Regular second appeals against concurrent final decree and appellate judgments in a partition suit. The court held that the commissioner's report and plan properly identified properties excluded from partition, and dismissed the appeals.
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.
0IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 1ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945
RSA NO. 679 OF 2021
AGAINST THE JUDGMENT IN AS 31/2019 OF ADDITIONAL DISTRICT COURT-II, MANJERI AND COMMON ORDER AND FINAL DECREE DATED 10.04.2019 IN
F.D.I.A.NO.941/2016 IN OS 105/2006 OF SUB COURT, MANJERI
APPELLANT/APPELLANT/RESPONDENT NO.2:
1 PARAYANTHODI ABDUL AZEEZ @ AZEEZ, AGED 69 YEARS
S/O. KUNHAHAMMED, PARAYANTHODI HOUSE, NILAMBUR AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. (DIED)(LEGAL HEIRS IMPLEADED)
ADDL.A2 RAHMATHUNNISA
AGED 60 YEARS W/O. LATE PARAYANTHODI ABDUL AZEEZ @ AZEEZ, PARAYANTHODI HOUSE, NILAMBUR AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT.
ADDL.A3 AHAMMEDKUTTY AGED 43 YEARS S/O. LATE PARAYANTHODI ABDUL AZEEZ @ AZEEZ, PARAYANTHODI HOUSE, NILAMBUR AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT.
ADDL.A4 ANULA
AGED 39 YEARS D/O. LATE PARAYANTHODI ABDUL AZEEZ @ AZEEZ, PARAYANTHODI HOUSE, NILAMBUR AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. (LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.A2 TO A4 AS PER ORDER DATED 14.06.2023 IN IA.1/2022)
BY ADVS. N.M.MADHU C.S.RAJANI
RSA No.679 of 2021 & RSA No.64 of 2022
2
RESPONDENTS/RESPONDENTS/PETITIONER & RESPONDENT NO.1 & 3 TO 22:
AGED 71 YEARS W/O. KAPPIL ABDULLA, KAPPIL HOUSE, RANDUPUZHAMUKKU ROAD, MARUTHA P. O., VAZHIKKADAVU AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 333.
AGED 73 YEARS W/O. KAPPIL KUNHIMOIDU, KAPPIL HOUSE, MAYYAMTHANNI ROAD, CHANDAKUNNU, NILAMBUR AMSOM DESOM AND POST,
NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
AGED 66 YEARS
S/O. KUNHAYAMU, PARAYANTHODI HOUSE, KALATHINKADAVU, NILAMBUR AMSOM DESOM AND POST, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
5 PARAYANTHODI MARIYAKUTTY, AGED 87 YEARS W/O. UNNIMOTHI, PARAYANTHODIKA HOUSE, KANHIRATHINGAL, MARUTHA P. O.,
VAZHIKKADAVU AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 333. (DIED) (LRS RECORDED)(IT IS RECORDED THAT RESPONDENTS 23 TO 26 ARE THE LEGAL HEIRS OF DECEASED R4 AND RESPONDENTS 6 TO 8 ARE THE LEGAL HEIRS OF DECEASED R5 AS PER ORDER DATED 25.08.2023 IN RSA.679/2021 VIDE STATEMENT DATED 18.08.2023)
6 PARAYANTHODI SAINABA AGED 67 YEARS D/O. UNNIMOTHI, PARAYANTHODIKA HOUSE, KANHIRATHINGAL, MARUTHA P. O.,
RSA No.679 of 2021 & RSA No.64 of 2022
3
VAZHIKKADAVU AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 333.
AGED 62 YEARS
S/O. UNNIMOTHI, PARAYANTHODIKA HOUSE, KANHIRATHINGAL, MARUTHA P. O., VAZHIKKADAVU AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 333.
9 PATHUMMAKUTTY
AGED 80 YEARS W/O. ABOOBACKER, SHAHINI MANZIL, SHAHINA MANZIL, KALATHINKADAVU, NILAMBUR AMSOM DESOM AND POST, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
10 PARAYANTHODI AYISHA AGED 52 YEARS
D/O. ABOOBACKER, SHAHINI MANZIL, KALATHINKADAVU, NILAMBUR AMSOM DESOM AND POST, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
11 PARAYANTHODI AMINA AGED 56 YEARS W/O. RAUF, PILATHODAN HOUSE, PONGALLUR P. O., MAMPAD AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT - 676 542.
12 PARAYANTHODI KADEESA AGED 79 YEARS W/O. KARANGADAN MOHAMMEDALI, KARANGADAN HOUSE, CHAKKAPPADAM, MARUTHA AMSOM DESOM AND POST, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 333.
RSA No.679 of 2021 & RSA No.64 of 2022
4
| 13 | FATHI AGED W/O. MARUT MALAP |
MA 58 YEARS PARAYANTHODI HA HA AMSOM DESOM PURAM DISTRICT |
MZA, KANHIRATHINGAL, AND POST, NILAMBUR TALUK, - 679 333. |
|---|---|---|---|
| 14 | PARAY AGED S/O. MARUT |
ANTHODI SUNEER 42 YEARS PARAYANTHODIKA HA AMSOM DESOM |
HAMZA, KANHIRATHINGAL, AND POST, NILAMBUR TALUK, |
| MALAP | PURAM DISTRICT | - 679 333. | |
| 15 | PARAY AGED |
ANTHODI ABID 40 YEARS |
|
| S/O. MARUT MALAP |
PARAYANTHODIKA HA AMSOM DESOM PURAM DISTRICT |
HAMZA, KANHIRATHINGAL, AND POST, NILAMBUR TALUK, - 679 333. |
|
| 16 | PARAY AGED S/O. MARUT |
ANTHODI JAFER 38 YEARS PARAYANTHODIKA HA AMSOM DESOM |
HAMZA, KANHIRATHINGAL, AND POST, NILAMBUR TALUK, |
| MALAP | PURAM DISTRICT | - 679 333. | |
| 17 | PARAY | ANTHODI SHAMEER | |
| AGED | 35 YEARS | ||
| S/O. MARUT |
PARAYANTHODIKA HA AMSOM DESOM |
HAMZA, KANHIRATHINGAL, AND POST, NILAMBUR TALUK, |
|
| MALAP | PURAM DISTRICT | - 679 333. | |
| 18 | PARAY AGED |
ANTHODI NISHAD 33 YEARS |
|
| S/O. MARUT |
PARAYANTHODIKA HA AMSOM DESOM |
HAMZA, KANHIRATHINGAL, AND POST, NILAMBUR TALUK, |
|
| MALAP | PURAM DISTRICT | - 679 333. | |
| 19 | K. V. AGED W/O. |
THANOOJA 55 YEARS KAKKODAN MUSTHA |
FA, SHAHINI MANZIL, |
| KALAT | HINKADAVU, NILA | MBUR AMSOM DESOM AND POST, | |
| NILAM | BUR TALUK, MALA | PPURAM DISTRICT - 679 329. |
RSA No.679 of 2021 & RSA No.64 of 2022
5
22 ANWAR SADATH
AGED 48 YEARS S/O. K. V. MOHAMMEDALI, SHAHINI MANZIL, KALATHINKADAVU, NILAMBUR AMSOM DESOM AND POST, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
23 ILMUNNISSA
AGED 66 YEARS
D/O. ABDURAHIMAN, W/O. MOHAMMED, MUSLIYARAKATH HOUSE, CHARAKULAM, CHANDAKUNNU P. O., NILAMBUR AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
24 SAKKEER HUSSAIN AGED 63 YEARS S/O. ABDURAHIMAN, THAHIR HOUSE, POOCHAKUTHU, JILLA KRISHI THOTTAM, CHUNGATHRA AMSOM DESOM, NILAMBUR TALUK - 679 334.
25 SAINABA AGED 61 YEARS D/O. PILAKKALKANDI UMMER, PRAYATHODI HOUSE, PADIKUNNU, JANATHAPADI, NILAMBUR AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
26 MUHAMMEDALI AGED 58 YEARS S/O. PILAKKALKANDI UMMER, PILAKKALKANDI HOUSE, KALARIKUNNU,
RSA No.679 of 2021 & RSA No.64 of 2022
6
MANALODI, NILAMBUR AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
BY ADV M.A.ZOHRA FOR R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2023 ALONG WITH RSA NO.64/2022 AND THE COURT ON 01.12.2023 DELIVERED THE FOLLOWING:
RSA No.679 of 2021 & RSA No.64 of 2022
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 1ST DAY OF DECEMBER 2023/10TH AGRAHAYANA, 1945
RSA NO. 64 OF 2022
AGAINST THE JUDGMENT IN AS 32/2019 OF ADDITIONAL DISTRICT
COURT - II, MANJERI
FDIA 941/2016 IN OS 105/2006 & I A 816/2018 IN
FDIA.941/2016 OF SUB COURT, MANJERI
APPELLANT/APPELLANT/THIRD RESPONDENT:
PARAYANTHODI KUNHALIKUTTY @ KUNHALI AGED 63 YEARS, S/O.KUNHAHAMMED PARAYANTHODI HOUSE, NILAMBUR AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT PIN - 682021
BY ADVS. Jamsheed Hafiz K.K.NESNA(K/302/2014) T.S.SREEKUTTY(K/556/2016) ALONG WITH SR.ADV.T.KRISHNANUNNI
RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1, 2 & 4
TO 22:
1 PARAYANTHODI KUNHAYISHA AGED 69 YEARS, S/O.KUNHAHAMMED, W/O.KAPPIL ABDULLA
KAPPIL HOUSE, MARUTHA P.O.,VAZHIKADAVU AMSOM DESOM,NILAMBUR TALUK, MALAPPURAM DISTRICT MALAPPURAM, PIN - 682021
2 PARAYANTHODI NAFEESA AGED 71 YEARS, D/O.KUNHAHAMMED, W/O.KAPPIL KUNHAHAMMED
RSA No.679 of 2021 & RSA No.64 of 2022
8
CHANDAKUNNU, NILAMBUR AMSOM DESOM,NILAMBUR TALUK, MALAPPURAM DISTRICT MALAPPURAM, PIN – 682 021
4 PARAYANTHODI PATHUKUTTY AGED 80 YEARS, D/O.KUNHAHAMMED, W/O.PILAKANDI UMMER PARAYANTHODI HOUSE, PADIKUNNU , NILAMBUR AMSOM,,NILAMBUR TALUK, MALAPPURAM DISTRICT (DIED ON 06.08.2020) PIN - 682021
5 MARIYAKUTTY,(DIED) (LEGAL HEIRS RECORDED) AGED 85 YEARS, W/O.PARAYANTHODI UNNIMOTHI, PARAYANTHODI HOUSE, KANHIRATHINGAL ,MARUTHA P.O.,VAZHIKADAVU AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT PIN - 682021
6 PARAYANTHODI SAINABA AGED 65 YEARS, D/O.UNNIMOTHI MARUTHA P.O.,VAZHIKADAVU AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT MALAPPURAM, PIN - 682021
7 PARAYANTHODI KUNHAHAMMED AGED 63 YEARS, S/O.UNNIMOTHI PARAYANTHODI HOUSE, KANHIRATHINGAL , MARUTHA P.O., VAZHIKADAVU AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT
8 PARAYANTHODI HUSSAIN AGED 60 YEARS PARAYANTHODI HOUSE, KANHIRATHINGAL , MARUTHA P.O., VAZHIKADAVU AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT (RESPONDENTS 6 TO 8 ARE RECORDED AS THE LEGAL
RSA No.679 of 2021 & RSA No.64 of 2022
9
HEIRS OF THE DECEASED 5TH RESPONDENT AS PER ORDER DATED 25.08.2023 IN MEMO DATED 21.08.2023)
9 PATHUMMAKUTTY AGED 69 YEARS, W/O.PARAYANTHODI ABOOBACKER SHAHINA MANZIL, KALATHINKADAVU, NILAMBUR AMSOM , NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN - 682021
10 PARAYANTHODI AYISSA AGED 50 YEARS, D/O.ABOOBACKER, W/O.MOHAMMEDALI MODAPOIKA ,EDAKKARA AMSOM , NILAMBUR TALUK,PRESENTLY RESIDING AT SHAHINA MANZIL, KALATHINKADAVU, NILAMBUR AMSOM , NILAMBUR TALUK, MALAPPURAM DISTRICT-682 021
11 PARAYANTHODI AMINA
AGED 54 YEARS, D/O.ABOOBAKKER, W/O.RAUF PILATHOTTATHIL HOUSE, PONGALLUR P.O., MAMPAD AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN – 682 021
12 PARAYANTHODI KADEESA AGED 77 YEARS, D/O.KUNHAHAMMED, W/O.KARANGADAN MOHAMMADALI, PARAYANTHODI HOUSE, MARUTHA P.O.,VAZHIKADAVU AMSOM , NILAMBUR TALUK, MALAPPURAM DISTRICT-682 021
13 FATHIMA AGED 56 YEARS, W/O.PARAYANTHODI HAMZA PARAYANTHODI HOUSE, KANHIRATHINGAL , MARUTHA P.O., VAZHIKADAVU AMSOM,NILAMBUR TALUK, MALAPPURAM DISTRICT-682 021
14 PARAYANTHODI SUNEER AGED 40 YEARS, S/O.HAMZA PARAYANTHODI HOUSE, PARAYANTHODI HOUSE, KANHIRATHINGAL ,MARUTHA P.O., VAZHIKADAVU AMSOM,NILAMBUR TALUK, MALAPPURAM DISTRICT-682021
RSA No.679 of 2021 & RSA No.64 of 2022
10
15 PARAYANTHODI ABID AGED 38 YEARS, S/O.HAMZA KUNHAHAMMED PARAYANTHODI HOUSE, KANHIRATHINGAL , MARUTHA P.O., VAZHIKADAVU AMSOM,NILAMBUR TALUK, MALAPPURAM DISTRICT-682 021
16 PARAYANTHODI JAFER AGED 36 YEARS, S/O.HAMZA PARAYANTHODI HOUSE, KANHIRATHINGAL ,MARUTHA P.O., VAZHIKADAVU AMSOM,NILAMBUR TALUK, MALAPPURAM DISTRICT-682 021
17 PARAYANTHODI SHAMEER AGED 33 YEARS, S/O.HAMZA PARAYANTHODI HOUSE, KANHIRATHINGAL , MARUTHA P.O., VAZHIKADAVU AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT-682021
18 PARAYANTHODI NISHAD AGED 31 YEARS, S/O.HAMZA PARAYANTHODI HOUSE, KANHIRATHINGAL , MARUTHA AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT-682021
19 THANOOJA
AGED 53 YEARS, D/O.PARAYANTHODI AMINAKUTTY, W/O.KAKKODAN MUSTHAFA SHAHINA MANZIL, KALATHINKADAVU, NILAMBUR AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT-682021
20 SHAHINA
AGED 51 YEARS, D/O.PARAYANTHODI KUNHAYISHA, W/O.ERANHIKAL HANEEFA SHAHINA MANZIL, KALATHINKADAVU, NILAMBUR AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT-682 021
21 ANWAR SADATH AGED 46 YEARS, S/O.PARAYANTHODI AMINAKUTTY SHAHINA MANZIL, KALATHINKADAVU, NILAMBUR AMSOM DESOM, NILAMBUR TALUK,
11
RSA No.679 of 2021 & RSA No.64 of 2022
MALAPPURAM DISTRICT-682021
23 MUHAMMADALI PARAYANTHODI KUNHALIKUTTY W/O.PILAKKALKANDI UMMER PILAKKALKANDI HOUSE, KALARIKUNNU, MANALODI, NILAMBUR AMSOM AND POST, NILAMBUR TALUK, MALAPPURAM DISTRICT-682021
24 ILMUNNISSA, D/O.ABDUL RAHIMAN MUSLIYARAKATHU HOUSE, CHARAMKULAM, CHANDAKUNNU P.O., NILAMBUR AMSOM, NILAMBUR TALUK , MALAPPURAM DISTRICT-682021
25 SAKKEER HUSSAIN S/O.ABDU RAHIMAN THAHIR HOUSE, POOCHAKUTHU , CHUNGATHARA AMSOM CHUNGATHARA P.O., NILAMBUR TALUK MALAPPURAM DISTRICT-682021
ADDL.R26 RAHAMATHUNNISA
AGED 60 YEARS
W/O LATE PARAYANTHODI ABDUL AZEEZ AIIAS AZEEZ PARAYANTHODI HOUSE, NILAMBUR AMSOM DESOM NILAMBUR TALUK , MALAPPURAM DISTRICT-679329.
ADDL.R27 AHAMMEDKUTTY
AGED 43 YEARS S/O LATE PARAYANTHODI ABDUL AZEEZ ALIAS AZEEZ PARAYANTHODI HOUSE, NILAMBUR AMSOM DESOM, NILAMBUR TALUK MALAPPURAM DISTRICT -679329.
ADDL.R28 ANULA
AGED 39 YEARS
D/O LATE PARAYANTHODI ABDUL AZEEZ ALIAS AZEEZ PARAYANTHODI HOUSE,
RSA No.679 of 2021 & RSA No.64 of 2022
12
NILAMBUR AMSOM DESOM NILAMBUR TALUK MALAPPURAM DISTRICT-679329..
ADDL.R29 ASHITHA
AGED 41 YEARS D/O.LATE PARAYANTHODI ABDUL AZEEZ @ AZEEZ,PARAYANTHODI HOUSE,NILAMBUR AMSOM DESOM,NILAMBUR TALUK, MALAPPURAM DISTRICT-679329. (LEGAL HEIRS OF DECEASED R3 ARE IMPLEADED AS ADDL.RESPONDENTS 26 TO 29 AS PER ORDER DATED 25.08.2023 IN IA.1/2023)
BY ADVS. M.A.ZOHRA FOR R1 N.M.MADHU FOR ADDL.R26 TO R29
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2023 ALONG WITH RSA NO.679/2021 AND THE COURT ON 01.12.2023 DELIVERED THE FOLLOWING:
RSA No.679 of 2021 & RSA No.64 of 2022
13
COMMON JUDGMENT
Dated this the 1st day of December, 2023
These regular second appeals have been filed under Section 100 r/w Order XLII of the Civil Procedure Code (hereinafter referred to as 'CPC' for short).
RSA No.679 of 2021 & RSA No.64 of 2022
14
in AS No.31/2019 arose therefrom.
as the learned counsel appearing for the respondents in these appeals.
5. The brief facts are as follows:
In this case, as per the preliminary decree was passed in O.S.No.105/2006 dated 08.04.2009, the learned munsiff declared the rights of the parties. Thereafter, final decree application, viz., FDIA No.941/2016 was filed and final decree also was passed and engrossed in stamp papers during the pendency of RSA 1238/2015 before this Court, challenging the preliminary decree as well as the appellate decree in AS No.25/2013 on the files of the District Court, Manjeri. While considering RSA 1238/2015, this Court passed decree and judgment, after re-allotting the shares in accordance with Mohammedan law of Inheritance. The judgment in RSA 1238/2015 dated 10.12.2015 would go to show that, by consent of the plaintiff, re-allotted the shares in accordance with
RSA No.679 of 2021 & RSA No.64 of 2022
15
Mohammedan law of inheritance and virtually, the final decree passed and engrossed in the stamp paper stands effaced, which led to consideration of FDIA No.941/2016 again.
RSA No.679 of 2021 & RSA No.64 of 2022
16
RSA No.679 of 2021 & RSA No.64 of 2022
17
defendant No.8 shall pay Rs.59/-, defendant No.9 shall pay Rs.84/-, defendant No.10 shallpay Rs.84/-, defendant No.13 shall pay Rs.88/-, defendant No.14 shall pay Rs.120/-, defendant No.15 shall pay Rs.412/- to defendant No.2;
RSA No.679 of 2021 & RSA No.64 of 2022
18
the appeal after formulating the following substantial question of law as per order dated 27.07.2023.
“On admission of CW1 that the properties covered under Exhibhits B6 and B7, which have been excluded from partition under the preliminary decree, have not been separately marked and identified in the Commissioner's plan, and when the plan prepared in respect of such excluded property is at variance from the identification made by the Commissioner in the earlier final decree proceedings, the identity of which was not under challenge, were the Court right in having accepted the Commissioner's report and plan and passed final decree in terms thereof?”
19
RSA No.679 of 2021 & RSA No.64 of 2022
RSA No.679 of 2021 & RSA No.64 of 2022
20
and overruled the objection raised by the appellants as against Ext.C1 series. Therefore, the final decree under challenge does not require any interference, as the properties covered by Exts.B6 and B7 were excluded from partition, in terms of the preliminary decree.
21
RSA No.679 of 2021 & RSA No.64 of 2022
cent) plan I plot = 3 Exhibit B6 = 1.1210 H (2 Acre 77 cent) plan I plot 4, 6 plaint 'C' schedule item No.1, 2=2.8288 Hectare = 6
Acre 99 cents. Plan I plot 22,25. The properties available for petition in 'A' schedule 1 to 47.47.45 H minus 6.2405 H = 1.2340 Hectre. (18 Acre 46.9 cent minus 15 Acre 42 cent) balance come to 3 Acre and 4.92 cents”.
RSA No.679 of 2021 & RSA No.64 of 2022
22
schedule. The Surveyor also given evidence that in Sy.No.980/1, 3000 acres of property is situated. Further, he deposed that in unsurvey No.1380/part, the property would come to 5,000 to 6,000 acres and the property could be identified only by natural boundaries and based on possession. As such, the identification of the properties as per Ext.C1 series is properly done. It is interesting to note that the Surveyor, who, in fact, authored the plans, in no way seriously cross-examined, pointing out the anomalies in the plans in any manner and the learned counsel for the appellant in RSA No.679/2021 not even cross-examined the Surveyor and as such the evidence of the Surveyor except the formal challenge raised by the 3rd respondent remains in tact.
RSA No.679 of 2021 & RSA No.64 of 2022 23
acres. As per the preliminary decree, properties excluded by Exts.B6 and B7 were directed to be partitioned and he did not locate Exts.B6 and B7 properties in the plan. Noticing the said evidence of the Commissioner as not trustworthy, the Court put a question to clarify as to whether Exts.B6 and B7 properties were shown in the plan?. Then the Commissioner answered that plot Nos.2, 3, 4, 5 and 6 in Ext.C1(a) plan are the the properties covered by Exts.B6 and B7. Then he deposed about the boundaries of Exts.B6 to B7. Thus, it appears that the Commissioner, in fact, given evidence while cross-examining him by the learned counsel for the appellants stating that Exts.B6 and B7 properties were not shown in Ext.C1(a) plan and when the court interfered, he had given evidence that properties covered by Exts.B6 and B7 were located by the Surveyor and the same are plot Nos.2, 3, 4, 5 and 6. It is interesting to note that the Commissioner, as per the report, categorically reported that some of the properties are exempted from partition i.e., Exhibit A5 = 0.4047H. (1 acre) plan I plot=2, Exhibit B7=1.8860H
RSA No.679 of 2021 & RSA No.64 of 2022
24
(4 acre 66 cent) plan I plot = 3 Exhibit B6 = 1.1210 H (2 Acre 77 cent) plan I plot 4, 6 plaint 'C' schedule item No.1, 2=2.8288 Hectare = 6 Acre 99 cents. Plan I plot 22,25. The properties available for petition in 'A' schedule 1 to 47.47.45 H minus 6.2405 H = 1.2340 Hectre. (18 Acre 46.9 cent minus 15 Acre 42 cent) balance come to 3 Acre and 4.92 cents. On perusal of Ext.C1(a) plan, it is crystal clear that Exts.B6 and B7 plots were specifically identified and the identification is based on the available materials as deposed by CW2 Surveyor. In fact, the evidence of CW1 is given much emphasis by the appellants herein to disbelieve the plan mainly on the ground that Exts.B6 and B7 properties were not identified and located in Ext.C1(a) plan. This appeal got admitted to decide the said question of law alone. In this case, the courts below concurrently found that Ext.C1 series are sufficient to identify the properties that form part of 5000 - 6000 acres of land. Therefore, I am inclined to consider only the substantial question of law formulated in these appeals appreciating the materials available. First of all, it
RSA No.679 of 2021 & RSA No.64 of 2022
25
is observed that the evidence of CW2 is fully in support of Ext.C1 series and the same not shaken in any manner. But CW1 given evidence in deviation from his own report and plan by saying that he did not locate Exts.B6 and B7 properties at the first instance. Later he was forced to correct the said version when the court interfered and supported Ext.C1 series. In the said circumstances, the evidence of CW2, which was not shaken in cross-examination, would go to show that Ext.C1 series were prepared as per the available boundaries locating the decree schedule properties form part of survey number, where 50006000 acres of properties in the same survey number actually lie.
RSA No.679 of 2021 & RSA No.64 of 2022
26
learned counsel for the appellants to find anomalies in Ext.C1(a) plan. In fact, the said exercise should have been done by crossexamining the commissioner and the surveyor, who authored those plans and the appellants miserably failed to do the said exercise before the trial court. Therefore, this Court is not in a position to go for a comparison of the two plans, without the aid of the evidence of commissioner and surveyor in this regard, which should have been adduced before the trial court.
RSA No.679 of 2021 & RSA No.64 of 2022
27
In view of the matter, both appeals must fail and are accordingly dismissed.
All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed.
Registry shall inform this matter to the trial court as well as the appellate court forthwith.
Sd/A. BADHARUDEEN JUDGE
nkr
1 issue framed by the court
Whether the Commissioner's report and plan were rightly accepted when the properties excluded from partition under the preliminary decree were allegedly not separately marked and identified in the pla
2 provisions across 1 enactments
Parayanthodi Abdul Azeez @ Azeez
Parayanthodi Kunhalikutty @ Kunhali
Parayanthodi Kunhayisha
Parayanthodi Nafeesa
Parayanthodi Pathukutty
Parayanthodi Mariyakutty
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
