IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10624 of 2008(M)
1. RAMAN PANICKER THULASIDAS,
... Petitioner
Vs
1. GANGADHARA PANICKER VIJAYAN,
... Respondent
2. KANTHIMATHI LALITHA OF -DO- -DO-.
3. SUKUMARAN LAMBODARAN OF -DO- -DO-.
4. K. THANKAMMA,
5. S. JYOTHI BOSE OF -DO- -DO-.
6. T. SAROJAKUMARI OF -DO- -DO-.
7. RAJAPPAN NADAR RAFEL NADAR,
8. MARGREETE MARY VALSALA,
9. CHINNATHAMPI NADAR BENSIOR OF -DO- DO-.
10. JNANASUNDARI MARIYAPUSHPAM,
11. JNANASUNDARI SUSEELA OF -DO- -DO-.
12. JNANASUNDARI THRESSI OF -DO- -DO-.
13. JNANASUNDARI KAMALAM OF -DO- -DO-.
14. THANKAPPAN NADAR NESAYYAN OF -DO- -DO-.
15. THANKAPPAN NADAR THANKARAJAN OF -DO--DO-
16. THANKAPPAN NADAR BENNIS OF -DO- -DO-.
17. JNANASUNDARI RAJAM OF -DO--DO-.
18. THANKAPPAN NADAR BINU OF -DO- -DO-.
19. ANNAMMA THRESSIAL,
20. THRESSIAL JOYIS VIMALAMBIKA OF -DO- -DO-
21. JOYIS BIYADRIS AMBIKA OF -DO- -DO-.
22. ELIYAS PRAKASH OF -DO--DO-.
23. THRESSIAL JOYIS RAJEEVKUMARI OF -DO--DO-
24. THRESSIAL JOYIS SAJEEVKUMARI OF -DO-DO-
25. PONNUPILLA NADAR SIMON,
26. APPIYAN NADAR SATHYA DAS,
27. JOSEPH NADAR SELVAMKUTHU NADAR,
28. THAMARI GEETHA,
29. RAYAPPAN NADAR SAJEEVKUMAR @ SALU OF
30. LAZAR NADAR DEVANESAN,
31. THANKARAJAN OF -DO- -DO-.
32. APPIYAMMA NADATHI SARASU OF -DO--DO-.
For Petitioner :SRI.L.MOHANAN
For Respondent :SRI.M.R.SARIN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :26/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.10624 of 2008 - M
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Dated this the 26th day of August, 2009
JUDGMENT
The writ petition is filed seeking the following reliefs:
“i) To issue a writ of certiorari or other
appropriate writ, order or direction calling for the
records leading to Ext.P10 and set aside the same
so far as it deals with point No.2, as it is illegal and
against order of remand.
ii) To issue an writ of mandamus or other
appropriate writ, order or direction directing the
court below to pass final decree in respect of the
plaintiffs share as allotted in Ext.P1 preliminary
judgment without any further delay.”
2. Petitioner is the plaintiff in O.S.No.421 of 1981 on the
file of the Munsiff Court, Neyyattinkara. Suit is one for partition.
A preliminary decree and judgment was passed in the suit on
30.1.1988 allotting plaintiffs 97.1/8 cents as their share in the
suit property which was described as having a total extent of 3
acre and 50 cents. Some of the defendants were also allotted
separate shares which altogether took an extent of one acre
W.P.(C).No.10624 of 2008 – M
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86.1/2 cents. The preliminary decree and judgment so passed
was challenged in appeal as A.S.No.495 of 1994 by the 23rd
defendant/1st respondent in the writ petition. Defendants 24 and
25 filed an appeal in which they contended that they too are
entitled to have shares in the suit property. The appellate court
modified the preliminary decree directing that some of the
defendants including 23rd defendant who claimed right over the
suit property under some documents will be allotted shares in the
remaining unallotted area, which was taken as 69 cents. In fact
there was an error in holding that the allotted area out of 3 acres
50 cents of the suit property was 2 acres 81 cents which was
actually 2 acres 83.5/8 cents. Whatever that be, the specific
direction given by the appellate court was to give allotment to
the 23rd defendant and other defendants shares in the unallotted
area of 69 cents left behind after allotment made to the plaintiffs
and others under the preliminary decree passed on 30.1.1988.
On remission of the case, supplementary preliminary decree was
passed on 29.1.2002 allotting 21 cents to 23rd defendant, 7 cents
to 15th defendant and 8 cents to 70th defendant. 15th defendant is
W.P.(C).No.10624 of 2008 – M
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stated to be the pendente lite transferee of the 24th defendant
and 70th defendant, the legal heir of the 25th defendant. After
passing that preliminary decree some other defendants also
moved for passing separate preliminary decree for allotment of
shares in their favour. A supplementary preliminary decree was
passed by the court on 7.8.2004 allotting 3.5 cents to 14th
defendant, 2.5 cents to 16th defendant, 9.5 cents to 20th
defendant and 4.5 cents to 19th defendant. Yet another
supplementary preliminary decree was passed later on the
request of 70th defendant and by that decree dated 7.10.2004
that defendant was allotted 7 cents. Meanwhile, the plaintiffs
have moved an application for passing of a final decree. In the
final decree proceedings, a commissioner was deputed to
measure out the property with the assistance of a surveyor.
When the commissioner carried out measurement with the
assistance of a surveyor, it was found that the property has got
only a much reduced extent than what was described in the suit.
On measurement of the property it was found having an
approximate area of 2 acres 88 cents. The question then
W.P.(C).No.10624 of 2008 – M
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emerged for consideration was what should be the proportionate
reduction in respect of the shares allotted to the parties to be
made in tune with the preliminary decrees passed. Plaintiffs
contended that since they had been allotted specific area of
97.1/8 cents under the first preliminary decree passed in the suit
proportionate deductions is permissible only from the 69 cents,
unallotted area in the above decree, from which alone allotments
were made to some of the defendants by passing supplementary
preliminary decree later. In other words, plaintiffs contended
that no proportionate deduction can be made from 2 acres 81
cents which was covered by the first preliminary decree passed
by the court whereunder the plaintiff was allotted 97.1/8 cents.
The commission report disclosed that portions of the suit
property had been taken up for widening of a road. Taking note
of that aspect and also other relevant circumstance involved, the
court below came to the view that the plaintiffs and those
defendants who had been allotted shares under the first
preliminary decree dated 30.1.1988, also have to suffer the
proportionate deduction when the extent available for partition
W.P.(C).No.10624 of 2008 – M
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on measurement is found to be less. Propriety and correctness of
that order passed by the learned Munsiff, a copy of which is
produced as Ext.P10, is challenged in the writ petition invoking
the supervisory jurisdiction vested with this Court under Article
227 of the Constitution of India.
3. I heard the counsel on both sides.
4. Both sides reiterated before me the respective case
urged before the court below with the plaintiffs contending that
since allotment and division from a specified area in suit property
having been granted in their favour under the first preliminary
decree, they are not liable to suffer any proportionate deduction
when the extent of the property is found to be less and the
contesting respondents resisting that challenge against the
impugned order stating that when the extent of land available for
partition on measurement is found to be less, the plaintiffs too
have to suffer deduction irrespective of the question that the
decree in their favour provided allotment for specific extent of
land. After going through Ext.P10 order passed by the learned
Munsiff and considering the submissions made by the counsel on
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both sides, I find that so far as the plaintiffs and also the
defendants, who have been allotted shares under the first
preliminary decree dated 30.1.1988 with specific extent of land in
their favour, they are entitled to contend that the proportionate
deduction they have to suffer must be restricted to the allotted
area under that preliminary decree which is having 2 acres 81
cents. The other defendants who have got share by way of
preliminary decree passed subsequently, it is seen, allotments
are made only in the area of 69 cents which remained unallotted
after providing shares to the plaintiffs and those defendants
under the earlier preliminary decree. So much so, the question
of proportionate deduction has to be considered with reference to
allotted and unallotted area as under the first preliminary decree.
Counsel on both sides have worked out the ratio to be followed
by the above principle and it is stated that when the extent of
property comes to only 2 acres 88 cents in the place of 3 acres
50 cents in the schedule, the allotted area covered under the
preliminary decree would constitute 80.28% and the unallotted
area of 69 cents would constitute 19.72%. In accordance with
W.P.(C).No.10624 of 2008 – M
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that ratio in the extent of the property now available ie., 2 acres
88 cents which of course is provisional the commissioner has to
work out what is the area to be allotted to the parties involved in
accordance with the preliminary decrees passed. Learned
counsel on both sides submits that in accordance with the above
ratio calculation the total extent of the land allotted to the
plaintiffs and other defendants under the first preliminary decree
would come to 2 acres 31.20 cents and the rest of the land,
previously stated as 69 cents, the unallotted area, would come to
56.80 cents. With reference to the extent shown above allotment
to the parties as per the decrees passed have to be worked out.
5. Ext.P10 shall stand modified in the manner indicated
as above. Having regard to the fact that the suit was instituted
in the year 1981, I direct the learned Munsiff to complete the
final decree proceedings, as expeditiously as possible, and
dispose it of after getting report and plan from advocate
commissioner effecting division taking note of the observations
and directions made above and with reference to allotment of
shares in the decrees, and hearing both sides, at the earliest, at
W.P.(C).No.10624 of 2008 – M
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any rate, within a period of six months from the date of receipt of
a copy of this judgment.
The writ petition is disposed of as above.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-