High Court Kerala High Court

Muhammedali vs Yusaf on 14 October, 2008

Kerala High Court
Muhammedali vs Yusaf on 14 October, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RFA.No. 508 of 2008()


1. MUHAMMEDALI, AGED 60 YEARS,
                      ...  Petitioner

                        Vs



1. YUSAF, AGED ABOUT 54 YEARS,
                       ...       Respondent

2. AMINA, AGED ABOUT 64 YEARS,

3. NABEEZA, AGED ABOUT 56 YEARS,

                For Petitioner  :SRI.SANTHEEP ANKARATH

                For Respondent  :SRI.G.SREEKUMAR (CHELUR)

The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :14/10/2008

 O R D E R
                            P.R.RAMAN &
                  T.R.RAMACHANDRAN NAIR,JJ.
              -------------------------------
                    R.F.A.NO.508 OF 2008
             --------------------------------
               Dated this the 14th day of October, 2008

                              JUDGMENT

Raman,J.

Appellant is the lst defendant in O.S.No.59/2004 on the file of

the Sub Court, Ottapalam. It is a suit for partition. Appeal is

directed against the preliminary decree passed in the said suit. As

per the plaint averment, items 1 and 2 of the plaint schedule

properties were acquired by Ussainar under leasehold right and he

purchased jenm right also. After his death, plaintiff and defendants

are co-owners of the property. Plaintiff and defendants are entitled

to 4/48 shares each, defendants 2 and 3 are entitled to 7/48 shares

each and 4th defendant is entitled to 6/48 shares. The lst defendant

is in possession and managing the properties for and on behalf of

other co-owners. Annual income from the properties is Rs.5,000/-.

Plaintiff claimed share of profit. The 4th defendant-mother died

pending the suit. Defendants 2 and 3 remained ex parte. The lst

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defendant contested the suit. He disputed the extent of plaint

schedule item No.1. According to him, the extent is less than 20

cents and not 71 cents as claimed in the plaint. The lst defendant

also said that his personal properties are on the eastern and

southern side of the plaint schedule item No.1 and the plaintiff has

shown the extent wrongly. There is also a dispute that item No.2 is

not a property of late Ussainar and no one has any right over the

same. After framing necessary issues, the court below proceeded to

decide the case after taking evidence. Exts.A1 and A2 were

marked on the side of the plaintiff and Exts.B1 to B3 were marked

on the side of the defendants. The court below found that item No.2

is not available for partition. Neither side has filed any appeal

therefrom. As regards item No.1 the dispute was regarding the

extent of the property. But the court below relegated that issue to be

decided in the final decree proceedings. The plaint item No.1 is

ordered to be divided into 48 equal shares after identifying and

ascertaining its extent and declared that the plaintiff is entitled to 16

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RFA.No.508/2008

such shares. So long as the extent of the shares as per the

preliminary decree is concerned, there is no dispute. However, the

appellant contended that the court below should not have deferred

the consideration of the issue regarding the actual extent available

for partition to the final decree proceedings. According to him, the

eastern boundary shown in the plaint schedule is purambokku.

Therefore unless the extent available under item No.1 of the plaint

schedule is ascertained in the preliminary decree itself, it will be an

idle exercise to relegate the same to the final decree proceedings.

2. We have heard both sides.

3. It is true that the actual extent available alone is in dispute.

But going by the eastern boundary shown it is only purambokku.

Therefore there is likelihood of a dispute raised even in the matter

of identifying the property. It will not be proper to defer such an

issue for consideration to the final decree stage rather it is desirable

to decide the same now itself, after taking out a Commission by

either side. As regards the actual extent available under item

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RFA.No.508/2008

No.1, if any further evidence is required to be adduced by either

side, it may be permitted. The extent of shares as found by the

court below in the preliminary decree is confirmed. For the limited

purpose of deciding the extent available under item No.1, the

preliminary decree is set aside and the matter is remanded. In all

other respects, the preliminary decree is confirmed.

Parties to appear before the court below on 4/11/2008.

P.R.RAMAN,
Judge.

T.R.RAMACHANDRAN NAIR,
Judge.

kcv.