IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 RSA.No. 365 of 2010() --------------------- AS.350/2003 of SUB COURT,NEYYATTINKARA OS.385/1982 of PRL.MUNSIFF'S COURT,NEYYATTINKARA .................... APPELLANTS/APPELLANTS:DEFENDANTS 1 & 2: ------------------------------------------------------------------------- 1. R.KRISHNA PILLAI, AGED 71 YEARS, MELEVILAKATHU VEEDU, KEEZHKOLLA DESOM, CHENKAL VILLAGE, NEYYATTINKARA. 2. P.SREEMATHY AMMA, AGED 81 YEARS, MELEVILAKATHU VEEDU, KEEZHKOLLA DESOM, CHENKAL VILLAGE, NEYYATTINKARA. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): RESPONDENTS 1 TO 5 & 7 TO 12/PLAINTIFFS & DEFENDANTS 4 TO 6 & 8 TO 14: --------------------------------------------------------------------------- 1. J.PONNAMMA PILLAI, KOTTARATHUVILA VEEDU, KEEZHKOLLA DESOM, CHENKAL VILLAGE, NEYYATTINKARA. 2. P.SYAMALA DEVI, AGED 67 YEARS, KOTTARATHUVILA VEEDU, KEEZHKOLLA DESOM, CHENKAL VILLAGE, NEYYATTINKARA. 3. K.DHAMODARAN NAIR, AGED 69 YEARS, KOTTARATHUVILA VEEDU, KEEZHKOLLA DESOM, CHENKAL VILLAGE, NEYYATTINKARA. 4. BALAKRISHNAN NAIR, AGED 70 YEARS, KOTTARATHUVILA VEEDU, KEEZHKOLLA DESOM, CHENKAL VILLAGE, NEYYATTINKARA. Kss ..2/- ...2.... RS.A.NO.365/2010 5. K.VASUDEVAN PILLAI, AGED 77 YEARS, VATTAVILA VEEDU, VENPAKAL DESOM, ATHIYANNOOR VILLAGE. 6. J.AMBUJAKSHY AMMA, W/O.LATE NARAYANA PILLAI, AGED 62 YEARS, KOTTARATHIL VEEDU, CHENKAL VILLAGE, NEYYATTINKARA TALUK. 7. V.SOMASEKHARAN, S/O.LATE NARAYANA PILLAI, AGED 42 YEARS, KOTTARATHIL VEEDU, CHENKAL VILLAGE, NEYYATTINKARA TALUK. 8. A.REMAKUMARI, D/O.AMBUJAKSHY AMMA, AGED 39 YEARS, KOTTARATHIL VEEDU, CHENKAL VILLAGE, NEYYATTINKARA TALUK. 9. N.SURESH KUMAR, S/O.LATE NARAYANA PILLAI, AGED 37 YEARS, KOTTARATHIL VEEDU, CHENKAL VILLAGE, NEYYATTINKARA TALUK. 10. A. SINDHU KUMARI, D/O.AMBUJAKSHY AMMA, AGED 33 YEARS, KOTTARATHIL VEEDU, CHENKAL VILLAGE, NEYYATTINKARA TALUK. 11. N.SANTHOSH KUMAR, S/O.LATE NARAYANA PILLAI, AGED 30 YEARS, KOTTARATHIL VEEDU, CHENKAL VILLAGE, NEYYATTINKARA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------- R.S.A No.365 of 2010 -------------------------- Dated this the 2nd June, 2010 J U D G M E N T In the suit for partition, a preliminary decree was passed, which reads as follows: "Issue Nos.4 and 5: Since the plaintiffs are entitled to the property, the prayer for partition is to be allowed. The vendor of the plaintiff was given only 12 cents although he has sold 15 cents in favour of the 1st plaintiff. Ext.A3 is executed on the assumption that the executant has got 15 cents of property. I have already held that 1st plaintiff was only entitled to 12 cents and as such there will be proportionate deminution in the share of the 2nd plaintiff also. 2/3 of the right of the 1st plaintiff was assigned in favour of the 2nd plaintiff. Since the Ist plaintiff entitled to 12 cents 2nd plaintiff is entitled to 8 cents alone as per Ext.A3. I, therefore, hold that the 1st plaintiff is entitled to 4 cents and the 2nd plaintiff is entitled to 8 cents in Sy.No.117/3. These issues are decided accordingly." 2. Plaintiffs filed I.A No.854/85 in O.S No.385/1982 for passing a final decree. A commission was appointed who filed Ext.C1 report and C2 plan. It appears that parties had filed objections to Commissioner's report. However,no evidence was adduced by either side. R.S.A No.365 of 2010 2 3. The main objection taken by defendants 1 and 2 and respondents 1 and 2 in the final decree application is regarding the allotment of 12 cents which was shown as BCDEFGH is not correct and the petitioners are entitled to only ¼ share over the property available for partition. Since the total extent of property found to be only 40 cents their ¼ shares comes only 10 cents. Accordingly it was contended that plaintiffs are entitled only to 10 cents. However, the courts below noticed that in the preliminary decree it was specifically mentioned that plaintiffs are entitled to 12 cents that preliminary decree having determined the right of the parties the contention was unacceptable. Accordingly, the contention of the appellants was rejected and final decree was passed. 4. Defendants 1 and 2 carried the matter in appeal as A.S. No.350/2003 before the Sub Court, Neyyattinkara. The lower appellate court concurred with the findings of the trial court and dismissed the second appeal. 5. Learned counsel appearing for the appellants pointed out that the courts below are not justified in R.S.A No.365 of 2010 3 allotting 12 cents of land to the plaintiffs. It is clear from the reading of the preliminary decree itself that what was claimed is only ¼ share over the property available for partition. When the property was measured it was found that property has only a lesser extent. Since the total extent is only 40 cents, plaintiffs are entitled to 10 cents. 6. It is difficult to accept the contention raised by the learned counsel for the appellants. In the preliminary decree, it is very clearly stated that plaintiffs are entitled to 12 cents and it is not mentioned that ¼ share of the extent of property available for partition or in other words, the extent of property available to the plaintiffs has been specifically mentioned in the preliminary decree. 7. In the above circumstances, it is may not be possible to grant any reliefs to the appellants. Appeal is devoid of merit and it is liable to be dismissed. I do so. P.BHAVADASAN, JUDGE ma R.S.A No.365 of 2010 4 R.S.A No.365 of 2010 5