IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 RFA.No. 456 of 2006() --------------------- AGAINST THE ORDER IN IA 3557/2002 IN 5610/01 IN OS.259/1978 of PRL.SUB COURT,THRISSUR .................... APPELLANT/7TH RESPONDENT/7TH DEFENDANT ------------------------------------------------------- P.C.JOHNY, S/O.PUTHUPPALLIPARAMBIL- CHACKO, PROPRIETOR, P.C.JOSEPH & BROTHERS, RICE BAZAAR, THRISSUR. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENTS: PLAINTIFF & DEFENDANTS 1 TO 6 AND 8 TO 13 ------------------------------------------------------ 1. JOHNY, S/O.CHIRIYANKANDATH LATE ANTONY, CHEMBUKAVU, THRISSUR TOWN, THRISSUR TALUK. 2. THANDAMMA (DIED). 3. ADV.INEES CHIRIYANKANDATH, KACHERIPADI, CHITTOOR ROAD, ERNAKULAM. 4. THRESSIA, (DIED). 5. ANNU, W/O.P.A.VARUNNI, PALIYEKKARA, CHIYYARAM VILLAGE. 6. GRACY, W/O.AKKARAPPATTY THOMAS, WEST SOORYAGRAMAM, THRISSUR TOWN, THRISSUR TALUK. 7. ALICE, W/O.DEVASSY JOSE, LOORDHU CHURCH, EAST FORT, THRISSUR TALUK. 8. L.V.JACOB, S/O.CHAKKALMATTATH - LAPPAKKARAN VAREED, CHANDAPPURA, IRINJALAKUDA TOWN MUKUNDAPURAM. (REMOVED) RFA 456/06 -2- 9. BABU L.J., S/O.LATE THRESSIA, CHANDAPPURA, IRINJALAKUDA TOWN, MUKUNDAPURAM. 10. JOSEPH L.J., S/O.LATE THRESSIAL, CHANDPURA, IRINJALAKUDA TOWN, MUKUNDAPURAM. 11. MAGY, D/O.THRESSIA, W/O.PARAKKAL JOSEPH, NEAR HIGH SCHOOL, KANJOOR (VIA) KALADY. 12. JOLLY, D/O.THRESSIA, W/O.PROF.M.R.THOMAS MOOKKEN HOUSE, NEAR CHURCH, OLLUR. (REMOVED) 13. TONY L.J., ADVOCATE, S/O.L.V.JACOB, RAMAKRISHNA IYER ROAD, NEAR IRINJALAKUDA COURT, IRINJALAKUDA. (R2,4,5 & 10 DELETED FROM PARTY ARRAY AS PER ORDER DT.21-11-07 IN I.A.4033/07 AT THE RISK OF THE PETITIONER. R10 TO 13 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED R8 AND R8 & R12 ARE REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DT.23-1-08 IN IA 386/08) R3 BY ADV. SMT.E.V.MOLY R1 BY ADV. SRI.P.JACOB VARGHESE SRI.V.MANOJ KUMAR SRI.VIVEK VARGHESE P.J. R7 BY ADV. SRI.R.PARTHASARATHY THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA NO.3749/2006 IN RFA 456/2006. DISMISSED. 28-1-2008. SD/- P.R.RAMAN, JUDGE. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// P.R.RAMAN & V.K.MOHANAN, JJ. -------------------------------------- R.F.A.NO.456 OF 2006 --------------------------------------- Dated 28th January, 2008 JUDGMENT Raman, J. This appeal arises out of a suit for partition. Preliminary decree was passed against which A.F.A. No.11/2002 was filed before this Court and by judgment dated 16-2-2002, this court disposed of the appeal holding that the property described in the plaint schedule property be divided into 168 equal shares and allot 95 such shares in favour of the 7th defendant. 57 such shares in favour of the plaintiff and 16 shares in favour of the 6th defendant. The matter of disposal of the property or division of the property by metes and bounds shall be determined by the court below. It was also directed that the plaintiff will be liable to proportionately reimburse the amount to the 7th defendant as shown in Ext.B2. The mesne profits as ordered by the learned Single Judge shall be paid by the 7th defendant to the plaintiff and the 6th defendant proportionately. The parties were given opportunity to move the trial court for passing the final decree. Pursuant thereto the plaintiff moved an application for passing RFA 456/2006 2 final decree by filing I.A.3557/2002 considering the interim report passed by the Commissioner on 17-2-2002 that actual division of the property by metes and bounds is not possible and in the further report dated 17-2-2003 in which it was stated that the property is situated in a commercially potential area near Sakthan Thampuram market in Thrissur town and the approximate market value of the plaint schedule property with building is not less than Rs.16 lakhs. The property with house is ordered to be sold in public auction to the highest bidder and ordered accordingly, against which the present appeal is filed by the 7th defendant. 2. The appellant/7th defendant contended that he is in absolute possession and enjoyment of the property ever since from the date on which he purchased the same and also holding a major share after the final order passed by this Court. As such he ought to have been given preferential claim for purchasing the property rather than ordering the sale by public auction. In the course of the argument, however, it is further contended that under section 3 of the RFA 456/2006 3 Partition Act, a share holder alone or together with other share holders to the extent of one moiety can invoke the rights for public auction. We are not impressed with this argument. The appellant has not raised any such objection before the court below regarding maintainability of the application under section 2 nor has not raised any specific ground in the appeal memorandum, but raised only in a subsequent amendment. Why the appellant has not raised such ground is not at all a matter to be considered now. At any rate, he has also raised the claim simultaneously under section 3 of the Partition Act. Only when an application is made under section 2 of the Act and pending consideration, the other share holder gets the right to move under section 3 for purchase of the shares of the other share holders. In such circumstances, the court having directed the sale of the property in an application filed by the plaintiff under section 2, we think that it is proper to consider the application made by the appellant under section 3. True, the appellant did not move the court below by filing such application for the reason that the counsel for the appellant was seriously laid up and RFA 456/2006 4 got no information regarding the proceedings that has taken place before the court below. Whatever that be, before the property put for public auction, when a majority of the share holders comes forward requesting the court to allow to purchase the shares at the market price, in equity, we think such request be considered on merits. The respondent/plaintiff has produced additional documents showing the market price of the property in the year 2000 as Rs.2½ lakhs per cent. However, being an appeal, we do not think it proper to fix the market price by this court before affording an opportunity to the parties. 3. In the circumstances, the order impugned is set aside. But the application filed by the plaintiff will be kept pending. Appellant herein is given opportunity to file application under section 3 of the Act. The court below may fix the market price of the property after giving opportunity to both sides and value the shares of the plaintiff and the 6th defendant and such amount shall be deposited by the appellant herein within a time limit fixed by the court, failing which the court will put the property to public auction. The RFA 456/2006 5 appeal is allowed as above. 4. The parties shall appear before the court below on 15-2-2008 in case the case is not otherwise posted on an earlier date by the court below. Issue urgent copies to the parties. P.R.RAMAN, JUDGE. V.K.MOHANAN, JUDGE. Kvm/- RFA 456/2006 6 P.R.RAMAN & V.K.MOHANAN, JJ. RFA No.456 OF 2006 Judgment Dated:28-1-2008.