IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1106 of 2009()
1. MATHAI, S/O.MATHEW,
... Petitioner
Vs
1. ANTONY, S/O.MATHEW,
... Respondent
For Petitioner :SRI.V.K.ISSAC
For Respondent :SRI.V.RAJENDRAN (PERUMBAVOOR)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :10/02/2011
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A. No.1106 OF 2009
===========================
Dated this the 10th day of February,2011
JUDGMENT
The defendant in O.S.517/2001 on the
file of Munsiff’s Court, Aluva is the
appellant. Plaintiff is the respondent.
Respondent instituted the suit for partition
and separation of his share in the plaint
schedule property. Trial court granted a
decree finding that plaint schedule property is
available for partition and it is to be divided
into two equal shares and respondent is
entitled to get one share allotted to him.
Appellant challenged the judgment before
Additional Sub Court, North Paravur in
A.S.No.27/2004. Learned Additional Sub Judge,
on reappreciation of evidence, confirmed the
decree. The Second Appeal is filed
challenging the concurrent decree and judgment.
R.S.A.1106/2009 2
2. Second appeal was admitted formulating the
following questions of law.
(i) When a plot of land is outstanding in
tenancy with a family whether the assignee
member of the family can claim exclusive right
over the same on the basis of assignment
alone?
(ii) Whether suit is maintainable for
partial partition excluding the joint property
held by the respondent?
3. Learned counsel appearing for the appellant
and respondent were heard.
4. Plaint schedule property admittedly
belongs jointly to the appellant and respondent.
The claim for partition was defended on two
grounds. Firstly it was contended that there was
a family arrangement whereunder plaint schedule
property was given exclusively to the appellant and
another co-ownership property was given to the
respondent and therefore plaint schedule property
R.S.A.1106/2009 3
is not available for partition. Secondly it was
contended that the suit is bad for partial
partition as partition of the other co-ownership
property was not sought for. Learned counsel
appearing for the respondent pointed out that as
against the other item of property, which
according to appellant is available for partition
and no partition was sought for and hence suit is
bad for partial partition, appellant subsequently
instituted O.S.307/2004 before Additional Sub
Court, North Paravur and a decree for partition was
passed, in respect of the said property. It is
also pointed out that the preliminary decree was
challenged by the respondent herein in A.S.89/2008
before Additional District Court, North Paravur
and the appeal was dismissed and the final
decree application filed by the appellant herein is
pending. A Commissioner was appointed and the
Commissioner inspected the property and in such
circumstances the contention that suit is bad for
partial partition is now no more survives. The
R.S.A.1106/2009 4
challenge against the exclusive right is also in
respect of the other property which is already
directed to be divided. Learned counsel appearing
for the appellant submitted that in view of the
decree passed in O.S.517/2001 appellant was
constrained to file O.S.307/2004 for partition of
the other item of co-ownership property and that
preliminary decree was challenged by the respondent
before Additional District Court, North Paravur
and now the final decree application is pending.
In view of the preliminary decree passed in
O.S.307/2004 on the file of Additional Sub Court,
North Paravur, the plea that present suit is bad
for partial partition does not survive.
5. Case of the appellant was that in view of
the family arrangement, plaint schedule property is
not available for partition. When in respect of
the remaining co-ownership property, which
according to appellant was allotted to the share of
the respondent under the family arrangement,a
preliminary decree was passed in O.S.307/2004 at
R.S.A.1106/2009 5
the instance of the appellant, it cannot be
contended that because of the family arrangement,
plaint schedule property is not available for
partition. When a decree for partition of the
other co-ownership property was already granted
by the trial court and confirmed by the appellate
court, appellant cannot contend that plaint
schedule property is not available for partition,
because of the said family arrangement. In such
circumstances, I find no reason to interfere with
the preliminary decree passed by Munsiff, Aluva in
O.S.517/2001 as confirmed by the Additional Sub
Judge, North Paravur in A.S.27/2004.
6. But in view of the submission at the Bar
that a decree for partition is passed in
O.S.307/2004 by Additional Sub Court, North Paravur
in respect of the remaining co-ownership property
and final decree applications are pending, for an
equitable division, it is necessary to direct
transfer of final decree application in
O.S.517/2001 also to Additional Sub Court, North
R.S.A.1106/2009 6
Paravur where the final decree application in
O.S.307/2004 is pending. Munsiff, Aluva is
directed to transfer the final decree application
in O.S.517/2001 to Additional Sub Court,North
Paravur to be disposed with the final decree
application in O.S.307/2004. While dismissing the
appeal in view of the submission of the learned
counsel appearing for the appellant that as
appellant and respondent being brothers, it is
possible to settle all the disputes, Additional
Sub Judge, North Paravur is directed to refer the
final decree applications to the to the Taluk Lok
Adalat to afford an opportunity to the parties to
settle the disputes. If the disputes cannot be
settled, learned Sub Judge shall necessarily pass
the final decree in accordance with the preliminary
decree in both the cases expeditiously.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
R.S.A.1106/2009 7
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006
