IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 AS.No. 627 of 1998() -------------------- AGAINST THE ORDER DATED 30/08/1997 IN IA 2480/93 IN OS.156/1992 of ADL.SUB COURT, THALASSERY .................... APPELLANT/PETITIONER/PLAINTIFF: --------------------------------------------------- CHINNANKANDI PUTHENPURAYIL REETHA, W/O. SURESH PUZHATHI AMSOM, KAKKAD DESOM KANNUR - 5. BY ADV. SHRI. S.A.SAJU SHRI.K.C.KIRAN RESPONDENTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------ 1. CHINNANKANDI PUTHENPURAYIL SURESH, S/O. LATE GOPALAN, ELAYAVOOR AMSOM, CHOWA DESOM, RESIDING AT HAJI ROAD VILAKODE P.O., VIA IRITTY, KANNUR DISTRICT. 2. CHINNANKANDI PUTHENPURAYIL SAJEEVAN, S/O. -DO- ELAYAVOOR AMSOM, CHOWA , KANNUR -6. 3.CHINNANKANDI PUTHENPURAYIL GEETHA JAGJEEV, D/O. -DO- , 26 KUNJIGIRE FLATS, NEAR RUXMANIBENS HOSPITAL, MANI NAGAR, KHOKARA, AHAMADBAD, RESIDING AT ELAYAVOOR AMSOM, CHOWA DESOM, KANNUR - 6. 4. CHINNANKANDI PUTHENPURAYIL RAJEEVAN, S/O. -DO- ELAYAVOOR AMSOM, CHOWA DESOM, KANNUR -6. ADV. SRI.CIBI THOMAS FOR R1 TO 4 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/8/2011, THE COURT ON 18/10/2011 DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- A.S. No.627 of 1998 ----------------------------------------------- Dated 18th October, 2011. J U D G M E N T Joseph Francis, J. This appeal is filed by the petitioner/plaintiff in I.A.2480/93 in O.S.156/92 on the file of the Sub Court, Thalassery. Respondents 1 to 4 herein are the respondents 1 to 4 in that I.A. which was filed by the petitioner/plaintiff for passing a final decree in accordance with the preliminary decree for partition. 2. O.S.156/92 on the file of the Sub Court, Thalassery is a suit for partition. In that suit, a preliminary decree for partition was passed on 7.1.1993 with consent of all the parties as follows :- 1. that the plaintiff be allowed to get partition and separate possession of her 1/5th share. Defendants are entitled to get 1/5th share each. 2. that the extent of the properties available for partition be left open to be decided in final decree? 3. that issue No.3 be relegated to final decree? 4. that the 1st defendant do pay the past and future profits to the plaintiff, and the quantum be left open to be decided in final decree. 5. that any of the parties be set at liberty to apply for A.S.627/98 2 passing final decree. 6. that the cost of suit do borne out from the estate. 3. I.A.2480/93 was filed by the plaintiff to pass a final decree for partition by measuring out the properties with the help of an Advocate Commissioner. An Advocate Commissioner was appointed to partition the plaint schedule properties with the assistance of a Taluk Surveyor. The Advocate Commissioner partitioned the plaint schedule properties with the help of a Taluk Surveyor and filed Ext.C1 report, Ext.C2 account, Ext.C3 share list and Exts.C4 to C6 plans. In the final decree proceedings, PW1, RW1 and CW1 were examined and Exts.A1 to A8, Exts.B1 to B5 and Exts.C1 to C6 were marked. The learned Sub Judge, on considering the matter passed the final decree for partition, accepting Exts.C1 to C6 as follows : “the plaintiff is allotted A plot in Ext.C4 plan. Plot I and plot N in Ext.C5 plan II and allotted Q, Q1, Q2, Q3, in Exts.C6 Plan III being the share No.1 of the plaintiff as 1/5. 2. The defendants are allotted plot B, C and F plot A.S.627/98 3 and plot G, H, J, K, L in item No.1 in Ext.C4 plan and allotted plots P1 to P12 in Ext.C5 plan No.II and allotted plots R, R1, R2 and R3 in Ext.C6 plan No.III. 3. For the equalization of the share value the defendants have to pay Rs.16,634.54 to the plaintiff. The cost incurred by the parties to the final decree proceedings shall be borne by them in proportion to their shares. Exts.C3, the share list and C4, C5 and C6 the plan No.I, II and III respectively will form part of the final decree. The parties will produce necessary amount for purchasing N.J. Stamps for drafting the final decree by 1.10.1997.” Against that final judgment and final decree, the petitioner/plaintiff filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the respondents. 5. Learned counsel for the appellant submitted that in paragraph 5 of the final judgment, it is observed by the A.S.627/98 4 learned Sub Judge that the main grievance of the petitioner was that the total extent of property in item No.1 belonging to the deceased Gopalan was not measured and that the contention of the petitioner appears to be genuine and admittedly, the Commissioner with the assistance of Taluk Surveyor has measured only 7 ½ acres as far as item no.1 is concerned. Learned counsel for the appellant submitted that after making such observations, the court below went wrong in accepting the Commission report without affording reasons. It is also submitted that plaint item no.1 property is having an extent of 20 acres and as per different documents, 4 acres 67 ½ cents were sold out to third parties and the remaining portion is available for partition. Learned counsel for the appellant further submitted that in item no.3 property, the Commissioner allotted the appellant the plots marked as Q, Q1, Q2 and Q3 but no way of access is provided. Learned counsel for the respondents supported the final judgment and final decree. 6. In Ext.C1 commission report, Commissioner has stated that item No.3 is a paddy land and the total extent is 36 5/8 A.S.627/98 5 cents. 15/8 cents is allotted as way to the plots which have no other entrance. In item no.3, the plaintiff's 1/5 share is allotted and marked as plots Q, Q1, Q2 and Q3 and the total extent is 7 cents. The remaining R, R1, R2 and R3 is allotted to as a group to defendants and the extent is 28 cents. In Ext.C6 plan with regard to item no.3 property, the pathway having an extent of 15/8 cents is shown which is abutting Q2 and Q3 plots allotted to the share of the appellant/petitioner. Therefore, the contention of the appellant that no pathway is provided to the plots allotted to the appellant in item no.3 property is not correct. 7. In Ext.C1 commission report, the Commissioner has reported that as per the preliminary decree the total extent of plaint schedule item no.1 property is 20 acres and on the first day of inspection she could see only about 7 acres and that on subsequent dates, that property was measured out with the assistance of the Taluk Surveyor. At the time of inspections, the defendants showed the Commissioner some documents regarding the assignments made in respect of item no.1 property. As per 1968 documents, 2 acres were sold by the A.S.627/98 6 father of the plaintiff to one Mohammed Rawther and another on 23.2.1968 from that 20 acres. The father of the plaintiff sold 2 acres out of 20 acres to one Varghese as per 1968 document dated 25.2.1969. As per sale deed no.1231/88 dated 3.5.1988, the children of Gopalan sold 10 cents from item no.1 property to one Raveendran. The children of Gopalan sold 20 cents from item no.1 property to one Vijayan as per sale deed no.1232/88 dated 3.5.1988. 7 ½ cents from item no.1 property was sold by the plaintiff and defendants to one Hameed Muhammed as per sale deed no.1233/88 dated 3.5.1988. 10 cents from item no.1 property was sold to one Padmini Amma by the plaintiff and defendants as per sale deed no.1238/88. Some of these documents are produced and marked as Exts.B1 to B5. The Commissioner reports that 3 cents from item no.1 property was given to Panchayat for Balavadi and that plot is shown as plot E. 8. When the Commissioner was examined as CW1, she stated that the entire extent of 20 acres in item no.1 property is not available for partition and the available extent is A.S.627/98 7 only 7 ½ acres and the remaining extent is in the possession of third parties. Learned counsel for the respondents submitted that after excluding 7 ½ acres and the portions sold by Gopalan and his children, the remaining portion of plaint schedule item no.1 property is in the possession of strangers even when deceased Gopalan was alive. This fact is not disputed by the appellant at the time of argument. 9. CW1 stated that on the northern side of the road in item no.1 property as per Ext.C4 plan is possessed and enjoyed by strangers and she could not measure out that portion since it was objected by strangers. Since the learned Sub Judge has passed the final decree on accepting the Commission report and plan, we are of the view that in the facts and circumstances of the case, that is the only practical solution with regard to plaint schedule item no.1 property. If so advised, the parties can seek appropriate remedies with regard to that portion of properties in item no.1 property in the possession of strangers in separate final decree proceedings in the same suit. A.S.627/98 8 Accordingly, this appeal is dismissed as it is without any merits. The final judgment and decree in I.A.2480/93 in O.S.156/92 on the file of Sub Court, Thalassery is confirmed subject to the observations as above. The parties are directed to suffer their respective costs in this appeal. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.