA,OTTAPPALAM. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO.1729/2010 IN R.F.A.NO.301/2010 DISMISSED. 4.6.2010 SD/- THOTTATHIL B. RADHAKRISHNAN, JUDGE SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- R.F.A.NO.301 OF 2010 () & C.M.APPLN.NO.773 OF 2010 IN R.F.A.NO.301 OF 2010 ----------------------------------- Dated this the 4th day of June, 2010 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. The 1st defendant in a suit for partition is the appellant. A preliminary decree was passed earlier. Controversy between the parties regarding the identity and extent of plaint schedule item No.1 reached this Court in R.F.A.No.508 of 2008. This Court noticed that the dispute is only regarding the actual extent available as plaint item No.1 and not regarding the shares. This Court set aside the direction in the preliminary decree relegating that issue to the final decree stage. Resultantly, this Court remitted the preliminary decree proceedings requiring the court below to decide on the extent of plaint Item No.1 in the preliminary decree stage itself. That remand order has become final. After remand, the plaintiff obtained leave to amend the RFA.301/10 2 plaint to the effect that plaint item No.1 is 1.08 acres instead of 71 cents as originally shown. Though written statement was filed, no documentary evidence supported the defence. The parties also did not bring on record any further Commissioner's report. The court below therefore decided the case on the basis of the documents and held that on the basis of the documents, the total extent of plaint item No.I is 1.08 acres. Obviously, therefore, the actual extent available on measurement will be as determined in the final decree proceedings. Since the court below has passed a preliminary decree based on documents, we affirm it since it cannot be treated as in any manner violative of the directions contained in the remand order passed by this Court in R.F.A.No.508 of 2008. 2. However, we need to state that the court below will be advised to modify the last paragraph of the impugned judgment since a preliminary decree for partition ought not to be issued by merely stating that it is issued in modification of the earlier preliminary decree. Whatever be the effect of the earlier RFA.301/10 3 preliminary decree, which merged in the remand order in R.F.A.No.508 of 2008, all such modifications have to be shown in a proper form as the last paragraph of the judgment in terms of the Code of Civil procedure and Civil Rules of Practice. Otherwise, that would only lead to confusion. This could also be done suo motu with notice to the parties. Subject to what is stated above, this appeal deserves to be dismissed. In view of the above, no useful purpose will be served by condoning the delay in filing this appeal. Hence the delay petition and the appeal are dismissed. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp