IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 RFA.No. 311 of 2003() -------------------------- AGAINST THE ORDER DATED 31/01/2002 IN IA.1621/66 IN OS.24/1953 of SUB COURT, OTTAPPALAM .................... APPELLANT/292ND RESPONDENT ---------------------------------------- M.K.MUHAMMED UNNI, AGED 55, S/O.KUNHANAMMED, VADAKKEKKADAMSOM, KALLOOR P.O., CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADVS. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SRI.JOHN A. THOMPRA SRI.FIROZ SADIK SAIT RESPONDENT(S):PETITIONER AND 3RD RESPONDENT --------------------------------------------------------------- 1. NARAYANAN NAMBOOTHIRI,S/O.NARAYANAN NAMBOOTHIRI, MULLAMANGALATH MANAKKAL, AGE 65, VADAKKEKKADAMSOM, KALLOOR P.O., CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. DEVASENA ANTHERJANAM, D/O.NARAYANAN NAMBOOTHIRI, MULLAMANGALATH MANAKKAL, AGED 68 YEARS, VADAKKEKKADAMSOM, KALLOOR P.O., CHAVAKKAD TALUK, THRISSUR DISTRICT. R1 BY ADV. SRI.SANTHEEP ANKARATH THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs ORDER ON I.A. NO.1825/2003 IN R.F.A. NO.311/2003 DISMISSED 03/02/2011 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs M.N. KRISHNAN,J. ........................................... R.F.A.NO.311 OF 2003 ............................................. Dated this the 3rd day of February, 2011. J U D G M E N T This is an appeal preferred against the order of the Subordinate Judge's Court, Ottapalam in I.A.1621/1966 in O.S.No.24/1953. The suit was one for partition and a final decree had been passed. Though a large number of items formed the subject matter of the partition suit, item 2 of B1 schedule was found to be the item available for division by metes and bounds and a final decree is passed in accordance with the same. The present appellant is the 292nd respondent in the final decree, who is the son of the 12th defendant in the suit. 12th defendant namely father of the present appellant had set up a tenancy with respect to 22 cents of land from the first defendant. The matter was considered by the trial court in its well considered judgment delivered in 1958 and held that the 12th defendant's case of lease is not true and so the case of oral lease was found against. The discussion is made in para 72 of the judgment. Here the finding is : 2 : R.F.A.NO.311 OF 2003 that the oral lease set up by the 12th defendant is not true and binding on the illom. It is true that in para 100 so far as alienation are concerned which are found to be not valid and binding, the alienees will be entitled for value of improvements. So the question of improvement was confined to a set of people who claimed right under alienation which were invalidated by the court. There is nothing with respect to the 12th defendant since he is not an alienee. 2. The learned counsel for the appellant would submit before me that the extent outstanding in his possession is much more than 22 cents of property and since the claim relates to only 22 cents, the final decree passed and the division made is not proper. It is not correct for the following reasons. Item No.2 of B1 schedule is having an extent of more than one acre and over that item the predecessor in interest of the present appellant claimed 22 cents of land as a tenant, or in other words, the right with respect to which the father of the appellant claimed tenancy right was only with respect to 22 cents of land in item 2 which really : 3 : R.F.A.NO.311 OF 2003 cover a larger extent. Therefore the division made with respect to more than 22 cents cannot be said to be incorrect and so the said contention cannot be accepted. I am informed that after the decree was confirmed by this Court, the present appellant moved a suit before the Subordinate Judge's Court, Ottapalam for setting aside the judgment and decree made by the court which had been dismissed and subsequently an appeal has been preferred. Until and unless the judgment of the court are set aside, it is binding on the parties and the parties cannot take recourse to the pendency of some other proceedings in another court. So from these discussions it is crystal clear that the claim with respect to 22 cents was the only claim made and secondly the judgment did not grant any value of improvements to the 12th defendant. The present appellant is claiming right under the 12th defendant and therefore he cannot have a wider range of contention than the one which the father has in so far as this suit is concerned. Therefore I find that the trial court has not committed : 4 : R.F.A.NO.311 OF 2003 any error and the appeal fails and therefore it is dismissed. M.N. KRISHNAN, JUDGE. cl : 5 : R.F.A.NO.311 OF 2003