In a second appeal regarding civil revision in a partition suit, the High Court found no substantial question of law as the appellant could not locate missing land extent, and the original plaintiff had satisfied himself with the allotted share, ruling against interference.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
FRIDAY, THE 16TH MARCH 2007 / 25TH PHALGUNA 1928
RSA.No. 881 of 2006(E)
---------------------A.S.20/97 OF III ADDL.DISTRICT COURT, THIRUVANANTHAPURAM O.S.406/75 OF II ADDL. MUNSIFF COURT, TRIVANDRUM
APPELLANTS/(APPELLANTS 3,4 AND 28TH RESPONDENT
BY ADV. SRI.G.S.REGHUNATH
RESPONDENTS:(RESPONDENTS 2 TO 27 & 2ND ADDL.APPELLANT/ DEFENDANTS 1,2,4 TO 9)
VEEDU, PEYAD.
R18 BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR ADV.HARISH HARI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/03/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER ON I.A.NO. 2679/06 IN RSA 881/06
16/3/2007
DISMISSED
SD/-M.SASIDHARAN NAMBIAR,JUDGE.
//True copy//
PA to Judge.
M.SASIDHARAN NAMBIAR,J.
R.S.A.NO. 881 OF 2006
Dated 16th March 2007
J U D G M E N T
Legal heirs of 3rd defendant in O.S.406/75 on the file of Additional Munsiff court,
Thiruvananthapuram are appellants. They were impleaded as appellants 3, 4 and 28th r espondent in the first appeal on the death of 3rd defendant who was the appellant in A.S.20/97. First respondent in the appeal was the plaintiff in the suit and on his death respondents 10 to 16 were impleaded as legal heirs. Suit was filed for partition of 1/7th share of plaintiff. Preliminary decree was passed on 12/9/1977. Thereafter final decree application I.A.14314/77 was filed for passing a final decree. Commission was appointed and Commissioner submitted Exts.C1 report and C2 plan demarcating properties and dividing it in accordance with preliminary decree. Learned Munsiff passed a final decree on 7/6/1982 which was challenged before Sub court, Thiruvananthapuram in A.S.114/83. Learned Sub Judge set aside the final decree holding
RSA 881/06
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that objections filed by appellants and plaintiff were not considered by Munsiff before passing the final decree. Learned Munsiff was directed to consider the objections and disposed the final decree afresh. Learned Munsiff thereafter accepted the report and plan and passed final decree on 10/9/1991 allotting plot PQVBUR measuring 17 cents and plot TFGHS measuring 13.428 cents as demarcated by the Commissioner in Ext.C2 plan and plot ABEF measuring 1 cent as in survey No.292/23 as demarcated in Ext.C2 plan. Final decree was challenged before District court, Thiruvananthapuram in A.S.20/97. Learned Additional District Judge after reappreciation of case confirmed final decree and dismissed appeal. It is challenged in the second appeal.
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unsustainable. It was argued that when total extent as per the title deed is 2.75 acres, what was found by Commissioner was only 2.16 acres and balance extent was 59 cents was not located and therefore courts below should not have accepted the report and plan. It was also argued that Commissioner while dividing the properties as provided a way having an extent of 3 cents, which should not have been done as a road is available to the property and therefore final decree is to be set aside.
appellants, I do not find any substantial question of law involved in the appeal. As rightly found by learned District Judge, Commissioner has found out that though extent shown in the title deed was 2.75 acres, extent now available is only 2.16 acres Commissioner could not locate the balance 59 cents. As per final decree only share of plaintiff was separated and allotted. Entire balance extent is now available with the defendants including appellants. Therefore, if extent of property available for division is 2.75 acres and not 2.16 acres, extent of the property now allotted to plaintiff is less and it should have been more and if so, the sufferer is actually the plaintiff. As found by learned District
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Judge, plaintiff, because of his age, decided to forgo the right if any, over more extent and was satisfied with the extent allotted so that he could enjoy the property before his death which ultimately did not materialise. In such circumstances, I do not find any reason to interfere with allotment made by courts below.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE.
uj.
3 issues framed by the court
Whether the final decree allotting property after recognizing missing extent in the final decree be set aside on the grounds that it was unsustainable.
Whether the Court below should have interfered with the allotment made in the final decree where the plaintiff forgoed the right to a larger extent available at his death which ultimately did not mate
Whether any substantial question of law is involved in the appeal challenging the final decree passed in a partition suit.
Vasanthi, D/O.Kochukrishnan Nair & Others
Mullan Nadar Raman Nadar & Others
M.Sasidaran Nambiar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
