IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 AS.No. 505 of 1997(E) --------------------- OS.27/1990 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/PLAINTIFF: ----------------- ANANDHAKRISHNAN, S/O.CHAMUNNI, MOOLAMKOTTIL, KIZHAKKENCHERI, ALATHUR TALUK, PALAKKAD. BY ADV. SRI.P.R.VENKETESH SRI.P.C.CHACKO(PARATHANAM) RESPONDENTS/DEFENDANTS: -------------------- 1. MADHAVI, W/O.CHAMUNNI, KULAVAPADATH, KIZHAKKAMCHERI,ALATUR TALUK. POSTAL ADDRESS: M.V.MADHAVY, W/O.LATE K.A. CHAMUNNI, KALAVAPPADAM, MULANCODE P.O., KIZHAKKENCHERRY, PALAKKAD 678 684. 2. RAJAN, S/O.MADHAVI, RESIDING AT -DO- POSTAL ADDRESS: ;C. RAJAN, S/O.LATE K.A. CHAMUNNI, C/O.KARTHIKA CLINIC, VADAKKENCHERRY P.O., PALAKKAD. 3. BALAKRISHNAN, S/O. -DO- RESIDING AT -DO- POSTAL ADDRESS: C.BALAKRISHNAN, S/O.LATE K.A.CHAMUNNI, MARIYAPADAM; HOUSE, MULANCODE P.O., KIZHAKKENCHERRY,(DIED) PALAKKAD 678 6894. 4. SHADEVAN, S/O. -DO- NADIGODE, VANDITHAVALAM, CHITTUR TALUK. POSTAL ADDRESS: C. SAHADEVAN, S/O.LATE K.A.CHAMUNNI, KALAVAPPADAM, MULANCODE P.O., KIZHAKKENCHERRY, PALAKKAD 678 684. 5. KERALADASAN, S/O. -DO- KALAVAPADATH, KIZHAKKENCHERRY, ALATUR TALUK. POSTAL ADDRESS: C. KERALADASAN, S/O. LATE K.A.CHAMUNNI, KALAVAPPADAM, -DO- -DO- 6. SETHUMADHAVAN, S/O. -DO- RESIDING AT -DO- POSTAL ADDRESS: C. SETHUMADHAVAN, S/O. LATE K.A.CHAMUNNI, KALAVAPPADAM, -DO- -DO- -2- 7. KRISHNANKUTTY, S/O. -DO- RESIDING AT -DO- -DO- POSTAL ADDRESS: C. SASIKUMAR (KRISHNAKKUTTY), S/O.LATE K.A. CHAMUNNI, KALAVAPPADAM, -DO- -DO- 8. PARVATHI, D/O. -DO- KANNIMANGALAM, ELAVAMPADAM, ALATUR TALUK. POSTAL ADDRESS: C. PARVATHI, W/O. SETHUMADHAVAN, KANIMANGALAM, ELAVAMPADAM P.O., KIZHAKKANCHERRY, PALAKKAD. 9. RUGMINI, D/O. -DO- KANNARA, PEECHI, TRICHUR DISTRICT, POSTAL ADDRESS: C. RUGMINI, W/O.PARAMESWARAN, MANGUZHI HOUSE, KANNARA P.O., PEECHI, TRICHUR. ADDL.10. SIROMANI, RESIDING AT -DO- MARIYAPPAN HOUSE, MULANCODE P.O. KIZHAKKANCHERRY, PALAKKAD. '' 11. SIHBU, RESIDING AT -DO- -DO- '' 12. SHEEBA, RESIDING AT -DO- -DO- ADDL. RESPONDENTS 10 TO 12 ARE IMPLEADED AS THE L.RS. OF THE DECEASED 3RD RESPONDENT AS PER ORDER DTD. 6/3/2007 ON I.A.NO.1321/2006. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R2 & R5 SRI.K.B.PRADEEP THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------- A.S.NO.505 OF 1997 -------------------------- DATED THIS THE 11TH DAY OF DECEMBER, 2009 JUDGMENT Plaintiff in O.S.No.27/990 on the file of the Sub Court, Palakkad is the appellant. The suit was filed for partition. The court below passed a preliminary decree directing partition of the plaint schedule properties into 10 equal shares and to allot one out of such shares to the plaintiff and consequential reliefs are also granted. The plaintiff claimed for partition and separation of his share over the plaint schedule property after adjusting 3.01 acres of land surrendered as excess land pursuant to the ceiling proceedings. The trial court declined the prayer of the plaintiff for consideration of 3.01 acres of excess land while making division and passed a decree for partition and separate possession of his share over the plaint schedule properties. Aggrieved by the findings declining adjustment over 3.01 acres, -2- A.S.No.505/97 this appeal is filed. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaint schedule properties originally belonged to late Chammuni, who is the father of the plaintiff and defendants 2 to 9. The lst defendant is the mother of the plaintiff and other defendants. The property sought to be partitioned is the property obtained by late Chamunni, as per Ext.A1 partition deed of the year 1971. Plaint schedule properties are the A schedule properties to Ext.A1 partition deed. Chamunni died intestate on 3/7/1988. 3. The contesting defendants did not dispute the partibility of the plaint schedule properties. They contended inter alia that there was no joint decision or arrangement for surrender of excess land out of the properties set apart to the share of the plaintiff, or to compensate the plaintiff such extent surrendered and that the entire extent of 3.01 acres of excess land was surrendered consequent on the order passed by the Taluk Land -3- A.S.No.505/97 Board. 4. It is not disputed that during the life time of father, ceiling proceedings were initiated against the father and the Taluk Land Board held that late Chamunni is liable to surrender 3.01 acres of land as excess land. The trial court rejected the contention of the plaintiff that there was an agreement between the sharers to compensate the area surrendered at the time of actual division of the father's share. The trial court rightly held that excepting the interested testimony of the plaintiff, there was no material placed before the court below to accept the said contention. It is a fact that a portion of the property obtained by the plaintiff under the partition deed was taken over by the Government in the ceiling proceedings. The order was passed by the Taluk Land Board directing surrender of 3.01 acres of land, since the properties belonged to the father. For the aforesaid reasons, the prayer of the plaintiff for pro-rata adjustment of 3.01 acres of land for division is declined. -4- A.S.No.505/97 5. The trial court further held that the plaint schedule properties belonged to the father and the parties to the suit are entitled to inherit the properties. There is no serious dispute regarding the quantum of shares. Therefore, a preliminary decree has been passed for division of the properties into 10 equal shares and to allot one of such share to the plaintiff. Admittedly, defendants 1 to 9, who are also the legal heirs of the deceased father, are also entitled to inherit and share the property equally. In the circumstances, I do not find any reason to interfere with the judgment and decree passed by the court below. The contentions raised by the appellant in the said circumstances cannot stand. In the result, the appeal fails and accordingly dismissed. There will be no order as to costs. HARUN-UL-RASHID, JUDGE. kcv. -5- A.S.No.505/97