High Court Kerala High Court

Kamalakshy Pillai Subhadramma vs Parameswaran Pillai Vikraman … on 10 December, 2009

Kerala High Court
Kamalakshy Pillai Subhadramma vs Parameswaran Pillai Vikraman … on 10 December, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 151 of 2009()


1. KAMALAKSHY PILLAI SUBHADRAMMA,
                      ...  Petitioner

                        Vs



1. PARAMESWARAN PILLAI VIKRAMAN NAIR,
                       ...       Respondent

                For Petitioner  :SRI.L.MOHANAN

                For Respondent  :SRI.K.B.PRADEEP

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :10/12/2009

 O R D E R
                     M.N.KRISHNAN, J.
           ------------------------------------------
                  F.A.O. No. 151 OF 2009
           ------------------------------------------
       Dated this the 10th day of December, 2009

                         JUDGMENT

This is an appeal preferred against the order of remand

passed by the Subordinate Judge, Neyyattinkara in

A.S.82/2003 and 91/2003. By virtue of the said order, the

learned Sub Judge directed the matter to be gone into

afresh and it is dissatisfied with the same, the plaintiff in

the suit has come in appeal. I feel after hearing, learned

counsel for sometime and on perusal of the documents

produced by them, a decision can be taken and there is no

much controversy in the case as attempted to be projected.

Now at the outset, it has to be stated a suit is filed claiming

almost all reliefs which one can claim with respect to

different types of properties in the form of a declaration

partition, putting up a boundary etc.

2. The brief facts are ‘A’ schedule property described in

F.A.O. No. 151 OF 2009
2

the plaint having an extent of 79 cents with the building

originally belonged to one Aiyyappan Pillai who is the father

of the plaintiff and first defendant. The second defendant is

the son of the first defendant. There was a settlement

executed by the said Aiyyappan Pillai on 28.06.1967. Now

the reliefs sought for by the plaintiff in the suit is that the ‘E’

schedule property described in the plaint is settled in favour

of the plaintiff and ‘D’ schedule is settled in favour of the

defendant and therefore the plaintiff wants declaratory right

of his property over ‘E’ schedule and to put a boundary

between ‘C’ schedule and ‘E’ schedule property.

3. The other property as per settlement deed, is a

property having an extent of 12 cent with a building

described as ‘B’ schedule which is kept in common between

plaintiff and the first defendant and therefore the plaintiff

claims half right of that property with the movables in that

property which is described to the schedule of the plaint.

F.A.O. No. 151 OF 2009
3

Now the trial Court granted a decree declaring the right of

the plaintiff over ‘E’ schedule item No.2. The plaint ‘B’

schedule property and the building therein are ordered to be

partitioned into two equal shares and the plaintiff is allotted

one half share. The plaintiff is allowed to put up boundary

through ‘SF’ line. Equity is left open to be decided at the

stage of passing of the final decree. Against that decision,

the defendant and plaintiff moved the Appellate Court.

4. The Appellate Court in appeal set aside the decree

and remanded the matter to the Court below for fresh

disposal. The Appellate Court was of the view that the

Lower Court erred in trying the issues one to three together.

In some other portion of the judgment with respect to the

movables, it held that the movables also can be divided. I

have already stated the plaintiff is having half share in the

building, property and movables. So actually by virtue of

this finding the Appellate Court has ordered the division. So

F.A.O. No. 151 OF 2009
4

the sum and substance of all the finding given by both the

Courts below are (1) the plaintiff is entitled to a declaratory

right over the property described as ‘E’ schedule item No.2.

(2) The plaint ‘B’ schedule property is to be divided into

equal halves along with movables and one share is to be

allotted to the plaintiff. (3) The Court also permitted that

the separating boundary can be fixed on the line ‘SF’

marked by the commissioner. After hearing, learned

counsel for both the sides, I do not find any dispute with

respect to the right of item No.2 in ‘E’ schedule. The

commissioner also demarcated the separating line. On the

commissioner’s plan and report in this case, 23 cents of

property claimed as ‘E’ schedule item No.2 property is

marked by the commissioner as ‘A B C D E F S R’ and

the dividing line is marked as ‘SF’ line. So even if issues

number 1 to 3 are jointly tried, really there is no dispute

with respect to that portion of the finding rendered by the

Court below.

F.A.O. No. 151 OF 2009
5

5. Now is regarding the ‘B’ schedule property which

was kept in common as per the settlement deed. A

commissioner who had inspected the property has found 17

item of movables in the property as described therein.

Those movables are to be divided and just because the

name of the person is shown in the movables just on the

eve of the visit of the commissioner that too by a person

who is in occupation of the building, it will not confer any

specific right on him. Therefore, I agree with the Appellate

Court and I confirm the finding with respect to the

availability of the 17 items of movables for division. Now

the next question is with respect to the 12 cents of property

and it is marked as (P Q R S T U V W) in the commissioners

plan. Since only a very small portion with the building is

situated adjacent to the ‘E’ schedule item number 2 of the

property and when the building wherein the defendant is

situated therein inorder to avoid future complications

between the parties, it is desirable that the building with the

F.A.O. No. 151 OF 2009
6

necessary appurtenant land situated in this property is to be

allotted to the share of the second defendant and the

property shown as the souther segment of this ‘P, Q, R, S,

T, U, and W’ be set apart to the share of the plaintiff. In the

process of making such a division, it is certain that there will

be some practical difficulty to divide the property into equal

halves. Inorder to maintain the structure wherein the

second defendant is residing now and as the said house is to

be given to him, the only methodology is to divide it in such

a way and if any excess property is given to the defendant

for his convenient enjoyment of the building, the defendant

has to pay that amount towards equalization of the shares

to the plaintiff. Similarly, the building situated in the

property also has to be valued and one half of it has to be

given to the plaintiff. So also the movables are also to be

valued and one half of the same be given to the plaintiff.

6. I feel the matter has to go back not on the basis of

F.A.O. No. 151 OF 2009
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the directions given by the appellate judge but for different

purpose so that once for all there can be a resolution of the

dispute between the parties. Therefore the order or remand

passed by the appellate court is set aside but the matter is

remitted back to the trial court for the following.

7. The trial court can appoint the very same

Commissioner and attempt to divide the ‘B’ schedule

property as mentioned earlier in the judgment along with

the valuation of the property, valuation of the building and

valuation of the movables and permit the parties to raise

objections, if they want, and thereafter instead of passing a

preliminary decree, if parties agree, can pass an final

decree for which purpose stamp value has to be given. So

far as the declaratory relief with respect to ‘E’ schedule item

No.2 is concerned it is sustained.

Similarly, the finding on fixation of boundary along the

F.A.O. No. 151 OF 2009
8

‘SF’ line also is confirmed. In case a final decree is to be

passed the court shall see that the pathway is provided to

the property without sacrificing the extent very much. If

the parties have any better mode of suggestion, certainly

the Commissioner can work out in the same fashion and

submit it to the court and it can be considered. Any

observation made by me in this judgment will not debar the

trial court from considering the same. Parties are directed

to appear before the Trial court on 14.1.2010.

M.N.KRISHNAN,
JUDGE

/SS/