Dismissed

M.a.Yousuf v. M.a.Abdul Khadar

Kerala HC8 Sept 2021FAO (RO)/136/2018

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against a remand order. The first appellate court had remanded the matter for proper identification and location of property. The High Court held equity should be worked out at the final decree stage and allowed the remand.

What did the court decide?

Appeal dismissed. No costs. Direction to trial court to expedite disposal within four months; parties to appear on 29.09.2021.

M.a.Yousuf Vs M.a.Abdul Khadar — Partition | Kerala HC (2021)

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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 P.SOMARAJAN

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WEDNESDAY, THE 8^TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943

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FAO (RO) NO. 136 OF 2018

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AGAINST THE DECREE AND JUDGMENT DATED 08.06.2018 IN AS NO.12/2015 OF THE ADDITIONAL DISTRICT COURT NO.III, KASARAGOD

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AGAINST THE JUDGMENT AND FINAL DECREE DATED 17.09.2014 IN FDIA NO.50/06 IN OS NO.63/05 OF THE MUNSIFF COURT, KASARGOD

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APPELLANTS/RESPONDENTS 1 AND 5 IN AS/PETITIONER AND RESPONDENT NO.6 IN FDIA NO.50/06/PLAINTIFF AND 6TH DEFENDANT IN OS:

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1 M.A.YOUSUF AGED 73 YEARS, S/O. LATE ABBAS, RESIDING AT BENDICHAL, THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O THEKKIL 671 541.

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2 SUHARA AGED 68 YEARS, D/O. LATE ABBAS, RESIDING AT PADINJARA, MELPARAMBA IN KALNAD VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O KALNAD 671 317.

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BY ADVS. SRI.K.SHRIHARI RAO SMT.N.SHOBHA

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RESPONDENTS/APPELLANTS 2 TO 4/RESPONDENTS 2 TO 4/RESPONDENTS 6 TO 16/SUPPLEMENTAL APPELLANTS 5 TO 11 IN AS/RESPONDENTS 7 TO 9/RESPONDENTS 1,2,4 AND 5/SUPPLEMENTAL RESPONDENTS 10 TO 19 IN FDIA/DEFENDANTS 7 TO 9/DEFENDANTS 1,2,5 DECEASED 3RD AND 4TH DEFENDANT IN THE SUIT:

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1 M.A.ABDUL KHADER AGED 71 YEARS, S/O. LATE ABBAS, RESIDING AT KOLIKUNNU IN BARE VILLAGE OF HOSDURG TALUK,KASARAGOD DISTRICT, P.O BARE-671 319.

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2 M.A SUBAIR AGED 67 YEARS, S/O. LATE ABBAS, RESIDING AT KOLIKUNNU IN BARE VILLAGE OF HOSDURG TALUK,KASARAGOD DISTRICT, P.O BARE 671 319.

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FAO (RO) NO. 136 OF 2018

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3 M.A MUTHALI AGED 63 YEARS, S/O. LATE ABBAS, RESIDING AT KOLIKUNNU IN THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O BARE -671 319.

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4 M.A NABEESA AGED 77 YEARS, D/O. LATE ABBAS, AGRICULTURISTS, RESIDING AT BENDICHAL, THEKKIL VILLAGE,KASARAGOD TALUK AND DISTRICT, P.O THEKKIL 671 317.

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5 MOHAMMED ASHRAF AGED 54 YEARS, S/O. NABEESA, GRANDSON OF LATE ABBAS RESIDING AT BENDICHAL, THEKKIL VILLAGE,KASARAGOD TALUK AND DISTRICT, P.O THEKKIL 671 541.

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6 MAIMOONA AGED 69 YEARS, D/O. LATE ABBAS, RESIDING AT BENDICHAL, THEKKIL VILLAGE,KASARAGOD TALUK AND DISTRICT.

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7 BEEPATHUMMA AGED 79 YEARS, W/O. LATE MOIDEEN KUNHI, EYAYLA THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. THEKKIL 671 541.

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8 SURYA, AGED 55 YEARS D/O. LATE MOIDEEN KUNHI, W/O. ABDUL RAHIMAN RESIDING AT ALEENA MANZIL, MUTTUMTHALA, AJANOOR VILLAGE, HOSDURG TALUK AND KASARGOD DISTRICT. PO. KOLAVAYAL 671 531.

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9 ABDUL SATHAR AGED 53 YEARS, S/O. LATE MOIDEEN KUNHI, W/O. ABOOBACKER, RESIDING AT EYYALA,,THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. THEKKIL 671 541.

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10 SAKEENA E.M AGED 51 YEARS, D/O. LATE M.A MOIDEEN KUNHI, W/O. ABOOBACKER, RESIDING AT EYYALA,, THEKKIL VILLAGE,KASARAGOD TALUK AND DISTRICT, P.O. THEKKIL 671 541.

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FAO (RO) NO. 136 OF 2018

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11 MAJITHA E.M AGED 49 YEARS, D/O. LATE M.A MOIDEEN KUNHI, W/O. ABOOBACKER, RESIDING AT EYYALA, THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT P.O. THEKKIL 671 541.

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12 SARABI E.M AGED 47 YEARS, D/O. LATE M.A MOIDEENKUNHI, W/O. MAJEED, RESIDING AT MAZNA MANZHIL, PADOOR ROAD, CHATTANCHAL, THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O THEKKIL 671 541.

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13 ABDUL LATHEEF AGED 45 YEARS, S/O. LATE M.A MOIDEEN KUNHI, RESIDING AT EYYALA,,THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. THEKKIL 671 541.

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14 SHOUKATHALI AGED 43 YEARS, S/O. LATE M.A MOIDEEN KUNHI,RESIDING AT EYYALA,,THEKKIL VILLAGE,KASARAGOD TALUK AND DISTRICT P.O. THEKKIL 671 541.

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15 KAIRUNNESA AGED 41 YEARS, D/O. LATE M.A MOIDEEN KUNHI, W/O. HANEEFA, EYYALA,, THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. THEKKIL 671 541.

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16 ABDUL SAMAD AGED 39 YEARS, S/O. M.A MOIDEEN KUNHI, RESIDING AT EYYALA,,THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. THEKKIL 671 541.

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17 ABDUL NAZAR M.M AGED 47 YEARS, S/O. LATE M.A MOHAMMED KUNHI,RESIDING AT MAKKOD HOUSE, EYYALA, THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O, THEKKIL 671 541.

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18 RASHEENA M.M AGED 45 YEARS, D/O. LATE M.A MOHAMMED KUNHI,

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FAO (RO) NO. 136 OF 2018

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W/O. ABDULLA KUNHI, REPRESENTED BY HER GENERAL POWER OFATTORNEY HOLDER, THE 5TH APPELLANT ABDUL NAZAR, RESIDING AT MAKKAL HOUSE, EYYALA THEKKIL (P.O), KASARAGOD DISTRICT 671 319.

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19 AHAMED RAFI M. AGED 43 YEARS, S/O. LATE M.A MOHAMMED KUNHI,RESIDING AT MAKKAD, KALNAD VILLAGE, KASARAGOD TALUK AND DISTRICT,P.O KALNAD 671 317.

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20 ABBAS M.M AGED 41 YEARS, S/O. LATE M.A MOHAMMED KUNHI,RESIDING AT MAKKOD HOUSE,EYYALA, THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. THEKKIL 671 541.

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21 ABDUL NISSAR M.M AGED 38 YEARS, S/O. LATE M.A MOHAMMED KUNHI, RESIDING AT MAKKOD HOUSE, KALNAD VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O KALNAD 671 317.

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22 TAHIR M.A AGED 30 YEARS, S/O. M.A MOHAMMED KUNHI, RESIDING AT MAKKOD HOUSE, KALNAD VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O KALNAD 671 317.

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23 ABDUL ASHIF M.M AGED 28 YEARS, S/O. M.A MOHAMMED KUNHI, REPRESENTED BY HIS GENERAL POWER OFATTORNEY HOLDER, THE RESPONDENT NO. 5 ABDUL NAZAR M.M, RESIDING AT MAKKOD, THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O THEKKIL 671 319.

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R1, R2, R3, R6 & R17 BY ADVS.

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SRI.SURESH KUMAR KODOTH ANTONY BINU K.P.

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) NO. 136 OF 2018

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JUDGMENT

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The order of remand by the first appellate court is under challenge on the ground that there is no necessity to have a remand of the matter, since it is a final decree passed based on a preliminary decree, which has attained finality and conclusiveness.

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Inter alia, the learned counsel for the respondents submitted that, the remand was ordered on the ground that the Commissioner who visited the property, in furtherance of final decree application, has not identified and located the property in consonance with the boundaries made mentioned in the decree and there is a finding to that effect in the impugned order of the trial court. The question of inequity was also taken up. As such the order passed in the final decree was set aside by the first appellate court and

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FAO (RO) NO. 136 OF 2018

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remanded the matter back to the trial court for a fresh consideration, so as to identify and locate the property and to have a partition by means and bounds. Hence, the same deserves no interference. But equity shall be worked out at the final decree stage.

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The appeal fails, dismissed. No costs. There will be a direction to the trial court to expedite the disposal within a time schedule of four months from the date of appearance of the parties, for which, the parties shall appear before the trial court on 29.09.2021.

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Sd/-

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P.SOMARAJAN JUDGE

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SPV

M.a.Yousuf v. M.a.Abdul Khadar

Case brief

What is this about?

What did the court decide?

M.a.Yousuf v. M.a.Abdul Khadar

Case brief

What is this about?

What did the court decide?

What the court decided

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