IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 FAO.No. 151 of 2009() ------------------------- AS.82/2003 of SUB COURT,NEYYATTINKARA OS.1016/1999 of II ADDL.M.C.,NEYYATTINKARA .................................................................... APPELLANT/RESPONDENT/PLAINTIFF ----------------------------------------- KAMALAKSHY PILLAI SUBHADRAMMA, AGED 65 YEARS, PRASANTH, KARINGAL, KANDALA P.O. ALSO HAVING KAMALAVILASOM VEEDU, MARANALLOOR DESOM AND VILLAGE. BY ADV. MR.L.MOHANAN RESPONDENT(S): ------------------- PARAMESWARAN PILLAI, VIKRAMAN NAIR, KAMALAVILASOM VEEDU, KARINGAL, KANDALA P.O. MARANALLOOR DESOM, MARANALLOOR VILLAGE. ADV. SRI.K.B.PRADEEP FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------------------------ F.A.O. No. 151 OF 2009 ------------------------------------------ Dated this the 10th day of December, 2009 JUDGMENT This is an appeal preferred against the order of remand passed by the Subordinate Judge, Neyyattinkara in A.S.82/2003 and 91/2003. By virtue of the said order, the learned Sub Judge directed the matter to be gone into afresh and it is dissatisfied with the same, the plaintiff in the suit has come in appeal. I feel after hearing, learned counsel for sometime and on perusal of the documents produced by them, a decision can be taken and there is no much controversy in the case as attempted to be projected. Now at the outset, it has to be stated a suit is filed claiming almost all reliefs which one can claim with respect to different types of properties in the form of a declaration partition, putting up a boundary etc. 2. The brief facts are 'A' schedule property described in F.A.O. No. 151 OF 2009 2 the plaint having an extent of 79 cents with the building originally belonged to one Aiyyappan Pillai who is the father of the plaintiff and first defendant. The second defendant is the son of the first defendant. There was a settlement executed by the said Aiyyappan Pillai on 28.06.1967. Now the reliefs sought for by the plaintiff in the suit is that the 'E' schedule property described in the plaint is settled in favour of the plaintiff and 'D' schedule is settled in favour of the defendant and therefore the plaintiff wants declaratory right of his property over 'E' schedule and to put a boundary between 'C' schedule and 'E' schedule property. 3. The other property as per settlement deed, is a property having an extent of 12 cent with a building described as 'B' schedule which is kept in common between plaintiff and the first defendant and therefore the plaintiff claims half right of that property with the movables in that property which is described to the schedule of the plaint. F.A.O. No. 151 OF 2009 3 Now the trial Court granted a decree declaring the right of the plaintiff over 'E' schedule item No.2. The plaint 'B' schedule property and the building therein are ordered to be partitioned into two equal shares and the plaintiff is allotted one half share. The plaintiff is allowed to put up boundary through 'SF' line. Equity is left open to be decided at the stage of passing of the final decree. Against that decision, the defendant and plaintiff moved the Appellate Court. 4. The Appellate Court in appeal set aside the decree and remanded the matter to the Court below for fresh disposal. The Appellate Court was of the view that the Lower Court erred in trying the issues one to three together. In some other portion of the judgment with respect to the movables, it held that the movables also can be divided. I have already stated the plaintiff is having half share in the building, property and movables. So actually by virtue of this finding the Appellate Court has ordered the division. So F.A.O. No. 151 OF 2009 4 the sum and substance of all the finding given by both the Courts below are (1) the plaintiff is entitled to a declaratory right over the property described as 'E' schedule item No.2. (2) The plaint 'B' schedule property is to be divided into equal halves along with movables and one share is to be allotted to the plaintiff. (3) The Court also permitted that the separating boundary can be fixed on the line 'SF' marked by the commissioner. After hearing, learned counsel for both the sides, I do not find any dispute with respect to the right of item No.2 in 'E' schedule. The commissioner also demarcated the separating line. On the commissioner's plan and report in this case, 23 cents of property claimed as 'E' schedule item No.2 property is marked by the commissioner as 'A B C D E F S R' and the dividing line is marked as 'SF' line. So even if issues number 1 to 3 are jointly tried, really there is no dispute with respect to that portion of the finding rendered by the Court below. F.A.O. No. 151 OF 2009 5 5. Now is regarding the 'B' schedule property which was kept in common as per the settlement deed. A commissioner who had inspected the property has found 17 item of movables in the property as described therein. Those movables are to be divided and just because the name of the person is shown in the movables just on the eve of the visit of the commissioner that too by a person who is in occupation of the building, it will not confer any specific right on him. Therefore, I agree with the Appellate Court and I confirm the finding with respect to the availability of the 17 items of movables for division. Now the next question is with respect to the 12 cents of property and it is marked as (P Q R S T U V W) in the commissioners plan. Since only a very small portion with the building is situated adjacent to the 'E' schedule item number 2 of the property and when the building wherein the defendant is situated therein inorder to avoid future complications between the parties, it is desirable that the building with the F.A.O. No. 151 OF 2009 6 necessary appurtenant land situated in this property is to be allotted to the share of the second defendant and the property shown as the souther segment of this 'P, Q, R, S, T, U, and W' be set apart to the share of the plaintiff. In the process of making such a division, it is certain that there will be some practical difficulty to divide the property into equal halves. Inorder to maintain the structure wherein the second defendant is residing now and as the said house is to be given to him, the only methodology is to divide it in such a way and if any excess property is given to the defendant for his convenient enjoyment of the building, the defendant has to pay that amount towards equalization of the shares to the plaintiff. Similarly, the building situated in the property also has to be valued and one half of it has to be given to the plaintiff. So also the movables are also to be valued and one half of the same be given to the plaintiff. 6. I feel the matter has to go back not on the basis of F.A.O. No. 151 OF 2009 7 the directions given by the appellate judge but for different purpose so that once for all there can be a resolution of the dispute between the parties. Therefore the order or remand passed by the appellate court is set aside but the matter is remitted back to the trial court for the following. 7. The trial court can appoint the very same Commissioner and attempt to divide the 'B' schedule property as mentioned earlier in the judgment along with the valuation of the property, valuation of the building and valuation of the movables and permit the parties to raise objections, if they want, and thereafter instead of passing a preliminary decree, if parties agree, can pass an final decree for which purpose stamp value has to be given. So far as the declaratory relief with respect to 'E' schedule item No.2 is concerned it is sustained. Similarly, the finding on fixation of boundary along the F.A.O. No. 151 OF 2009 8 'SF' line also is confirmed. In case a final decree is to be passed the court shall see that the pathway is provided to the property without sacrificing the extent very much. If the parties have any better mode of suggestion, certainly the Commissioner can work out in the same fashion and submit it to the court and it can be considered. Any observation made by me in this judgment will not debar the trial court from considering the same. Parties are directed to appear before the Trial court on 14.1.2010. M.N.KRISHNAN, JUDGE /SS/