IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 AS.No. 756 of 1998() -------------------- OS.169/1995 of SUB COURT, QUILANDY .................... APPELLANT/DEFENDANT -------------------------------------- 1. VANIYAMKANDY CHEERU AGED 65 YEARS (DIED) D/O KUNKI RESIDING AT VALIYATHOTTATHIL PARAMBIL, KIZHKKEKANDAM PARAMBIL KOYILANDY TALUK. ADDL.A2 KALYANIKUTTY, D/O CHEERU RESIDING AT PADIKUNNUMMAL HOUSE, KOOTTALIDA, KOZHIKODE. ADDL.A3. KAARTHIYANI, D/O CHEERU, RESIDING AT PUTHUVAYIMEETHAL HOUSE, KAYANNA, KOZHIKODE. ADDL.A4 KUNHIKRISHNAN, S/O CHEERU, RESIDING AT KUNNUMMAL HOUSE, AVIDANALLOOR, KOZHIKODE. ADDL.A5. SANTHA, D/O CHEERU, RESIDING AT VAYYOKKALMEETHAL HOUSE, KAKKUR, KOZHIKODE (ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT VIDE ORDER DATED 8.9.2009 ON I.A. NO. 2845 OF 2009) BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS: PLAINTIFFS IN SUIT ----------------------------------------------------- 1. OCHUMMAL SANTHA AGED 35 YEARS, D/O KUNHIKRISHNAN NAIR, RESIDING AT AVIDANALLOOR AMSOM DESOM OF KOYILANDY TALUK 2. THANKA, AGED 33 YEARS, D/O KUNHIKRISHNAN NAIR, RESIDING AT AVIDANALLOOR AMSOM DESOM OF KOYILANDY TALUK. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P NO.6121 OF 1998 IN A.S. NO. 756 OF 1998 DISMISSED 2.12.2009 SD/- HARUN-UL-RASHID, JUDGE HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 756 of 1998 ---------------------------------------- Dated this the 2nd day of December, 2009 JUDGMENT The appeal is filed by the defendant in the suit challenging the decree and judgment dated 27.2.1998 in O.S No. 169/1995. The respondents/plaintiffs filed the suit for partition of the plaint schedule property into two equal shares and to allot ½ share to themselves. The trial court after recording the evidence and hearing the parties, decreed the suit, and a preliminary decree was passed dividing the plaint schedule property into two equal shares and declared that the plaintiffs are entitled to ½ share. When the appeal is taken up for final hearing, the learned counsel for the appellant/defendant reported that the parties arrived at a settlement. In furtherance, they have drawn up a plan allotting shares to all the parties to the suit. The respondents/plaintiffs did not enter appearance before this Court. In this circumstance, this Court is not in a position to record the settlement as reported by the counsel for the appellant/defendant. If the matter is settled out of court the parties shall reduce the compromise terms into writing and shall file a compromise petition before the trial court. In that circumstance, the trial court can pass a final decree in terms of compromise. If the parties did not appear nor chosen to file a compromise petition, the trial court can treat the preliminary decree as final and can proceed to pass final decree on application. The trial court shall issue notice to all A.S No. 756 of 1998 -2- parties and fix an early date for appearance of the parties. In the result, the appeal is remitted to the trial court with a direction to pass a final decree on the basis of the observations stated above. Transmit the records immediately. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S.No. 756 of 1998 ---------------------------- JUDGMENT 2nd December, 2009