IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WP(C).No. 10624 of 2008(M) -------------------------- OS.421/1981 of PRL.M.C.,NEYYATTINKARA .................... PETITIONER(S): ------------------------ RAMAN PANICKER THULASIDAS, 'SUSEELDHARA', PONVILA, AYIRA P.O., PARASSALA, NEYYATTINKARA. BY ADVS. MR.L.MOHANAN, SMT.LIGEY ANTONY. RESPONDENT(S): --------------------------- 1. GANGADHARA PANICKER VIJAYAN, PUTHUVAL PURAYIDOM, POTTAYILKADA, PLAMOOTTUKADA P.O., NEYYATTINKARA. 2. KANTHIMATHI LALITHA OF -DO- -DO-. 3. SUKUMARAN LAMBODARAN OF -DO- -DO-. 4. K. THANKAMMA, PUTHUVAL PUTHEN VEEDU, POTTAYILKADA, PLAMOOTTUKADA P.O., NEYYATTINKARA. 5. S. JYOTHI BOSE OF -DO- -DO-. 6. T. SAROJAKUMARI OF -DO- -DO-. 7. RAJAPPAN NADAR RAFEL NADAR, NALUKETTU BENGLOW, EANTHIKALA PURAYIDOM, ARAYOOR P.O., NEYYATTINKARA. 8. MARGREETE MARY VALSALA, ENTHIKALA PUTHEN BUNGLOW, POTTAYILKADA, ARAYOOR P.O., NEYYATTINKARA. 9. CHINNATHAMPI NADAR BENSIOR OF -DO- DO-. Kss ..2/- ...2..... WPC.NO.10624/2008 M 10. JNANASUNDARI MARIYAPUSHPAM, PANICHAPARAMBU VEEDU, PADAPARAKKA VILA, PLAMOOTTUKADA P.O., NEYYATTINKARA. 11. JNANASUNDARI SUSEELA OF -DO- -DO-. 12. JNANASUNDARI THRESSI OF -DO- -DO-. 13. JNANASUNDARI KAMALAM OF -DO- -DO-. 14. THANKAPPAN NADAR NESAYYAN OF -DO- -DO-. 15. THANKAPPAN NADAR THANKARAJAN OF -DO--DO- 16. THANKAPPAN NADAR BENNIS OF -DO- -DO-. 17. JNANASUNDARI RAJAM OF -DO--DO-. 18. THANKAPPAN NADAR BINU OF -DO- -DO-. 19. ANNAMMA THRESSIAL, JEJP COTTAGE, EANTHIKALA, POTTAYILKADA, ARAYOOR P.O., NEYYATTINKARA. 20. THRESSIAL JOYIS VIMALAMBIKA OF -DO- -DO- 21. JOYIS BIYADRIS AMBIKA OF -DO- -DO-. 22. ELIYAS PRAKASH OF -DO--DO-. 23. THRESSIAL JOYIS RAJEEVKUMARI OF -DO--DO- 24. THRESSIAL JOYIS SAJEEVKUMARI OF -DO-DO- 25. PONNUPILLA NADAR SIMON, THOTTATHUVILAKOM, KADAYARAVEEDU, POTTAYILKADA, ARAYOOR P.O. NEYYATTINKARA. 26. APPIYAN NADAR SATHYA DAS, EANTHIKALA, S.L. BHAVAN, ARAYOOR P.O., NEYYATTINKARA. Kss ..3/- ..3... WPC.NO,.10624/2008 M 27. JOSEPH NADAR SELVAMKUTHU NADAR, THEKKEKALLUVILA BUNGLOW, POTTAYILKALA, ARAYOOR P.O., NEYYATTINKARA. 28. THAMARI GEETHA, EANTHIKALA VEEDU, POTTAYILKADA, ARAYOOR P.O., NEYYATTINKARA. 29. RAYAPPAN NADAR SAJEEVKUMAR @ SALU OF -DO- -DO-. 30. LAZAR NADAR DEVANESAN, PUTHUVAL PURAYIDOM, POTTAYILKADA, PLAMOOTTUKADA P.O., NEYYATTINKARA. 31. THANKARAJAN OF -DO- -DO-. 32. APPIYAMMA NADATHI SARASU OF -DO—DO-. R1 BY ADVS.MR.A.R.DILEEP, SMT.KAVITHA GANGADHARAN, SMT.SURYA SASI, MR.GEORGE VARGHESE(PERUMPALLIKUTTIYIL). R3 BY ADV. MR.G.S.REGHUNATH R7 TO R9 BY ADVS.MR.S.M.PREM, SMT.K.P.SANTHI, MR.S.S.HUSSAIN, MR.P.K.NIJOY. R10 TO R14, R16 TO R18 BY ADVS.MR.M.R.SARIN, MR.M.R.SASITH. R19 TO R29 BY ADV.MR.V.SURESH R30 TO R32 BY ADV.MR.G.SUDHEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.10624/2008 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PRELIMINARY JUDGMENT DTD. 30/01/1988. P2: COPY OF THE JUDGMENT IN A.S.495/1994 DTD. 24/02/2000. P3: COPY OF THE SUPPLEMENTARY PRELIMINARY DECREE DTD. 27/09/2002. P4: COPY OF THE SECOND PRELIMINARY DECREE DTD. 7/08/2004. P5: COPY OF THE SUPPLEMENTARY PRELIMINARY DECREE DTD.7/10/2004. P6: COPY OF THE ORDER IN I.A.1480/2004. P7: COPY OF THE PETITION I.A.7286/2003. P8: COPY OF THE COMMISSIONER'S REPORT DTD. 4/07/2007. P9: COPY OF THE INTERIM REPORT OF COMMISSIONER DTD.18/09/2006. P10: COPY OF THE ORDER DTD. 7/11/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.10624 of 2008 - M --------------------------------- Dated this the 26th day of August, 2009 JUDGMENT The writ petition is filed seeking the following reliefs: “i) To issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P10 and set aside the same so far as it deals with point No.2, as it is illegal and against order of remand. ii) To issue an writ of mandamus or other appropriate writ, order or direction directing the court below to pass final decree in respect of the plaintiffs share as allotted in Ext.P1 preliminary judgment without any further delay.” 2. Petitioner is the plaintiff in O.S.No.421 of 1981 on the file of the Munsiff Court, Neyyattinkara. Suit is one for partition. A preliminary decree and judgment was passed in the suit on 30.1.1988 allotting plaintiffs 97.1/8 cents as their share in the suit property which was described as having a total extent of 3 acre and 50 cents. Some of the defendants were also allotted separate shares which altogether took an extent of one acre W.P.(C).No.10624 of 2008 - M 2 86.1/2 cents. The preliminary decree and judgment so passed was challenged in appeal as A.S.No.495 of 1994 by the 23rd defendant/1st respondent in the writ petition. Defendants 24 and 25 filed an appeal in which they contended that they too are entitled to have shares in the suit property. The appellate court modified the preliminary decree directing that some of the defendants including 23rd defendant who claimed right over the suit property under some documents will be allotted shares in the remaining unallotted area, which was taken as 69 cents. In fact there was an error in holding that the allotted area out of 3 acres 50 cents of the suit property was 2 acres 81 cents which was actually 2 acres 83.5/8 cents. Whatever that be, the specific direction given by the appellate court was to give allotment to the 23rd defendant and other defendants shares in the unallotted area of 69 cents left behind after allotment made to the plaintiffs and others under the preliminary decree passed on 30.1.1988. On remission of the case, supplementary preliminary decree was passed on 29.1.2002 allotting 21 cents to 23rd defendant, 7 cents to 15th defendant and 8 cents to 70th defendant. 15th defendant is W.P.(C).No.10624 of 2008 - M 3 stated to be the pendente lite transferee of the 24th defendant and 70th defendant, the legal heir of the 25th defendant. After passing that preliminary decree some other defendants also moved for passing separate preliminary decree for allotment of shares in their favour. A supplementary preliminary decree was passed by the court on 7.8.2004 allotting 3.5 cents to 14th defendant, 2.5 cents to 16th defendant, 9.5 cents to 20th defendant and 4.5 cents to 19th defendant. Yet another supplementary preliminary decree was passed later on the request of 70th defendant and by that decree dated 7.10.2004 that defendant was allotted 7 cents. Meanwhile, the plaintiffs have moved an application for passing of a final decree. In the final decree proceedings, a commissioner was deputed to measure out the property with the assistance of a surveyor. When the commissioner carried out measurement with the assistance of a surveyor, it was found that the property has got only a much reduced extent than what was described in the suit. On measurement of the property it was found having an approximate area of 2 acres 88 cents. The question then W.P.(C).No.10624 of 2008 - M 4 emerged for consideration was what should be the proportionate reduction in respect of the shares allotted to the parties to be made in tune with the preliminary decrees passed. Plaintiffs contended that since they had been allotted specific area of 97.1/8 cents under the first preliminary decree passed in the suit proportionate deductions is permissible only from the 69 cents, unallotted area in the above decree, from which alone allotments were made to some of the defendants by passing supplementary preliminary decree later. In other words, plaintiffs contended that no proportionate deduction can be made from 2 acres 81 cents which was covered by the first preliminary decree passed by the court whereunder the plaintiff was allotted 97.1/8 cents. The commission report disclosed that portions of the suit property had been taken up for widening of a road. Taking note of that aspect and also other relevant circumstance involved, the court below came to the view that the plaintiffs and those defendants who had been allotted shares under the first preliminary decree dated 30.1.1988, also have to suffer the proportionate deduction when the extent available for partition W.P.(C).No.10624 of 2008 - M 5 on measurement is found to be less. Propriety and correctness of that order passed by the learned Munsiff, a copy of which is produced as Ext.P10, is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Both sides reiterated before me the respective case urged before the court below with the plaintiffs contending that since allotment and division from a specified area in suit property having been granted in their favour under the first preliminary decree, they are not liable to suffer any proportionate deduction when the extent of the property is found to be less and the contesting respondents resisting that challenge against the impugned order stating that when the extent of land available for partition on measurement is found to be less, the plaintiffs too have to suffer deduction irrespective of the question that the decree in their favour provided allotment for specific extent of land. After going through Ext.P10 order passed by the learned Munsiff and considering the submissions made by the counsel on W.P.(C).No.10624 of 2008 - M 6 both sides, I find that so far as the plaintiffs and also the defendants, who have been allotted shares under the first preliminary decree dated 30.1.1988 with specific extent of land in their favour, they are entitled to contend that the proportionate deduction they have to suffer must be restricted to the allotted area under that preliminary decree which is having 2 acres 81 cents. The other defendants who have got share by way of preliminary decree passed subsequently, it is seen, allotments are made only in the area of 69 cents which remained unallotted after providing shares to the plaintiffs and those defendants under the earlier preliminary decree. So much so, the question of proportionate deduction has to be considered with reference to allotted and unallotted area as under the first preliminary decree. Counsel on both sides have worked out the ratio to be followed by the above principle and it is stated that when the extent of property comes to only 2 acres 88 cents in the place of 3 acres 50 cents in the schedule, the allotted area covered under the preliminary decree would constitute 80.28% and the unallotted area of 69 cents would constitute 19.72%. In accordance with W.P.(C).No.10624 of 2008 - M 7 that ratio in the extent of the property now available ie., 2 acres 88 cents which of course is provisional the commissioner has to work out what is the area to be allotted to the parties involved in accordance with the preliminary decrees passed. Learned counsel on both sides submits that in accordance with the above ratio calculation the total extent of the land allotted to the plaintiffs and other defendants under the first preliminary decree would come to 2 acres 31.20 cents and the rest of the land, previously stated as 69 cents, the unallotted area, would come to 56.80 cents. With reference to the extent shown above allotment to the parties as per the decrees passed have to be worked out. 5. Ext.P10 shall stand modified in the manner indicated as above. Having regard to the fact that the suit was instituted in the year 1981, I direct the learned Munsiff to complete the final decree proceedings, as expeditiously as possible, and dispose it of after getting report and plan from advocate commissioner effecting division taking note of the observations and directions made above and with reference to allotment of shares in the decrees, and hearing both sides, at the earliest, at W.P.(C).No.10624 of 2008 - M 8 any rate, within a period of six months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-