IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 FAO.No. 29 of 2008() -------------------- AS.135/2007 of ADDL. DISTRICT COURT, PARAVUR OS.95/2007 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------------- JAGADCHANDRAN, S/O./ KAKKANATTU ACHUTHAN, MADAPLATHURUTHU KARA, MOOTHAKUNNAM VILLAGE. BY ADV. SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------- 1. DHARMARAJAN, S/O.KAKKANATTU ACHUTHAN, MADAPLATHURUTHU KARA, MOOTHAKUNNAM VILLAGE. 2. MANMADAN, S/O. KAKKANATTU ACHUTHAN, -DO- --DO-. 3. NEELAMBARAN, -DO- --DO-. 4. SHAJI, S/O. KALAVAMPARA PRABHAKARAN, -DO- --DO-. 5. MURALEEDHARAN, -DO- -DO-. 6. PRASANTH KUMAR -DO- -DO-. 7. C.K. GOPALAKRISHNAN, S/O. CHANDRASEERIL KUTTAPPAN -DO- -DO-. ADV. SRI.K.A.MANZOOR ALI FOR R.1 TO R3 SRI.P.A.HILAL, SRI.P.H.RISHAD SRI.K.A.MANZOOR ALI FOR R1 SRI.P.A.HILAL FOR R1 SRI.RISHAD P.H. FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/07/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.29 OF 2008 -------------------------------------------------------- Dated 15th July 2009 Judgment Bhavadasan, J. Aggrieved by the order of remand dated 13.12.2007 in AS No.135/07 before the Additional District Judge, North Paravur, the plaintiff before the court below has come up in appeal. The parties are referred to in this judgment as they are arrayed before the court below. 2. The suit was one for partition. The property admittedly belonged to late Subramanian, who died intestate on 14.12.1991. The property involved in the partition suit is 3 cents of land with a building therein. Admittedly, the property was taken on lease by the said Subramanian and the building therein was put up by him. He was conducting hotel business there. Earlier, there was a suit for eviction instituted by the original owner of the property against Subramanian. The said suit was dismissed on the basis of the finding rendered by a reference under S.125 of the Kerala Land Reforms Act by the concerned FAO 29/08 2 Land Tribunal holding that Subramanian was entitled to the protection of S.106 of the Kerala Land Reforms Act. When Subramanian died on 14.12.1991, his wife was alive. Later, she also passed away. The result was that the legal heirs of Subramanian now available are only the plaintiff and the defendants. The issue raised in this appeal is confined to the building and business. It is seen that the trial court granted 1/8th share in the structure to the plaintiff. The defendants were also entitled to get 1/8th share in the structure. 3. Aggrieved by the preliminary decree passed by the trial court, the plaintiff preferred an appeal before the Sub Court, North Paravur. The lower appellate court on appreciation of the materials before it, found that the structure in respect of which share was claimed is no longer in existence and therefore, if at all the plaintiff had a claim regarding the land, that has not been incorporated in the plaint. Finding so, the lower appellate court remanded the case to the trial court for appropriate amendment and decision thereon. FAO 29/08 3 4. From the above facts, it can be seen that initially, the claim of the plaintiff was confined to 1/8th share in the structure. That was granted. There was no claim for share on land. Now he sets up a claim for a share in the land also. So, it becomes necessary for the plaintiff to amend the plaint, making a claim over the leasehold property and that claim needs to be adjudicated. The plaintiff was unable to establish that the lower court was in error in remanding the case except regarding the finding that the suit has to be converted into one for declaration. The plaintiff may be entitled to claim his share on the lease hold land also, which should be determined by the court below. A declaratory prayer is not necessary. Subject to the above observation, the appeal is dismissed. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 29/08 4 FAO 29/08 5