IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 RFA.No. 508 of 2008() --------------------- OS.59/2004 of SUB COURT, OTTAPPALAM .................... APPELLANT/ISTDEFENDANT ----------------- MUHAMMEDALI, AGED 60 YEARS, S/O.LATE USSAINAR, THALIKKUZHI HOUSE, KONIKKUZHI.,P.O, PULAPPATTA, OTTAPPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENTS/ PLAINTIFF AND DEFENDANT2&3: --------------------- 1. YUSUF, AGED ABOUT 54 YEARS, S/O.LATE USSAINAR, THALIKKUZHI HOUSE, KONIKKUZHI.P.O, PULAPPATTA, OTTAPPALAM. 2. AMINA, AGED ABOUT 64 YEARS, S/O.LATE USSAINAR, THALIKKUZHI HOUSE, KONIKKUZHI.P.O, PULAPPATTA, OTTAPPALAM. 3. NABEEZA, AGED ABOUT 56 YEARS, D/O.LATE USSAINAR, THALIKKUZHI HOUSE, KONIKKUZHI.P.O, PULAPPATTA, OTTAPPALAM. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 SRI.K.RAVI (PARIYARATH) FOR R1 THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- R.F.A.NO.508 OF 2008 -------------------------------- Dated this the 14th day of October, 2008 JUDGMENT Raman,J. Appellant is the lst defendant in O.S.No.59/2004 on the file of the Sub Court, Ottapalam. It is a suit for partition. Appeal is directed against the preliminary decree passed in the said suit. As per the plaint averment, items 1 and 2 of the plaint schedule properties were acquired by Ussainar under leasehold right and he purchased jenm right also. After his death, plaintiff and defendants are co-owners of the property. Plaintiff and defendants are entitled to 4/48 shares each, defendants 2 and 3 are entitled to 7/48 shares each and 4th defendant is entitled to 6/48 shares. The lst defendant is in possession and managing the properties for and on behalf of other co-owners. Annual income from the properties is Rs.5,000/-. Plaintiff claimed share of profit. The 4th defendant-mother died pending the suit. Defendants 2 and 3 remained ex parte. The lst -2- RFA.No.508/2008 defendant contested the suit. He disputed the extent of plaint schedule item No.1. According to him, the extent is less than 20 cents and not 71 cents as claimed in the plaint. The lst defendant also said that his personal properties are on the eastern and southern side of the plaint schedule item No.1 and the plaintiff has shown the extent wrongly. There is also a dispute that item No.2 is not a property of late Ussainar and no one has any right over the same. After framing necessary issues, the court below proceeded to decide the case after taking evidence. Exts.A1 and A2 were marked on the side of the plaintiff and Exts.B1 to B3 were marked on the side of the defendants. The court below found that item No.2 is not available for partition. Neither side has filed any appeal therefrom. As regards item No.1 the dispute was regarding the extent of the property. But the court below relegated that issue to be decided in the final decree proceedings. The plaint item No.1 is ordered to be divided into 48 equal shares after identifying and ascertaining its extent and declared that the plaintiff is entitled to 16 -3- RFA.No.508/2008 such shares. So long as the extent of the shares as per the preliminary decree is concerned, there is no dispute. However, the appellant contended that the court below should not have deferred the consideration of the issue regarding the actual extent available for partition to the final decree proceedings. According to him, the eastern boundary shown in the plaint schedule is purambokku. Therefore unless the extent available under item No.1 of the plaint schedule is ascertained in the preliminary decree itself, it will be an idle exercise to relegate the same to the final decree proceedings. 2. We have heard both sides. 3. It is true that the actual extent available alone is in dispute. But going by the eastern boundary shown it is only purambokku. Therefore there is likelihood of a dispute raised even in the matter of identifying the property. It will not be proper to defer such an issue for consideration to the final decree stage rather it is desirable to decide the same now itself, after taking out a Commission by either side. As regards the actual extent available under item -4- RFA.No.508/2008 No.1, if any further evidence is required to be adduced by either side, it may be permitted. The extent of shares as found by the court below in the preliminary decree is confirmed. For the limited purpose of deciding the extent available under item No.1, the preliminary decree is set aside and the matter is remanded. In all other respects, the preliminary decree is confirmed. Parties to appear before the court below on 4/11/2008. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.