IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 OP(C).NO. 117 OF 2010(O) ------------------------------------ AGAINST THE ORDER DATED 11/02/2010 IN IA.3876/2010 IN OS.731/1996 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM .................... PETITIONER: --------------------- P.N.PRASANNAN, S/O.NARAYANAN, PUTHENPURACKAL VEEDU, PARAVOOR MURI, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.K.K.SATHEESH RESPONDENT(S): ------------------------- 1. VISWAMBHARAN, S/O.NARAYANAN, PUTHENPURACKAL, THRIVENI, MOOTHEDATHUKAVU, T.V.PURAM, VAIKOM. 2. PARAMESWARAN, S/O.NARAYANAN, PUTHENPURACKAL,UDAYAMPEROOR DESOM, MANAKUNNAM VILLAGE. 3. SISUPALAN, S/O.NARAYANAN PUTHENPURACKAL, PUTHENPURACKAL VEEDU, PARAVOOR MURI, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. 4. RAVEENDARAN, S/O.NARAYANAN, PUTHENPURACKAL VEEDU, PARAVOOR MURI, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. (DIED). 5. GANGADHARAN, S/O.NARAYANAN, SIVAKRIPA HOUSE, KINASSERRY P.O., MUTHUKAD- THANNEER PATHAL,PALAKKAD-678 707 (DIED). 6. VIJAYAN, S/O.NARAYANAN, PUTHENPURACKAL VEEDU, PARAVOOR MURI, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. 7. VARADARAJAN, S/O.NARAYANAN, -DO- -DO-. ADV. SRI.S.SUDHISH KUMAR FOR R6 & 7 SRI.VIVEK VARGHESE P.J. FOR R1 TO 3 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.117 OF 2010 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED NO.1761 OF 1973 OF SRO THRIPPUNITHURA. EXHIBIT P2 TRUE COPY OF THE PLAINT FILED BY RESPONDENTS 1 TO 3 HEREIN. EXHIBIT P3 TRUE COPY OF THE PRELIMINARY DECREE PASSED BY THE FIRST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM IN O.S. NO.731 OF 1006. EXHIBIT P4 TRUE COPY OF THE FINAL JUDGMENT DATED 15.3.2005 PASSED BY THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM IN I.A. NO.6968 OF 2011 IN O.S. NO.731 OF 1996. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 30.3.2007 PASSED BY THE FIRST ADDITIONAL SUB JUDGE, ERNAKULAM IN A.S. NO.7 OF 2007. EXHIBIT P6 TRUE COPY OF THE I.A. NO.3876 OF 2010 IN O.S. NO.731 OF 1006. EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED 17.6.2009. EXHIBIT P8 TRUE COPY OF THE INTERIM REPORT ALONG WITH THE TWO PLANS PREPARED BY THE ADVOCATE COMMISSIONER DATED 27.1.2010. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 11.2.2010 PASSED BY THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM IN I.A. NO.3876 OF 2010 IN O.S. NO.731 OF 1996. EXHIBIT P10 TRUE COPY OF THE FINAL REPORT AND PLAN PREPARED BY THE ADVOCATE COMMISSIONER DATED 21.6.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.117 of 2010 ==================================== Dated this the 19th day of July, 2011 J U D G M E N T Exhibit P9, order passed by learned Principal Munsiff, Ernakulam on I.A. No.3876 of 2010 in O.S. No. 731 of 1996 is under challenge. By that order learned Munsiff has allowed respondents 1 to 3-plaintiffs to amend the plaint schedule as well as preliminary decree schedule pursuant to Ext.P6, application (I.A. No.3876 of 2010). Suit is for partition of property as per settlement deed No.1761 of 1973. As per that partition deed, executants Nos.1 to 8 who include the parties hereto are allotted 3.5 cents forming part of a total of 41.5 cents and the structures situated thereon. The remaining 38 cents (i.e., excluding the 3.5 cents) and the house situated thereon was allotted to party Nos.2 to 8 who also takes in the parties to this litigation. Based on the settlement between parties a preliminary decree for partition was passed. Later an Advocate Commissioner inspected the property and submitted interim report (Ext.P8) and a plan where the 3.5 cents was identified and shown as situated towards the north- western corner of the 41.5 cents. In the meantime respondents 1 O.P(C) No.117 of 2010 -: 2 :- to 3 filed I.A. No.3876 of 2010 for amendment of the plaint schedule and preliminary decree schedule. It is submitted that the Advocate Commissioner thereafter has submitted Ext.P10, report and plan where the disputed 3.5 cents is shown as situated towards the south-western corner of the total extent of 41.5 cents (as against its location on the north-western corner as per Ext.P8, interim report and plan). The order allowing amendment to make it appear that the 3.5 cents is situated towards south- western corner of total extent of 41.5 cents is under challenge. Learned counsel for petitioner contends that the 3.5 cents was not part of the plaint schedule or the preliminary decree schedule and that what is done by the amendment is to incorporate an item of property which is not the subject matter of the suit and preliminary decree. It is also contended that petitioner is in possession of 3.5 cents and the structures thereon. 2. Learned Senior Advocate contended that the 3.5 cents also was part of the relief prayed for in the suit for partition as could be seen from the relief portion where it is requested that share belonging to respondents 1 to 3 as per settlement deed No.1761 of 1973 may be partitioned and separate possession be given to them. It is pointed out from the preliminary decree that it takes in the 3.5 cents as well as remaining 38 cents. 3. I find from the preliminary decree that it refers to the O.P(C) No.117 of 2010 -: 3 :- 3.5 cents as well as the remaining 38 cents. But the controversy is regarding the exact location of the 3.5 cents. Unfortunately the description in the settlement deed does not say in which portion of the 41.5 cents the said 3.5 cents is situate, except that there is mention about certain structures also situate in the said 3.5 cents while the house is situated in the remaining 38 cents. Probably therefore, identification of the 3.5 cents has to depend on the existence of structures mentioned in the settlement deed. But it appears that it is without recording evidence regarding the dispute that the application was allowed. 4. Learned Senior Advocate contended that change of position of the 3.5 cents will not in any way affect right of parties since the said 3.5 cents is also the part of property to be partitioned as per the preliminary decree and parties to the suit are entitled to get a share as directed in the settlement deed in the 3.5 cents and the remaining 38 cents as well. That is a matter which parties could think about in arriving at a settlement if they are so advised. The matter was sent to the mediation. But for some reason or the other, no settlement could be arrived at. 5. Since there is serious dispute regarding the place where the 3.5 cents situate and the interim and final reports submitted by the Advocate Commissioner give contradictory locations I consider that before the amendment is allowed it is O.P(C) No.117 of 2010 -: 4 :- necessary that evidence is recorded on Ext.P6, application. Resultantly, this Original Petition is allowed. Exhibit P9, order is set aside. I.A. No.3876 of 2010 is remitted to the learned Munsiff for fresh decision after giving both sides opportunity to adduce evidence on that application as to the identity and location of the 3.5 cents and based on the evidence that may be let in by the parties, learned Munsiff shall pass appropriate orders on the application. If ultimately petitioner is found to be in possession of the said 3.5 cents and structures, that property is also to be partitioned and any equitable relief is to be given to the petitioner in respect of the said 3.5 cents, it is open to the learned Munsiff to issue appropriate direction in that regard and make modification in the allotment of plots regarding the rest of the property without violating the preliminary decree. THOMAS P. JOSEPH, JUDGE. vsv