IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 AS.No. 745 of 1999(A) --------------------- AGAINST THE ORDER DATED 29/ 9 / 1995 IN IA.522/96 IN OS.193/1993 of SUB COURT, KASARAGOD .................... APPELLANT(S)/DEFENDANTS 1 TO 3: -------------- 1. B. KAMMADATHU, AGED 53 YEARS. WIDOW OF LATE NARAYANA MANIYANI, HINDU. CULTIVAROR, R/AT THACHANGAD OF PANAYAL VILLAGE. POST PANAYAL, HOSDURG TALUK. 2. KAMALA LAKSHMI, AGED 52 YEARS W/O. NARAYANAN MANIYANI, HINDU, CULTIVAOR, R/AT KAPIRYA IN KOLATHUR VILLAGE, POST KOATHUR, (VIA) CHANGALA, KASARAGOD TALUK. 3. BALAN, S/O. RAMAN MANIYANI, HINDU, CULTIVATOR, AGED 35 YEARS, R/AT KIZHAKKETHODI, PERUMBALA VILLAGA, KASARAGOD TALUK. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S)/PLAINTIFF: --------------- A. GOPALAKRISHNA, AGED 49 YEARS, S/O. KRISHNAN PARMUDARAYA, HINDU, CULTIVATOR, R/AT POINACHI IN THEKKIL VILLAGE, KASARAGOD TALUK, POST THEKKIL ADV. SRI.K.SHRIHARI RAO THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- A.S.No. 745 OF 1999 --------------------------------- Dated this the 3rd day of February, 2009 JUDGMENT This is an appeal preferred against the final decree passed in O.S. 193/1993 of the Subordinate Judge, Kasaragod. The short point that arise for determination here is that with respect to the extent of the property to be divided in Survey No. 153 which is plaint A schedule in item No.1. As per the plaint schedule, even according to the plaintiff the property to be divided is 50 cents of land. But when the Commissioner inspects the property he had given a document to the Commissioner contending that he had purchased some property in the year 1971 and therefore the property covered by that document has to be excluded and what is available is only 26 cents of land. The Commissioner has accepted that document and partitioned the property. 2. I am afraid, the Commissioner has gone wrong. The suit is filed with specific averments and in para 3 of the plaint there is a specific averment to the effect that item No.1 of the A schedule property was obtained as per registered partition deed document No. 696/1971 dated 8.1.1971. So the plaintiff traces her title to the A.S. 745/1999 -2- property on the basis of this document. It is she who had described the extent of the property as 50 cents in the plaint schedule. So in order to properly determine the actual extent of the property that will be available for division, the properties so obtained under the 1971 partition deed referred to in the plaint has to be identified and when that property is identified, it is that extent which has to be divided and not by simply accepting plaintiff's document in relation to exclusion. Therefore the final decree passed by the trial court is incorrect which requires interference. 3. Therefore the final decree passed by the trial court is set aside and the matter is remitted back to the trial court with a specific direction to be given to the Commissioner to identify and locate item No.1 of the plaint schedule property as described in document No. 696/1971 relied upon by the plaintiff. Whatever extent is available under that document be divided actually by metes and bounds especially in the backdrop that there was no dispute with respect to the extent of the property shown as item No.1 in plaint A schedule. If the same Commissioner is available let him be appointed to do the same and in case of non availability, a fresh Commissioner may be appointed and let him do the work as A.S. 745/1999 -3- directed above. Parties are directed to appear before the trial court on 10.3.2009 and an earnest effort shall be made for an expeditious dispose of the matter for the reason that the suit is in the year 1993. M.N. KRISHNAN,JUDGE vkm