IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 FAO.No. 53 of 2006() -------------------------- AS.16/2001 of ADDL.D.C.(SPL.COURT FOR TRIAL FOR MARADU CASES)KOZHIKODE OS.467/1967 of MUNSIFF COURT, VADAKARA ....................................................... APPELLANT/1ST RESPONDENT/PETITIONER --------------------------------------------------------------- THANICHAYATH KOOMULLY BALAKRISHNAN, S/O.KUNHIMADHAVI AMMA, VILLIAPPALLY AMSOM, MAYYANNUR DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENTS: ---------------------- 1. THOYATTU KAMALAKSHI AMMA, W/O.SANKARAN NAIR, 71 YEARS, VILLIAPPALLY AMSOM, MAYYANNUR DESOM, VADAKARA TALUK, KOZHZIKODE DIST. 2. THANICHAYATH KOOMULLY KUNHIMADHAVI AMMA, VILLIAPPALLY AMSOM, MAYYANNUR DESOM, VADAKLARA TALUK, KOZHIKODE DISTRICT. 3. KALARIKANDIYIL KUMARAN, KARTHIKAPPALLY AMSOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 4. YOUNGER BROTHER, BALAN, KARTHIKAPPALLY AMSOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 5. PUTHIYOTTIL KRISHNAN, KARTHIKAPPALLY AMSOM, MAYYANNUR DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 6. KORANDIKUNIYIL CHEERU, RESIDING AT THOYATT MEETHAL, VILLIAPPALLY AMSOM, VADAKARA TALUK,.MKOZHIKODE DISTRICT. 7. THOYATT MEETHAL NARAYANI, VILLAIAPPALLY AMSOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 8. MARULATH KUNI MATHA AMMA, AROOR AMSOM, PERUMUNDASSERY DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 9. DAUGHTER PADMAVATHY AMMA, AROOR AMSOM, PERUMUNDASSERY DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 10. BROTHER, SREEDHARAN NAMBIAR, AROOR AMSOM, PERUMUNDASSERY DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 11. SISTER, SREEDEVI AMMA, AROOR AMSOM, PERUMUNDASSERY DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 12. BROTHER RAVI, AROOR AMSOM, PERUMUNDASSERY DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 13. KIZHAKKAYIL JANU AMMA, VILLIAPPALLY, VADAKARA TALUK, KOZHIKODE DISTRICT. 14. SON, RAMACHANDRAN, VILLIAPPALLY, VADAKARA TALUK, KOZHIKODE DISTRICT. 15. SISTER, SREEMATHY, VILLIAPPALLY, VADAKARA TALUK, KOZHIKODE DISTRICT. 16. YOUNGER SISTER, VALSA, VILLIAPPALLY, VADAKARA TALUK, KOZHIKODE DISTRICT. 17. YOUNGER SISTER, SANTHA, VILLIAPPALLY, VADAKARA TALUK, KOZHIKODE DISTRICT. 18. BROTHER, HARI, VILLIAPPALLY, VADAKARA TALUK, KOZHIKODE DISTRICT. 19. YOUNGER BROTHER RAVI, VILLIAPPALLY, VADAKARA TALUK, KOZHIKODE DISTRICT. * RESPONDENTS 4 TO 19 DELETED AT THE RISK OF APPELLANT AS PER ORDER DATED 8.2.07 IN I.A.806/06 IN FAO53/06. ADV. SRI.K.V.SOHAN FOR R1 SMT.SANJANA R.NAIR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN,J. ====================== F.A.O.No.53 OF 2006 ====================== Dated this the 10th day of March 2010. JUDGMENT This appeal is preferred by the plaintiff in the suit against the final decree passed by the trial court and remitted by the appellate court in AS.16/2001. The present dispute is between the plaintiff and 10th defendant in the suit. The 1st defendant in the suit is the mother of the plaintiff and she is no more. The plaintiff has become her legal representative as well. As per the preliminary decree the properties were ordered to be divided into two shares and to allot one out of two shares to the plaintiff. The plaintiff was also entitled to his share of rent from the lessees in possession. It was further observed that while dividing properties in possession of tenants they will, as far as possible, be alloted to the 1st defendant subject to the findings under issue No.7 and 8. The second defendant was also directed to pay the cost to of the plaintiff in the suit. F.A.O.No.53 OF 2006 2 Thereafter, an application for passing preliminary decree was filed and the learned Munsiff Vadakara by his order in I.A.No.6/94 in O.S. No. 467/67 passed a final decree. Against that final decree the 10th defendant moved an appeal before the appellate court. The appellate court by its judgment held that the finding of the first court on allotment is incorrect and held that the said finding is liable to be set aside and therefore remanded the case back to the trial court for passing a final decree in accordance with the preliminary decree. 2. At the outset I may have to state that there is real confusion in the preliminary decree passed by the trial court. Now no other court can try to rectify it for the reason that the parties have accepted it and it has become final. So far as present case is concerned, the 10th defendant is claiming right over the property by virtue of assignment deed Ext.B10 and Ext.B11. It is the properties covered by those documents that are alloted to the plaintiff in the final decree by the trial court along with some other items. The F.A.O.No.53 OF 2006 3 finding on some of the issues in the preliminary judgment will be necessary to understand the case. The trial court on issue No.4 held that the plaintiffs is not in possession of the property. Issue No.4 was raised as to whether the plaintiffs are in possession. The learned trial judge held that in the light of the evidence afforded by Exts.B4,B5,B7 and B8 to B13 and B14, it is not possible to hold that the plaintiff is in possession of the properties covered by the document. Issue No.7 related to the profits. It was held by the court that with respect to the properties covered by the documents in the possession of the tenants the plaintiff will be entitled to get his half share of rent(purapad). Issue No.8 related to all the reservations and equities, the parties are entitled to. The learned trial judge held "as the plaintiff has not sought recovery of the properties in the interest of justice the reservation claimed by them should as far as possible to be allowed but it shall not prejudice the right of the plaintiff in the plaint schedule properties. As far as possible the share of the plaintiff's properties will be free F.A.O.No.53 OF 2006 4 from the encumbrances imposed on it.” So a reading of the finding on issue No.8 only considered about the reservation or equity to be granted in favour of the defendants and the court has taken very specific care to see that the right of the plaintiff shall not be prejudiced. The operative portion of the judgment makes it very clear that the preliminary decree entitles the plaintiff to have the partition of the plaint schedule properties, but subject to the finding on issue No.7 and 8. 3. The learned counsel for the appellant very strongly contends before me that allotment of properties covered by Ext.B10 and Ext.B11 by the trial court cannot be interfered with for the reason that the preliminary decree makes it very clear that the defendants are only entitled to reservations by way of equity, that too without prejudicially affecting the right of the plaintiffs. On the contra, the learned counsel for the respondent would strongly contend before me that the judgment read as a whole would reveal that the plaintiff is not entitled to F.A.O.No.53 OF 2006 5 possession of any of the properties and therefore the trial court should not have attempted to take away the right which is granted by the judgment. Since this court is only hearing an appeal on the final decree and as this court cannot go into the merits and demerits of the preliminary judgment in this stage, whatever is there in the operative portion of preliminary decree has to be given weight and implemented on finding on Issue No.7 finding of Issue No.7 the court granted mesne profits in the form of rent from the tenants and on issue No.8 it directed the court to considerer the question of equity without prejudice to the right of the plaintiff in the case. I am not justified in this case to go in to the correctness of legality of such findings entered by the trial court, at this stage. 4. Now how to resolve the issue is the main question. When at the out set I may state there is change of circumstance in this case for the reason that the other sharer, namely the 1st defendant, had died and plaintiff has become the legal heir of that defendant also whereby F.A.O.No.53 OF 2006 6 he is entitled to all the properties. Suppose the 1st defendant was in possession of any of the properties by way of equity, that property has to be alloted to the share of the plaintiff's half share, so that as far as possible the direction given in the preliminary decree can be complied by applying the equitable relief. As correctly pointed out by the learned counsel for appellant if some other item is alloted which is also out standing in the possession of others it will prejudice them. So if none of the properties are in the possession of the defendant and a stage has come whereby the plaintiff has to be alloted at least some property to be in possession then the methodology is to find out the properties in the possession of the alienees from the 1st defendant and work out equitable relief by carving out portions of those properties, after hearing of those concerned. There cannot be any disturbance of the properties which are in the possession of the tenants obliviously for the reason that title had been conferred on them by provisions of the Kerala Land Reforms Act. So at F.A.O.No.53 OF 2006 7 any rate the matter requires a re-consideration by the trial court. Therefore I dispose of the FAO as follows:- 1. The trial court is first directed to find out whether there was any property outstanding in the possession of the 1st defendant and if it is so let that property be alloted to the share of the plaintiff. So that equity can be worked out. 2. If no such property was available with the first defendant then the only remedy is to carve out portion from the alienation made by the 1st defendant and that too in an equitable manner without prejudicially affecting only one of the alienees for the reason the last come first go may not apply because it relates the alienation of a thavazhy property which are held as void. 3. For that purpose a hearing may be conducted first to know the facts and thereafter commissioner can be given appropriate directions to effect the division of the property. F.A.O.No.53 OF 2006 8 When the commissioner files a report let the parties be permitted to file objection and let in evidence and thereafter the matter may be decided as warranted under the preliminary decree. If none of the above methodologies are workable the trial court can pass an appropriate final decree in the matter after hearing all concerned in accordance with law. Parties are directed to appear before the court below on 8.4.2010. M.N.KRISHNAN,JUDGE. mns