Partly allowed

*Mytheenpicha Rawther @ Siddique v. Aboobacker Rasheeda

Kerala HC8 Jan 2020FAO/140/2017

Case brief

AI extract

What is this about?

In an appeal against an order quashing a Commissioner's partition report, the High Court upheld the division of one property item north-to-south due to building layout but set aside the report for a second item. It directed a new division east-to-west to ensure road frontage and reserved final allotment of buildings for the trial court.

What did the court decide?

Partition reaffirmed for Item No.1; set aside for Item No.2 to be divided east-west; directions for future allotment of buildings based on trial evidence.

*Mytheenpicha Rawther @ Siddique Vs Aboobacker Rasheeda — Partition | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941

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FAO.No.140 OF 2017

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AGAINST THE JUDGMENT IN AS 19/2016 DATED 05-01-2017 OF SUB COURT AT PUNALUR, KOLLAM (AS NO.29 OF 2014 OF THE SUB COURT, KOTTARAKKARA)

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AGAINST THE ORDER IN I.A.NO.218 OF 1993 IN O.S.NO.83 OF 1981 OF THE MUNSIFF COURT, PUNALUR, DATED 19.03.2014

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APPELLANTS (RESPONDENTS 1&2):

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MYTHEENPICHA RAWTHER @ SIDDIQUE. S/O MYTHEEN BASHA RAWTHER, MAVILA PURAYIDAM, MAHCHALLOOR MURI, PATHANAPURAM TALUK (DIED LR'S IMPLEADED)

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MOHAMMED SAINULABUDEEN @ PODIYAN, S/O MYTHEEN BASHA RAWTHER, KANJIRAMVILA THEKKETHIL, MANCHALLOOR MURI, PATHANAPURAM TALUK

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NISHA, AGED 39 YEARS, D/O MYTHEENPICHA RAWTHER @ SIDDIQUE, MAVILA PURAYIDAM, MAHCHALLOOR MURI, PATHANAPURAM TALUK

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NISHAM, AGED 36 YEARS, S/O MYTHEENPICHA RAWTHER @ SIDDIQUE, MAVILA PURAYIDAM, MAHCHALLOOR MURI, PATHANAPURAM TALUK

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NISHAD, AGED 30 YEARS, S/O MYTHEENPICHA RAWTHER @ SIDDIQUE, MAVILA PURAYIDAM, MAHCHALLOOR MURI, PATHANAPURAM TALUK (ADDITIONAL APPELLANTS 3 TO 5 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 1ST APPELLANT AS PER ORDER DATED 04.04.2019 IN I.A.NO.752/2017)

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BY ADV. SRI.T.M.ABDUL LATHEEF

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RESPONDENTS (APPELLANTS/RESPONDENTS 3&4):

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1 ABOOBAKER RASHEEDA, MAVILA PURAYIDAM, MANCHALLOOR MURI, PATHANAPURAM 689 695

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2 ABOOBAKER SHIBU, MAVILA PURAYIDAM, MANCHALLOOR MURI, PATHANAPURAM 689 695

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3 ABOOBAKER SHEEJA @ SHIJU, MAVILA PURAYIDAM, MANCHALLOOR MURI, PATHANAPURAM 689 695

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4 ABOOBAKER SHEMINA, MAVILA PURAYIDAM, MANCHALLOOR MURI, PATHANAPURAM 689 695

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5 MUHAMMED BEEV SAITHUL BEEVI, RESIDING AT MOOLAKKADAYIL, MANCHALLOOR MURI, PATHANAPURAM 689 695

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6 SULAIMAN RAWTHER, RESIDING AT MOOLAKKADAYIL, MANCHALLOOR MURI, PATHANAPURAM 689 695

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R1,R2 & R4 BY ADVS. SRI.AMAL KASHA SRI.T.B.HOOD SMT.M.ISHA R1-4 BY ADV. SRI.T.P.SAJAN R1-4 BY ADV. SRI.M.MOHAMED NAVAZ

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

The plaintiff in O.S.No.83/1981, on the

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files of the Munsiff’s Court, Punalur, has filed this appeal against the judgment of the Sub Court, Punalur in A.S.No.19/2016 preferred by defendants 5 to 8.

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The records show that A.S.No.19/2016

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was filed by defendants 5 to 8 against the final decree passed by the Munsiff’s Court, Punalur in I.A.No.218/93 in O.S.No.83/1981, whereby, the plaint schedule properties were allotted on the basis of the report of the Commissioner, a copy of which has been marked on record as Ext.C3. The final decree was challenged by defendants 5 to 8 on various grounds including that the areas allotted to them did not have sufficient road frontage; that both the residential buildings in the plaint schedule properties had been allotted to

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the plaintiffs; that valuation of the

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properties and the shop rooms allotted to the

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plaintiffs have not been properly made; that

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the plaint schedule properties were not separated by metes and bounds; that their objections to the Commission Report were not considered and in fact, dismissed by the Trial

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Court without citing any reasons; that they have been allotted plots in the possession of transferees; and finally asserting that had the plaint schedule properties been divided from east to west, rather than north to south, as

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has been done now, both sides would have obtained proper road frontage and value for

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their respective allotments.

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Sub Court, Punalur, allowed

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A.S.No.19/2016 filed by defendants 5 to 8,

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finding that the allotment made by the

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Commissioner through Ext.C3 report was

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inequitable; and consequently, remanded the

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matter to the Trial Court for fresh

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consideration of the final decree application,

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including by considering the division of the plaint schedule properties from east to west rather than from north to south, as has been done now. It is this decision which is under challenge in this Appeal at the hands of the plaintiffs.

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learned counsel for the appellants and Sri.T.P.Sajan, learned counsel appearing for

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the respondents.

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marked, the suit was laid on file by the

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plaintiffs seeking partition of two items of properties, first of which was shown to be 33 cents, while the second was shown to be 50

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cents in area. Various stages of litigation

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have been traversed by the parties in the last

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more than 30 years, when this litigation has

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been pending, but suffice to say that a

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preliminary decree was issued by the Trial Court on 31.03.1992, allotting 53/88 shares in favour of the plaintiffs. Subsequent to this preliminary decree, which is conceded by both sides to have now become final, the Trial Court appointed a Commissioner-on the application for final decree made by the plaintiffs-who visited the properties and divided the same into four plots. The Commissioner, as is luculent from Ext.C3 report, divided plaint schedule Item No.1 as plots 1 and 2; while plaint schedule Item No.2 property was divided as plots 3 and 4. He recommended that Item Nos.1 and 3 be

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allotted to the plaintiffs and Item Nos.2 and 4 to the defendants. Even though, as seen above,

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the defendants filed I.A.No.2733/2012 to have

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the Commissioner’s Report set aside, the Trial Court dismissed the same holding that no more

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evidence is required, subsequent to which, the defendants filed objections as I.A.No.21/2014,

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placing on record their contest against the

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report of the Commissioner. However, it is clear from the records that I.A.No.21/2014 was

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not ordered specifically and that it was closed after the final decree had been delivered by the Trial Court.

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The lower Appellate Court, namely the

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Sub Court, Punalur, has, in the impugned

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judgment, found that defendants have made out sufficient cause for a reconsideration of

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allotment by the court below, particularly because there was no proper metes and bounds division of the properties. The Court has also

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found that, by dividing the properties from north to south, as has been done in Ext.C3, plot NO.4 has lost its entire road frontage and that it can obtain access only through plot

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No.2. The Appellate Court went on to hold that

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the action of the Trial Court in not

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considering I.A.21/2014 was in error and

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therefore, that the defendants have been divested of the statutory rights to have their objections against the Commissioner’s report heard and disposed of in terms of law.

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In such manner, the impugned judgment has been issued by the Sub Court, setting aside Ext.C3 plan; with a consequential direction to the Trial Court to appoint a Commissioner and Surveyor so as to allot plots in the east-west direction, thus ensuring road frontage to both sides. Certain corollary directions have also been issued with respect to valuation of the plaint schedule properties and further that the Commissioner shall allot the plots with regular shape, so as to enable the parties to use it profitably.

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Sri.T.M.Abdul Latheef, learned counsel

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for the appellants, pointedly referring to Ext.C3 report of the Commissioner, submits that plaint schedule No.1 property cannot be divided

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from east to west since major portion of the property is occupied by buildings, including residential ones. He says that as is clear from the said report and the sketch appended to it, that property can be divided only from north to south because otherwise, the entire buildings will have to be allotted to one share which will create complete inequity. As regards

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plaint Item No.2 is concerned, he says that his clients have no objection in the same being divided from east to west, so that both the

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plots thereafter will obtain sufficient road frontage. He added that the question regarding

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the residential houses can be left open to be decided by the Trial Court, depending upon the evidence, asserting that some of the shop rooms in plaint Item 1 property have been sold by the defendants; and therefore, that those will also have to be allotted to their share, as has been now correctly done by the Trial Court. He thus

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prayed that this appeal be allowed and that the directions in the impugned judgment be vacated.

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Sri.T.P.Sajan, learned counsel for the defendants, in reply, submitted that the impugned judgment does not suffer from any error because, if the plaint schedule properties are divided from east to west, both sides would obtain plots having road frontage and would, therefore, be useful for commercial or residential use in future. He says that since Ext.C3 report has been finalised by the Commissioner without adverting to this crucial

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aspect, his clients had preferred an application to have the same set aside before the Trial Court, followed by their objections to the same, but that the said Court did not consider either of them, thus depriving them of their statutory rights to contest the worth of

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the said report. He, therefore, prays that this appeal be dismissed and the Trial Court be

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directed to complete the processes as ordered by the First Appellate Court.

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The above being so, on the question of

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division of plaint schedule Item No.1 property, to a pointed query from this Court, Sri. T.P.Sajan conceded that if the same is divided from east to west, it is possible that all the buildings therein will have to be allotted to one share. He then admitted that separation of plaint Item No.1 property from north to south, as has been done in Ext.C3, divides the buildings also into two and offers a road frontage to both portions. He, therefore, admitted that, as regards plaint schedule Item No.1 property is concerned, the division, as now ordered through Ext.C3, cannot be contested by his clients, however, adding that their main

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grievance is that the residential houses in

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plaint Item No.1 as well as that in Item No.2 are presently allotted to the share of the

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plaintiffs. He says that these issues will certainly have to gain the attention of the Trial Court.

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I have considered the afore submissions and have carefully examined the materials available on record, including the documents, testimony of parties and the various reports of the Advocate Commissioner.

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The disputes between the two sides, as is clear from the afore narrative, are in a rather small compass. The defendants are aggrieved by the division of the plaint schedule properties from north to south, on the specific allegation that by doing so, the road frontage to the plots so divided are lost to them. However, as is perspicuous from Ext.C3, the division of plaint schedule Item No.1 can be done only from north to south since, going by the lie and nature of the buildings therein, a division in the east to west direction would

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virtually render the entire buildings to one share. I am, therefore, of the view that allotment of shares regarding plaint Item No.1, as ordered by the Trial Court based on Ext.C3, cannot be found to be in error, since the plaintiffs are major shareholders with 55/88 shares allotted to them in the preliminary decree and since both the plots, namely 1 and 2 in Ext.C3, have sufficient road frontage.

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That having been said, coming to plaint Item No.2 property, I find substantial force in the submissions of Sri.T.P.Sajan that present division from north to south in Ext.C3 causes great inequity to his clients. This is because, admittedly, plot No.4, which is part of plaint Item No.2 property, does not obtain any road frontage at all and that access to it is possible only through one of the other plots. I do not deem it necessary to labour much on this issue because Sri.T.M.Abdul Latheef, learned

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counsel for the appellants, also concedes that

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his clients have no objection in plaint Item No.2 property being divided from east to west, so that both sides would then obtain road frontage sufficiently.

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That leaves this Court to the question

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as to whether the residential buildings in the plaint schedule properties are to be allotted to either side as per their entitlement. However, this is not an issue which can be affirmatively stated by this Court while acting

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in an appeal from the impugned judgment of the Sub Court, since it will have to be left to the Trial Court to decide depending upon the evidence to be led by the parties as to their entitlement.

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That being so, as regards the shop

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rooms in plaint Item No.1 property are

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concerned, the Lower Appellate Court has

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entered into a finding that there is no

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evidence on record to show that sale of some of

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them was made by the plaintiffs or by the defendants. Though Sri.T.M.Abdul Latheef, learned counsel for the appellants, submits that this finding is in error and that there is sufficient evidence to show that the shop rooms

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were, in fact, sold by the defendants and not by the appellants; and consequently that same will have to be allotted to their shares, this is also an issue, which, in my view, will have to gain the attention of the Trial Court, based on the evidence and materials already available or are to be let in by the parties as per law.

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Resultantly, I am of the view that this Court will be justified in allowing this Appeal in part by confirming the division of plaint Item No.1 property in the manner as has been done in Ext.C3 report; but setting aside the said report to the extent to which it relates to plaint schedule Item No.2 property; with a

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consequential direction to the Trial Court to

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appoint a Commissioner and divide the same into

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two shares in the east-west direction, following due procedure. Once plaint Item No.2 property is so divided and a report presented before the Court below, the issues as to the allotment of the residential building therein,

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as also the allotment of the shop rooms, including which have been sold, in plaint Item No.1 property will be considered by the said Court leading to an appropriate final decree, after adjustment of the dialectical entitlement of the parties, based on the documents produced

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and the evidence to be led by them.

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The impugned judgment of the Sub Court,

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Punalur will stand modified to the afore extent and the Trial Court is directed to dispose of

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the final decree application, leading to a

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final decree, as expeditiously as is possible, but not later than eight months from the date

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of receipt of a copy of this judgment .

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In view of the singular factual

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circumstances and factors noticed, I deem it appropriate not to make any order as to costs and to leave the parties to suffer their respective costs in this Appeal.

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This Appeal is thus ordered. There will be

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no orders as to costs.

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Sd/-

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DEVAN RAMACHANDRAN

JUDGE

FAO 140/17

APPENDIX

PETITIONER'S EXHIBITS: ANNEXURE AI A TRUE COPY OF THE DOCUMENT NO.278/2002 DATED 13.03.2002 OF SRO, PATHANAPURAM

*Mytheenpicha Rawther @ Siddique v. Aboobacker Rasheeda

Case brief

What is this about?

What did the court decide?

*Mytheenpicha Rawther @ Siddique v. Aboobacker Rasheeda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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