IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 AS.No. 311 of 1997(E) --------------------- AGAINST THE ORDER DATED 29/03/1997 IN IA.2154/95 IN IA.2201/91 IN OS.23/1990 of IST ADDL..SUB COURT,THRISSUR .................... APPELLANT/IST DEFENDANT/IST RESPONDENT: ----------------- C.J.RAPLHAEL, S/O. JOSEPH, CHIRIYANKANDATH HOUSE, ANAKKALLU, P.O. AVINISSERRY, OLLUR, THRISSUR DISTRICT PIN 680 313. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENTS/PLAINTIFF & 2ND DEFENDANT/PETITIONER/2ND RESPONDENT: --------------------- 1. SEBASTIAN JOSEPH, S/O.LATE C.R.JOSEPH, CHIRIYANKANDATH HOUSE, ANAKKALLU, LALUR, P.O. ELTHURUTH, TRICHUR DIST. 2. REV. SISTER MARIA; CHF, HOLY FAMILY IFDF (SOCIO MEDICAL CENTRE), VADOOKKARA P.O., VIA. KOORKKECHJERRY, TRICHUR DISTRICT, PIN. 680 001. ADV. SRI.P.V.CHANDRA MOHAN FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- A.S.NO.311 OF 1997 --------------------------- DATED THIS THE 8TH DAY OF SEPTEMBER, 2009 JUDGMENT The lst defendant in O.S.No.23/1990 on the file of the Sub Court, Thrissur is the appellant. The matter arises in the final decree proceedings. The appeal is directed against the judgment and decree dated 21/10/1993 in I.A.No.2201/1991 as amended by order dated 29/3/1997 in I.A.No.2154/95. The parties are hereinafter referred to as the plaintiff and defendants as in O.S.No.23/90 of the Sub Court, Thrissur. 2. The plaintiff and lst defendant are brothers. The suit was filed for partition claiming one half share over plaint A and B schedule properties. Item No. I is 1.13 acres of land comprised in Sy.No.328/2 of Aranattukara Village. The 2nd item is 4.40 acres of land ( Kole Nilam ) in Sy.No.901 of the same Village. Admittedly, item No.1 belongs to the father of the parties and item No.2 belongs to their mother. The 2nd defendant in the suit is their sister. -2- A.S.No.311/1997 She is a missionary, who joined the convent and she executed a release deed in favour of her brothers. The lst defendant did not contest the case and he remained absent. A preliminary decree for partition was passed on 29/3/1990. The decreetal portion is as follows: ''That the property described in the schedule to the plaint shall be divided into two equal shares and the plaintiff is allotted with one such share. The remaining one share is entitled to the lst defendant. But no separate allotment shall be made since he has not paid the requisite court fee. That the costs of the suit shall come out of the estate and any of the parties is at liberty to apply for passing of a final decree; in terms of this preliminary decree.'' 3. The plaintiff filed I.A.No.2201/91 for passing a final decree. The court below deputed a Commissioner to measure and demarcate the property by metes and bounds. The Commissioner inspected the property. Report and plan were marked as Exts.C1 and C2. In the first report the Commissioner divided item No.1 -3- A.S.No.311/1997 into two equal halves. Regarding item No.2 it is reported that since the property is submerged in water, he is unable to effect partition of the said property. The said fact was reported to the court. Subsequently, the Commissioner again inspected the site. He had reported that item No.2 is submerged in water. At the same time, he submitted the 2nd report allotting item No.1 property to the plaintiff and item No.2 property to the appellant/lst defendant. For equalizing the share it is reported that the plaintiff shall pay Rs.1,578 to the appellant/lst defendant after deducting Rs.660/- towards the value of the stamp paper. A final decree was passed in the absence of the appellant/lst defendant. Exts.C1 report and C2 plan will form part of the decree. Subsequently, the plaintiff filed another petition as I.A.No.2154/95 on 10/4/1995. The 2nd report and plan alone were marked as Exts.C1 and C2. Therefore, the plaintiff filed an application for amending the final decree and judgment. According to the plaintiff, by an oversight the earlier report of the Commissioner was marked as Exts.C1 and C2. -4- A.S.No.311/1997 Therefore, he prayed in I.A.No.2154/95 to correct the final decree and judgment dated 21/10/93 by marking Exts.C1 report and C2 plan instead of the lst report and plan. That petition was allowed by the final decree court. The final decree dated 21/10/1993 and the order in I.A.No.2154/95 dated 29/3/1997 are under challenge. 4. Admittedly, the parties are brothers. They are entitled to possess and enjoy item Nos.1 and 2 in equal shares. Learned counsel for the appellant submitted that there is no comparison between items 1 and 2 properties. Item No.1 is a double crop nilam which is enjoyed by the parties by effecting cultivation. Item No.2 property is a kole nilam and is situated nearby a canal. It is difficult for both parties to cultivate the said property, since the property is submerged in water during all seasons. The Commissioner in his report dated 28/6/1993 reported the lie and nature of both the properties. He also reported that during March- April water is flooded in the property and the depth of water in the property is from 3 feet to 5 feet. It is further reported by the -5- A.S.No.311/1997 Commissioner that since the canal is lying by the side of this property, the property is always submerged in water and it is impossible to use the property for cultivation and that for the last 3 to 4 years no cultivation has been done for the said reason. 5. In light of the report of the Commissioner dated 28/6/93, the proper remedy open to the court was to divide item No.1 property into two equal halves and also to divide item No.2 into two. There is no justification nor it is fair to allot the valuable property to one sharer and to allot the property which cannot be put to any use to the other sharer. In such circumstances, both properties would have been divided into two by metes and bounds. Demarcation of two items would have been done. It is true that the appellant/lst defendant did not appear before the court below at the relevant time and did not point out inequities in the division. Only when he came to know that there was a 2nd report and final decree was passed based on that report, he challenged the same in appeal before this Court. He had also filed a detailed counter affidavit -6- A.S.No.311/1997 stating the true facts and requested the final decree court to pass a revised decree. 6. In the light of the facts and circumstances stated above, the final decree passed by the court below requires re-consideration. In the result, the final decree and judgment under appeal is set aside and the matter is remanded for fresh disposal in accordance with the observations made above. The parties shall at liberty to adduce evidence, if any, in support of their respective contentions. A Final decree shall be passed by the court below within a period of nine months from the date of receipt of a copy of this judgment. The final decree court shall equally divide each items of properties to the parties. No order as to costs. HARUN-UL-RASHID, Judge. kcv. -7- A.S.No.311/1997 HARUN-UL-RASHID,J. -------------------------- A.S.NO.311 OF 1997 -------------------------- JUDGMENT 8th September,2009 -8- A.S.No.311/1997