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.
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F.A.O. No. 151 OF 2009
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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
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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.
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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
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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.
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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
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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
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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
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‘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/