IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 AS.No. 1049 of 1998(B) ------------------------------- AGAINST THE ORDER DATED 11/04/1997 IN IA.507/92 IN OS.25/1989 of ADDL.DISTRICT COURT-I, MAVELIKKARA .................... APPELLANT(S): COUNTER PETITIONERS 6 TO 11 / DEFENDANTS 7 TO 12. --------------------------------------------------------------------------------------------------------- 1. RAGHAVAN PILLAI KESAVA PILLAI, AMPEETHARA VEEDU, KANDALLOOR VADAKKUM MURI, KANDALLOOR VILLAGE, PATTOLY MARKET P.O.,ALLEPPEY DISTRICT. 2. RAGHAVAN PILLAI, PADMANABHA PILLAI, DP. DP. 3. RAGHAVN PILLAI RADHAKRISHNA PILLAI, DO. DO. 4. RAGHAVAN PILLAI PARAMESWARAN PILLAI, DO. DO. 5. RAGHAVAN PILLAI PADMA KUMAR @ SANKU, DO. DO. 6. RAGHAVAN PILLAI VISHNU KUMAR, DO. DO. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN RESPONDENT(S): PETITIONER & COUNTER PETITIONERS 1 TO 5/PLAINTIFF & --------------------------------------------------------------------------------- DEFENDANTS 2 TO 6. 1. AYYAPPAN CHELLAPPAN, PRAKASH DISPENSARY, KANDALLOOR SOUTH MURI, ARATTUPUZHA VILLAGE, KANDALLOOR P.O., ALLEPPEY DISTRICT. (DIED) 2. BHARATHAN, KULANGASSERIL, KANDALLOOR SOUTH MURI, KANDALLOOR P.O., ALLEPPEY DISTRICT. 3. BHARGAVAN, KLASSERIL, DO. DO. 4. KOCHUAPPPU ANANDAN, PUTHENMANNIL, DO. DO. 5. KRISHNAN KUTTY, AMPEETHARA PUTHUVAL, DO. DO. 6. SANTHA, DO. DO. *ADDL. R7 TO R9 IMPLEADED. 7. K.RAJAMMA, W/O. LATE AYYAPPAN CHELLAPPAN, ''MADATHIL,'' KANDALLOOR SOUTH MURI, KANDALLOOR P.O., ALLEPPEY DISTRICT. 8. DR. CHARIPRAKASH, S/O. LATE AYYAPPAN CHELLAPPAN, ''MADATHIL'', KANDALLOOR SOUTH MURI, KANDALLOOR P.O., ALLEPPEY DISTRICT. 9. DR. C.GANGA, D/O. LATE AYYAPPAN CHELLAPPAN, ''MADATHIL'', KANDALLOOR SOUTH MURI, KANDALLOOR P.O., ALLEPPEY DISTRICT. *ADDL. R7 TO R9 ARE IMPLEADED AS PER ORDER DTD. 5.02.2003 IN CMP. NO.6193/2002. R1 , ADDL. R7 TO R9 BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.8314/1998 IN AS. NO.104/1998 DISMISSED 21/07/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. No. 1049 OF 1998 = = = = = = = = = = = = = = = Dated this the 21st day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Addl. District Judge-I, Mavelikkara in I.A.507/92 in O.S.25/89. As per the final decree the Court below accepted Ext.C5 plan and allowed plot No.III shown as PQRSTUA in Ext.C5 plan with the tea-shop therein to the share of defendants 7 to 12. The remaining portion of the plaint schedule property except the 10 cents, excluded as the kudikidappu of defendants 5 and 6, is allotted to the share of the plaintiff. Then some amount is also mentioned therein. A final decree has to be passed in accordance with the preliminary decree. A.S. No. 1049 OF 1998 -2- 2. The suit is one for redemption of a mortgage and for partition. As per the judgment dated 4th July 1992 a preliminary decree for partition was passed ordering for redemption and division. It was also directed that the plaintiff be allowed to recover possession of 4/5 shares and the remaining one share be given to defendants 7, 12 jointly. While effecting the division an extent of 10 cents surrounding the kudikidappu of defendants 5 and 6 shall be left out. Allotment of one share for defendants 7 onwards shall be made in such a manner as to take-in the room in the occupation of defendants 2 to 4. The plaintiff is entitled to realise mesne profits and the defendants 7 to 12 are entitled to value of improvements. Accordingly a Commissioner was appointed and with due respect to the Commissioner he has created more A.S. No. 1049 OF 1998 -3- confusion than what is necessary, for the reason that his duty was to effect a division strictly in accordance with the preliminary decree and he should not have been swayed by the different representations made by the parties to him. 3. Learned counsel for the appellants would submit before me the old building wherein defendants 2 to 4 were doing business had fallen down and the foundation of the building is available in the property and it is in and around that basement the property is to be allotted to defendants 7 to 12 as per the preliminary decree. It is also contended by the learned counsel that on the western extremity of the property a reclamation has been done after the mortgage by appellants and their father and therefore it has to be excluded from being partitioned and so it has also to be looked A.S. No. 1049 OF 1998 -4- into. On the other hand the learned counsel for the plaintiff would contend that the trial court has properly appreciated the matter and it does not call for any interference. 4. Let me first dealt with the question whether the property alleged to have been reclaimed by the defendants is to be excluded from partition. There was a contention in the suit that they had reclaimed 10 cents of property after the mortgage and therefore it has to be separated. But no evidence was tendered and no finding is rendered by the trial court to the effect that 10 cents is to be excluded from the purview of the mortgage or from the partition. Therefore now at a belated stage, i.e. at the final decree stage to exclude that property cannot be entertained. Therefore the said contention is not acceptable. The A.S. No. 1049 OF 1998 -5- Commissioner who had inspected the property found that the total extend available is 91.5 cents. According to him 10 cents of property shown as No.2 in violet colour in Ext.C4 plan is the kudikidappu which is liable to be excluded. The way marked as '3' having an extent of 5 cents is also to be excluded. The Commissioner has recommended exclusion of 1.75 cents of land wherein a shed is constructed and the 2nd defendant is running a tea-shop. The 2nd defendant does not have any right over the property and it is only a temporary shed and since it is part and parcel of the plaint schedule property and as the 2nd defendant is bound by the decree he is not entitled to get any right over the property and the said 1.75 cents is not liable to be excluded from the division. Therefore out of 91.5 cents when 10 A.S. No. 1049 OF 1998 -6- cents of kudikidappu and 5 cents of way are deleted the total extent of property available would be 76.5 cents. When 1/5 share is worked out, share of defendants 1 to 12 will come to 15.3 cents. 5. Now the major question is regarding the allotment. The learned District Judge thought it fit to point out the temporary shed alleged to be in the property as the building said to be occupied by defendants 2 to 4 in the preliminary decree. It has to be mentioned it is only a temporary thatched shed which was not in existence even at the time of the institution of the suit. The Commissioner who had inspected the property had specifically stated that the building as such is not in existence there but there is a foundation and that foundation is seen by him and therefore he had allotted plot A.S. No. 1049 OF 1998 -7- No.1 in Ext.C4 plan as the property to be allotted to defendants 7 to 12. The finding of the learned District Judge shifting this property to the western extremity is without any material. Further it can be seen from the preliminary decree that it is a pakka room which was in the occupation of defendants 2 to 4. Therefore the basement which is pointed out by the Commissioner is the basement where the building stood. Therefore the Commissioner's assessment that it is the basement that has to be taken note of in carving out the property in favour of defendants 7 to 12 appears to be correct and proper. Therefore the learned District Judge's observation that Ext.C5 plan has to be accepted and partition is to be effected is to be set aside and Ext.C4 plan is to be looked into, accepted and it shall form A.S. No. 1049 OF 1998 -8- part of the final decree. 6. As per the preliminary decree defendants 7 to 12 are jointly entitled to realise value of improvements and the quantification is left to be decided in the final decree proceedings and unfortunately the learned District Judge had held that the defendants have failed to prove that they have effected value of improvements. It is a wrong finding. The Commissioner who had inspected the property had seen so many Poovarasu trees standing in the property and had estimated the value of the entire thing at Rs.96,250/- and deducted some amount and arrived at Rs.72,188/- of which defendants 7 to 12 are entitled to 4 out of 5 shares. There are no materials to ascertain the real value of the trees. The age of the trees are also not seen stated. Therefore it is difficult to assess the A.S. No. 1049 OF 1998 -9- exact value of improvements. 7. The mesne profits, I find, is calculated at the rate of Rs.185/- for a period of 20 years. Considering the materials available I feel that the amount due and the amount to be paid shall be mutually set off and thereby making the plaintiffs not entitled to any mesne profits further and defendants not entitled to any further value of improvements. 8. Therefore I set aside the judgment and decree of the learned Additional District Judge and a final decree is passed as follows. (1) The property described as item No.1 in Ext.C4 plan (DTQFGHV) be allotted to the share of defendants 7 to 12. (2) The remaining portion of the property be allotted to the share of the plaintiffs jointly. A.S. No. 1049 OF 1998 -10- (3) Ext.C4 shall form part of the final decree. (4) Parties are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- A.S. No. 1049 OF 1998 -11- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 1049 OF 1998 = = = = = = = = = = = J U D G M E N T 21st July, 2010.