IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 505 of 1997(E)
1. ANANDHAKRISHNAN
... Petitioner
Vs
1. MADHAVI
... Respondent
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.V.CHITAMBARESH (SR.)
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :11/12/2009
O R D E R
HARUN-UL-RASHID,J.
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A.S.NO.505 OF 1997
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DATED THIS THE 11TH DAY OF DECEMBER, 2009
JUDGMENT
Plaintiff in O.S.No.27/990 on the file of the Sub
Court, Palakkad is the appellant. The suit was filed for partition.
The court below passed a preliminary decree directing partition
of the plaint schedule properties into 10 equal shares and to allot
one out of such shares to the plaintiff and consequential reliefs
are also granted. The plaintiff claimed for partition and
separation of his share over the plaint schedule property after
adjusting 3.01 acres of land surrendered as excess land pursuant
to the ceiling proceedings. The trial court declined the prayer of
the plaintiff for consideration of 3.01 acres of excess land while
making division and passed a decree for partition and separate
possession of his share over the plaint schedule properties.
Aggrieved by the findings declining adjustment over 3.01 acres,
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this appeal is filed. The parties hereinafter referred to as plaintiff
and defendants as arrayed in the suit.
2. The plaint schedule properties originally belonged
to late Chammuni, who is the father of the plaintiff and
defendants 2 to 9. The lst defendant is the mother of the plaintiff
and other defendants. The property sought to be partitioned is
the property obtained by late Chamunni, as per Ext.A1 partition
deed of the year 1971. Plaint schedule properties are the A
schedule properties to Ext.A1 partition deed. Chamunni died
intestate on 3/7/1988.
3. The contesting defendants did not dispute the
partibility of the plaint schedule properties. They contended inter
alia that there was no joint decision or arrangement for surrender
of excess land out of the properties set apart to the share of the
plaintiff, or to compensate the plaintiff such extent surrendered
and that the entire extent of 3.01 acres of excess land was
surrendered consequent on the order passed by the Taluk Land
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Board.
4. It is not disputed that during the life time of father,
ceiling proceedings were initiated against the father and the
Taluk Land Board held that late Chamunni is liable to surrender
3.01 acres of land as excess land. The trial court rejected the
contention of the plaintiff that there was an agreement between
the sharers to compensate the area surrendered at the time of
actual division of the father’s share. The trial court rightly held
that excepting the interested testimony of the plaintiff, there was
no material placed before the court below to accept the said
contention. It is a fact that a portion of the property obtained by
the plaintiff under the partition deed was taken over by the
Government in the ceiling proceedings. The order was passed by
the Taluk Land Board directing surrender of 3.01 acres of land,
since the properties belonged to the father. For the aforesaid
reasons, the prayer of the plaintiff for pro-rata adjustment of 3.01
acres of land for division is declined.
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5. The trial court further held that the plaint schedule
properties belonged to the father and the parties to the suit are
entitled to inherit the properties. There is no serious dispute
regarding the quantum of shares. Therefore, a preliminary decree
has been passed for division of the properties into 10 equal shares
and to allot one of such share to the plaintiff. Admittedly,
defendants 1 to 9, who are also the legal heirs of the deceased
father, are also entitled to inherit and share the property equally.
In the circumstances, I do not find any reason to interfere with
the judgment and decree passed by the court below. The
contentions raised by the appellant in the said circumstances
cannot stand.
In the result, the appeal fails and accordingly
dismissed. There will be no order as to costs.
HARUN-UL-RASHID,
JUDGE.
kcv.
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