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.
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R.F.A.NO.508 OF 2008
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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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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.