IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 RSA.No. 745 of 2004() ----------------- AS.138/1997 OF PRINCIPAL SUB COURT, THALASSERY OS.258/1992 OF MUNSIFF COURT, THALASSERY ................. APPELLANTS / APPELLANTS / PLAINTIFFS : ---------------------------------------------------------------- 1. P.P. GIRIJA, D/O. CHERIYAMBU, AGED 60 YEARS, NO OCCUPATION, PUTHANPURA HOUSE, KOYYODE, CHEMBILODE, KANNUR DISTRICT. 2. SHEELA CHANDRAN, D/O. CHANDRAN, AGED 33 YEARS, NO OCCUPATION, PUTHANPURA HOUSE, KOYYODE, CHEMBILODE, KANNUR DISTRICT. 3. REKHA PRADEEP, W/O. PRADEEP, AGED 30 YEARS, 11 STREET EXTN.GANDHIPURAM, COIMBATORE. BY ADVS. SRI.R.SURENDRAN SMT.P.GOPIKA RESPONDENTS / RESPONDENTS / DEFENDANTS: --------------------------------------------------------------------- 1. PUTHANPURAYIL NARAYANAN, S/O. CHERIYAMBU, AGED 67 YEARS, RETIRED CLERK, CHATHOTH HOUSE, ALAVIL, KANNUR. 2. P.P. PADMANABHAN, S/O. CHERIYAMBU, AGED 64 YEARS, RETIRED DEPO MANAGER, W.I. PLYWOODS, NEAR KOTTERI AMBALAM, JAYANTHI ROAD, CHALAT, KANNUR. 3. P.P. PURUSHOTHAMAN, S/O. CHERIYAMBU, AGED 59 YEARS, NIYATHI, BEHIND POTHERI HOUSE, MUNDAYAT, KANNUR. 4. P.P. VIJAYAN, S/O. CHERIYAMBU, AGED 57 YEARS, ENGINEER, RESIDING AT 14, KIRANS ST.PIOUS, CO-OPERATIVE HOUSING SOCIETY, MULUND, WEST BOMBAY-80. ...2/- RSA.No. 745 of 2004() -2- 5. P.P. VANAJA, W/O. MITHRAN, AGED 53 YEARS, DEEPAM, ONDEN ROAD, NEAR ST.ANTONY CHURCH, KANNUR. 6. DEEPA PREMCHAND, W/O. PREMCHAND, AGED 31 YEARS, C-2/522, AGASTHYA SECTION V, SREE SAKTHI HOUSING SOCIETY, MIRA ROAD, BOMBAY. 7. ANIL MITHRAN, S/O. MITHRAN, AGED 29 YEARS, C/O. SERVICE LINKS-1, GANGA NIVAS VILAGE ROAD, BHANDEEP (WEST) BOMBAY. 8. P.T. PRAJITH, S/O. BHASKARAN, AGED 29 YEARS, P.B.NO.3466, PIN-112, SULTANATE OF OMAN. 9. P.T. SAJITH, S/O. P.P. BHASKARAN, AGED 28 YEARS, `PRASASREE', P.O. KOYYODE-670 621, CHEMBILODE AMSOM DESOM. 10. SREEJITH, S/O. P.P. BHASKARAN, AGED 24 YEARS, 14, `KIRAN', TRIMURTHI MARG, MULUND (WEST) MUMBAI-400 080. R1, R2, R7 & R9 BY ADV. SRI.V.RAJAGOPAL R3 BY ADVS. SRI.P.T.ANTONY SRI.N.SUNIL JOSEPH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.745 OF 2004 --------------------------------------------- Dated 10th June, 2011 JUDGMENT Plaintiff in O.S.258/1992 on the file of Musiff court, Thalassery are the appellants. Defendants are the respondents. The suit is for partition of the plaint schedule property, which was kept common under Ext.A1 partition deed entered into by the parties on 6/5/1980. Appellant would contend that the property is available for partition and it is to be divided into 11 equal shares and appellants are entitled to three such shares. Extent of the plaint schedule property shown in the plaint was 3 cents. Respondents 1 to 4 and 6 filed joint written statement admitting that plaint RSA 745/04 2 schedule property jointly belongs to the appellants and respondents and it is available for partition. But it was contended that the extent is not as shown in the plaint. According to these respondents property which was kept common includes not only 3 cents, but inclusive of the building, an extent of 15 cents and it is to be divided between the parties and their share is to be separated as a group. Respondents 5, 7 and 8 together filed a written statement raising almost identical contentions. They contended that the property which was kept common under Ext.A1 partition deed is the house, courtyard, well and the land in item No.12 of Ext.A1 partition deed and the total extent would come to 15 cents and that property is liable to be divided. Third respondent also filed a written statement RSA 745/04 3 raising same contentions. Learned Munsiff on the evidence of Pws.1 and 2, DW.1, Exts.A1 to A15, B1 to B3,C1 and C2 found that the extent of the property is not 3 cents but 17.313 cents and it is plots A,A1, A2, A3 and A4 demarcated by the Commissioner and also the house in plot B as marked in Ext.C2 plan and properties are to be divided into 11 equal shares and plaintiffs are entitled to three shares and defendants 1 to 8 are entitled to one share each. The plot B in Ext.C2 plan was also found to be available for partition, the house constructed in the property was reserved in favour of the appellants. Plaintiffs challenged the judgment before Sub Court, Thalassery in A.S.138/1997 contending that what was kept common under Ext.A1 is only the tharawad house, courtyard and the well and RSA 745/04 4 hence plaint schedule property as found by the court below is not available for partition. It was also contended that plaint B schedule property is not part of the property kept common and therefore, it is not available for partition. Defendants filed cross objection contending that it is not only plot B but the house also is available for partition and are to be divided. 2. Learned Sub Judge on re- appreciation of the evidence found that plot B shown in Ext.C2 plan is also not available for partition, as it is not part of the property kept common under Ext.A1. Learned Sub Judge confirmed preliminary decree in respect of plots A, A1, A2, A3 and A4. Second appeal is filed challenging the said judgment. Respondents who filed cross objection before RSA 745/04 5 the first appellate court, did not challenge the modified decree, whereunder plot B itself was excluded from partition. Hence finding that plot B is not available for partition has become final. 3. Second appeal was admitted formulating the following substantial question of law. When an excluding clause in a document confines exclusion specifically to the extent of house, its plinth area, courtyard and well, was the courts below justified in finding that cow-pen and biogas plant also would fall within the exclusion and hence available for division. 4. Learned counsel appearing for the appellants and respondents were heard. 5. There is no dispute with regard to RSA 745/04 6 the rights of the parties or the shares. Whatever be the property available for partition, it is the common case that it is to be divided into 11 shares and plaintiffs and defendants are entitled to one share each. The only dispute is with regard to the extent of the property which is available for partition. Normally that question is to be relegated to the final decree proceeding. But it was exactly the question which was agitated before the trial court as well as the first appellate court. Therefore, it is necessary to conclude the dispute. 6. Though appellants in the plaint sought partition of only 3 cents, after the Commissioner submitted Ext.C1 report and C1(a) plan showing that inclusive of plot A1 the courtyard and plot A, the tharawad house, the RSA 745/04 7 extent is 8.3777 cents. Availability of that extent for partition is not disputed. So also, there is no dispute that plot A4, the well having an extent of 0.2938 cents is also available for partition. Therefore, out of the properties found available for partition in the preliminary decree, as confirmed by the first appellate court, there is no dispute with regard to plot A, A1 and A4. The only dispute is with regard to plots A2 and A3. Question is whether they are available for partition. 7. Learned Munsiff found that plots A2 and A3 having an extent of 5.1021 cents are available for partition, holding that the Commissioner in Ext.C1 report noted that there is a row of very old laterite stones to separate plots A1 and A2 and there are steps at the point A5, shown on the eastern side of RSA 745/04 8 plot A2 being the main entrance to the property where the tharawad house stands and there is no level difference between plots A1 and A2 and there is no way connecting plot A5 with plot A1, through plot A2, and the Commissioner could note a heap of hay staked in plot A2 adjoining the cowpen and a ruined biogas plant. It was also found that evidence of PW1 shows that she is using A3 cowpen to tie her cow and she also admitted that third defendant is also using the cowpen and in such circumstances, entire plots A2 and A3 are available for partition. 8. First appellate court confirmed that findings. Question is whether plots A2 and A3 could be held to be kept common under Ext.A1 partition deed. 9. Ext.A1 partition deed shows that RSA 745/04 9 while item No.12 was allotted to the plaintiff the tharawad house, the well and the courtyard were not divided and kept common to all the sharers. This is not disputed. Description of schedule No.12 property shows that property allotted to the plaintiffs was excluding the property which was kept common. Property thus excluded is specifically shown as “the house, the land where it stands, the courtyard and the well”. Therefore, if the property which was kept common is to be fixed, with reference to the description of the excluded property as stated in item No.12 of the schedule, it could only be the well, the courtyard, the tharawad house and the land where the tharawad house stands. But the body of the partition deed shows that out of the property in schedule No.12 allotted to the share of executants 7 to RSA 745/04 10 9, namely plaintiffs herein, the house, the well, the land and the courtyard which were kept common to be used by all the sharers were excluded and all the sharers have equal right over the excluded property. The property so excluded is explained as what was left common under the earlier partition deed No.2464/1945. Earlier partition deed was not produced before the trial court. Learned Munsiff has therefore, specifically found that though Ext.A1 shows that property which was kept common was the property, which was kept common under the earlier partition deed, the earlier partition deed was not produced by either the plaintiffs or the defendants. Before the appellate court I.A.2179/2000 filed by the appellants under Rule 27 of Order XLI of Code of Civil Procedure, producing the registration RSA 745/04 11 copy of registered partition deed No.2464/1945. I.A.2179/2000 shows that the said application was filed on 24/7/2000 and it was posted on 29/7/2000 to serve notice on the respondents and on 29/7/2000 it was posted for filing objections to 30/8/2000. But no objection is seen filed. On 14/12/2000 an order is passed on the application “received”. Unfortunately, learned Sub Judge while considering the appeal did not consider the question whether the said partition deed produced along with the application is to be received as additional evidence under Rule 27 Order XLI of Code of Civil Procedure and in fact the document was not considered at all. First appellate court was not justified in not considering the application filed under Rule 27 Order XLI of Code of Civil Procedure. As non production of RSA 745/04 12 the said document was commended upon by the learned Munsiff, first appellate court should have exercised the power under Rule 27 Order XLI, and should have looked into recitals in the document. The relevant recitals in the said registered partition deed does not throw any light, as what exactly was the extent of the property which was kept common. The relevant recital in that partition deed is that there used to perform a Theyyam (Bavuttan) in the tharawad house and though no properties were set apart for that purpose, as the tharawad house is allotted to the second group, they have to meet the expenses and perform Bavuttan. There is no other data to fix the extent of the tharawad house or the courtyard based on the said partition deed. 10. Argument of the learned counsel RSA 745/04 13 appearing for the respondents is that though schedule 12 of Ext.A1 excludes only the house, the land where the house stands, the courtyard and the well, what was excluded under the earlier partition deed in addition to the house, courtyard and the well, the land also as found by the courts below and hence the properties as found by the first appellate court are available for partition. Learned counsel would argue that hence plots A2 and A3 should be considered as the land excluded from partition under Ext.A1 and therefore, as found by the courts below, they are to be divided between the parties. 11. Argument of the learned counsel could have been accepted, if the recitals in Ext.A1 would give any indication to fix the land, which is stated as excluded based on RSA 745/04 14 Ext.A1. When the recitals in Ext.A1 is only to the effect that the tharawad house, the courtyard, the well and the land are excluded from division as they are kept common and all the sharers are entitled to equal shares there is no basis to fix the land unless the land is the one over which those structures stand. If the argument of the learned counsel is correct, then the extent of the land which was kept common would have been specifically shown either at the place where the recitals are seen or at least in the body of the schedule. As seen from the schedule the land excluded on the earlier part of the partition deed, could only be the land where the building stands and not the land which is outside the courtyard as claimed by the respondents. 12. Learned counsel appearing for RSA 745/04 15 the respondents admitted that the land is not separate land but the land where the building, courtyard and the well stands. If that be so, the question is whether plots A2 and A3 marked in Ext.C2 are part of the courtyard. Plot A3 can never be part of courtyard, as admittedly it is a cowpen. If under Ext.A1 partition deed, the cowpen was excluded, it would have specifically mentioned. When cowpen was not excluded as is clear from Ext.A1 partition deed, it can only be found that it was not kept common. Therefore, plot A3 in Ext.C2 is not available for partition. The preliminary decree to that extent is therefore, to be modified. 13. Then the question is whether plot A2 form part of the plot A1 is the courtyard. As seen from Ext.C2 plan the cowpen (plot A3) is RSA 745/04 16 surrounded by plot A2 on the three sides, except the west where it is plot A1 the undisputed courtyard. Ordinarily a courtyard is to the house and not for a cowpen. Therefore, by no stretch of imagination courtyard of tharawad could be extended either to south or to the north or to the east of A3 cowpen. Therefore, those portions of A2 cannot be treated as courtyard of the house. If so those portions cannot be part of the courtyard. There is a demarcating ridge formed by stones, separating A1 and A2 plot. A1 is the courtyard forming the front side of the tharawad house. For the reason that a portion of the land in A2 is in between the steps leading to the tharawad house and the steps at the point A5, A1 courtyard, extends beyond the northern ridges. If so, that portion of plot A2 also cannot be RSA 745/04 17 treated as part of the courtyard. Therefore, either for the reason that there are steps on the eastern boundary of plot A2 at the point A5 shown in Ext.C2 or for the reason that, that portion of plot A2 is in between the said steps and the undisputed courtyard, it cannot be said that plot A2 is also courtyard. Nowhere the entire fronts area, irrespective of the area, will be taken as courtyard. When the house is in the middle of the plot, for the reason that the entrance to the house plot is from one side, it cannot be treated that the courtyard of the house extends to the whole area. Courtyard could only be the area used as courtyard. If that be so, courtyard which was specifically excluded while dividing the property and kept common under Ext.A1, could only be plot A1. Hence the property kept RSA 745/04 18 common under Ext.A1 are the tharawad house (plot A), the well (plot A4) and the courtyard (plot A1) as demarcated by the Commissioner in Ext.C2 plot. Plots A2 and A3 cannot be part of the common property, kept under Ext.A1. Therefore, they are not available for partition. As rightly pointed out by the learned counsel appearing for the respondents, when the entrance to tharawad is from the steps A5 necessarily, there should be a way from steps A5 to the courtyard plot A1 and that extent of the way should also be treated as kept common, though it is not specifically provided under Ext.A1. Therefore, preliminary decree passed by the first appellate court has to be modified to that extent also. Appeal is allowed in part. Preliminary decree passed by the learned Munsiff as RSA 745/04 19 confirmed by the learned Sub Judge is modified with regard to the extent of the property available for division. The properties available for partition are plots A, A1 and A4 and also the way from steps A5 to A1 courtyard in front of the tharawad house. In all other aspects the preliminary decree as confirmed by the first appellate court is confirmed. M.SASIDHARAN NAMBIAR, JUDGE. uj.