IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 SA.No. 201 of 1997() -------------------- OS.429/1990 of MUNSIFF COURT, MUVATTUPUZHA AS.4/1993 of SUB COURT,MUVATTUPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANTS: --------------------------------------------- 1. MARIAMMA, D/O.KURUVILA, RESIDING AT CHAKKALAYIL, MEKKADAMBU P.O., VALAKOM VILLAGE, MUVATTUPUZHA TALUK. 2. MINI.K.ABRAHAM, S/O.ABRAHAM, RESIDING IN -DO- BY ADV. MR.S.ANANTHASUBRAMANIAN MR.S.SHYAM MR.N.SUKUMARAN RESPONDENTS/RESPONDENT NO.1 AND ADDITIONAL RESPONDENTS 3 TO 6/1ST DEFENDANT AND LEGAL REPRESENTATIVE OF THE 2ND DEFENDANT: ----------------------------------------------------------------------------------- 1. SANKU SREEDHARAN, S/O.SANKU, RESIDING AT NJAVALANGATTUPURA, CHATHANATTUTHOTTATHIL, MEKKADAMPU P.O., VALAKOM VILLAGE, MUVATTUPUZHA TALUK. 2. PARU AMMA, W/O.KUNJAN NAIR, PADINJARE VEEDU, -DO- -DO- -DO- 3. CHANDRASEKHARAN NAIR, S/O.KUNJAN NAIR, -DO- 4. RAVEENDRAN NAIR, S/O.KUNJAN NAIR, -DO- -DO- 5. SARADA, W/O.A.N.AYYAPPAN, ANYGRAHAM, IRUMPANAM PO., THRIPUNITHURA, ERNAKULAM. ADV. MR.N.GOVINDAN NAIR FOR R1 TO R5 MS.J.AJITHA FOR R1 TO R5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 201 of 1997 ORDER ON C.M.P.NO.565/1997 IN S.A.NO.201/1997 DISMISSED. 21.6.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.201 Of 1997 ---------------------- Dated this the 21st day of June, 2010. J U D G M E N T The defendants in O.S.No.429 of 1990 on the file of the Munsiff Court, Muvattupuzha are the appellants. Suit was filed for partition and separate possession seeking to divide the properties in three shares in confirmity with the allotment in Ext.B1 settlement deed and as per the decision in S.A.Nos.364 & 742 of 1985 and to set apart the shares of the plaintiffs namely, 27 cents and 100 square links each by metes and bounds out of 1.40 acres. The trial court decreed the suit as prayed for and confirmed in appeal. 2. Plaintiffs' case is that the plaint schedule property having an extent of 1.40 acres comprised in Survey No.153/3 of Valakom Village of Muvattupuzha Taluk originally belong to one late Kuruvila, that Kuruvila had executed Ext.B1 settlement deed in the year 1973 and that in Ext.B1 settlement deed the extent of the property owned by Kuruvila was wrongly noted as 2.17 acres. Kuruvila and his daughters are parties to Ext.B1 settlement deed. S.A.No.201 Of 1997 ::2:: The properties were divided into 4 shares and scheduled as A, B, C & D. A schedule property having an extent of 41 cents was reserved to Kuruvila, B schedule property allotted to 1st defendant and C & D schedule properties were allotted to other two daughters. Subsequently, Kuruvila executed another settlement deed, Ext.B2, in favour of the 1st defendant conveying the properties allotted to him under Ext.B1 settlement deed. Plaintiffs are assignees of allottees of C & D schedule properties. The property was measured by the commissioner deputed in O.S.No.158 of 1980. On measurement it was found that the property available is only 1.40 acres and not 2.17 acres. O.S.No.158 of 1980 is a suit filed by the present defendants against the plaintiffs for recovery of possession of portions of properties. This Court by Ext.A1 judgment in S.A.Nos.364 & 742 of 1985 filed by the respective parties in O.S.No.158 of 1980 held that the 1st plaintiff in O.S.No.158 of 1980 is entitled to 85 cents and 800 square links of properties and the defendants in the said suit each are entitled to 27 cents and 100 square links. 1st plaintiff in the said suit is the present first defendant and the S.A.No.201 Of 1997 ::3:: present plaintiffs are the defendants in that suit. This Court in the second appeals also held that in case there is complaint for the plaintiffs or defendants with regard to the actual area of the property which they are entitled under Ext.B1 settlement deed, it is for them to file a proper suit for that purpose. According to the plaintiff, the present suit is filed on the basis of the direction in Ext.A1 judgment. 3. On the basis of the above said facts, the trial court found that the property is partible. Plaintiffs each are entitled to 25 cents and 100 square links and the first defendant is entitled to 85 cents and 100 square links. The court below also held that the extent of the property to each parties which they are entitled to has already been decided as per Ext.A1 judgment and Ext.A1 judgment has become final. On the basis of the above said findings, the trial court passed a decree dividing the property into three shares, plaintiffs and defendants are allotted the extent referred above. 4. The defendants preferred appeal before the Sub Court, Muvattupuzha. The appellate court also appreciated the S.A.No.201 Of 1997 ::4:: contentions of the parties and held that the preliminary decree for partition passed by the trial court is not liable to be interfered with. 5. The learned counsel for the defendants contended that the suit for partition is not maintainable since the property has been partitioned already vide Ext.B1 settlement deed and the plaintiffs are assignees of the settlers. This question was considered by the lower appellate court. It was found in Ext.A1 judgment that Exts.B1 and B2 documents are executed by late Kuruvila on the assumption that the entire property covered by settlement deed is having an extent of 2 acres and 17 cents but, the actual extent is 1 acre 40 cents. Therefore, there was no separation of property by measurement by the execution of Ext.B1 settlement deed; Ext.B1 contemplates a future separation of property by metes and bounds and because of the execution of settlement deed and subsequent assignments, only remedy available to the parties is to seek partition of the properties. This Court also in the second appeal referred above held that the parties can file a proper suit for partition and separate possession S.A.No.201 Of 1997 ::5:: for that purpose. The parties did not get the actual area which they are entitled to under Ext.B1 deed. Filing of the suit for dividing the properties by metes and bounds on the basis of the commission report and observations of this Court in the second appeal is therefore justifiable and the suit is maintainable. 6. I do not find any reason to interfere with the findings recorded by the trial court which was confirmed by the appellate court. I fully agree with the conclusions and findings arrived at by the trial court, confirmed in appeal. No questions of law muchless any substantial questions of law arises for consideration in this appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-