IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 RSA.No. 308 of 2011() --------------------- AS.80/2003 of ADDL. DISTRICT COURT, OTTAPALAM OS.312/1998 of MUNI-MAGI.COURT,PATTAMBI .................... APPELLANT/1ST RESPONDENT/PLAINTIFF --------------------------------------------------------------- MOIDEEN,S/O.ELEDATH USUF,RESIDING AT PATTAMBI,PALLIPRAM AMSOM,KARAKKAD DESOM, OTTAPALAM TALUK,PALAKKAD-03. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): APPELLANT/RESPONDENTS 2 & 3/DEFENDANTS 4,2 & 3 --------------------------------------------------------------------------------------------------------- 1. SUHRA,D/O.ELEDATH USUF. PALLIPARAM AMSOM,KARAKKAD DESOM,OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN - 679 303. 2. ALI,S/O.ELEDATH USUF. PALLIPARAM AMSOM,KARAKKAD DESOM,OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN - 679 303. 3. AYIDRU,S/O.ELEDATH USUF. PALLIPARAM AMSOM,KARAKKAD DESOM,OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN - 679 303. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 308 OF 2011 =========================== Dated this the 7th day of June,2011 JUDGMENT Plaintiff in O.S.312/1998 on the file of Munsiff Court, Pattambi is the appellant. Defendants are the respondents. Appellant instituted the suit seeking a decree for partition and separation of his 1/3 share, on dividing the plaint schedule property into three equal shares. Learned Munsiff granted a preliminary decree holding that plaint schedule property is available for partition and it is to be divided into three equal shares and appellant is entitled to one such share. Fourth defendant challenged the judgment before Additional District Court, Ottapalam in A.S.80/2003. Learned Additional District Judge on reappreciation of the evidence allowed the appeal and set aside the preliminary decree. R.S.A.308/2011 2 It is challenged in the second appeal. 2. Learned counsel appearing for the appellant was heard. 3. The argument of the learned counsel is that the property sought to be divided is the property left with the plaintiff and defendants 2 and 3, after the common properties were divided under Ext.B6 and the first appellate court was not justified in interfering with the preliminary decree passed by the learned Munsiff. Learned counsel argued that admittedly the entire property originally belonged to Pulakkal Kunjahammed, who under Ext.B1 assignment deed transferred it in favour of Pathumma , Nabeesa and first defendant and later Nabeesa released her share in favour of the first defendant and thus first defendant had 2/3 shares and Pathumma 1/3 share and the share due to the first defendant was transferred under Ext.B4 and the share due to Pathumma was transferred under Ext.A1, in favour of the plaintiff and defendants 2 and 3 and later under Ext.B5 though 4 cents were R.S.A.308/2011 3 transferred in favour of the first defendant jointly by them and the balance properties were divided under Ext.B6, the plaint schedule property was left as common as it was not divided and the first defendant though transferred more extent than what is covered under Ext.B5 in favour of the fourth defendant, under Ext.B7, as first defendant cannot assign more extent than what is covered under Ext.B5, and the excess extent is available for partition. Learned counsel argued that when the Commissioner has identified the property and demarcated the plaint schedule property, even if the first appellate court is not satisfied with the identification and the demarcation, first appellate court was not justified in ignoring the Commissioner's report and plan and as provided under Rule 10 of Order XXVI of Code of Civil Procedure, the report and plan should have been referred back to the Commissioner for proper identification and the dismissal of the suit is unsustainable. Learned counsel argued that when R.S.A.308/2011 4 under Ext.B6 only a part of the property jointly belonging to plaintiff, defendants 2 and 3 were divided and the property left at the time of partition under Ext.B6, is not only the property covered under Ext.B5 but more extent and that extent is available for partition and hence appellant is entitled to a share as found by the trial court. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal, on the facts of the case. 5. Ext.B6 was admittedly executed by plaintiff and defendants 2 and 3, who are the joint owners of the property. The property divided under Ext.B6, as is clear from Ext.B6, is the property which was jointly in the possession of the executants therein, leaving the property which was alienated earlier. True under Ext.B1 Kunjahammed had obtained the property which under Ext.B4 and A1 assignment deeds vests with the plaintiff and defendants 2 and 3 and the property divided under R.S.A.308/2011 5 Ext.B6 is the property excluding the property alienated. Even if it is taken that the property covered under Ext.B5 and the property covered under Ext.B6, will not cover the entire property obtained under Ext.B4 and A1, appellant is entitled to claim share in the remaining property only if it was left common at the time of execution of Ext.B6. 6. Ext.B6 ( a copy of which is made available by the learned counsel appearing for the appellant) makes it absolutely clear that the property which was in the joint possession of the executants were measured, after excluding the property alienated earlier and originally belonging to them jointly. The separate shares were allotted to the plaintiff and defendants 2 and 3. There is no case for the appellant, either in the plaint or at the time of evidence, that when Ext.B6 partition was entered into, the properties were not divided or the common properties in the possession were not measured and fixed. There was also no case that when the property covered under Ext.B5 was excluded any R.S.A.308/2011 6 mistake occurred whereunder more extent than what is covered under Ext.B5 was excluded. Therefore it is not open to the appellant, in the light of the recitals in Ext.B6, that after the division under Ext.B6 any property was left common with them jointly, out of the properties obtained under Ext.A1 and B4 as now claimed. There are specific recitals in Ext.B6 that the entire joint family properties in the possession were measured and divided, making it unambiguously clear that there did not remain any common property later on. On that sole ground the claim of the appellant for division of the plaint schedule property is to be rejected. Moreover, if the claim of the appellant is that the property now identified by the Commissioner is available for partition, the plaint should have been amended in accordance with the identification made in Ext.C2 plan. The description of the plaint schedule property is not as identified by the Commissioner in Ext.C2 plan. Added to this, as is clear from the plan and the R.S.A.308/2011 7 report submitted by the Commissioner, the property covered under Ext.B5 was not properly identified. In such circumstances, I do not find any substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006