Second appeal in a partition suit challenging failure to account for compensation received by a co-owner for railway acquisition of 3.11 Ares of the plaint schedule property. The High Court modified the preliminary decree, directing adjustment of Rs.7,83,853.73 at final decree proceedings on principles of equity and owelty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 29TH DAY OF JANUARY 2024 / 9TH MAGHA, 1945
RSA NO. 376 OF 2021
AGAINST THE ORDER/JUDGMENT OS 27/2012 OF PRINCIPAL MUNSIFF, ALAPPUZHA
AS 17/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II,
ALAPPUZHA / II ADDITIONAL MACT/ LAND ACQUISITION REHABILIEATION
AND RE-SETTLEMENT AUTHORITY, ALAPPUZHA
APPELLANT/S IN A.S No. 17/2017/2nd DEFENDANT IN O.S NO. 27/2012
MURALI
AGED 59 YEARS
S/O.NARAYANAN, 'MURALIKA' HOUSE, PADINJARE MURI,
KARUMADY P.O., AMBALAPUZHA, ALAPPUZHA.
BY ADV S.K.BALACHANDRAN
RESPONDENT/S: 2 TO 5 IN A.S.17/2017/2nd PLAINTIFF, DEFENDANT & LRs
OF DECEASED 1ST PLAINTIFF
1 MOHANAN PILLAI,(DELETED)S/O.THANKAMMA KUTTIYAMMA, KEERTHI VIHAR, KIZHAKKE NADA, KARUMADY, AMBALAPUZHA, ALAPPUZHA.2 APPUKKUTTAN PILLAI,(DELETED) S/O.DAMODARAN NAIR, KIZHAKKEMURI, KADATHUPUTHENVEETTIL, KARUMADY P.O., ALAPPUZHA.3 AJI @ BINDHU, D/O.LATE PARUKKUTTY AMMA, S.K.VIHAR, KARMADY P.O., AMBALAPUZHA, ALAPPUZHA.4 ANILA @ SINDHU, D/O.LATE PARUKKUTTY AMMA, S.K.VIHAR, KARMADY P.O., AMBALAPUZHA, ALAPPUZHA.(ADDITIONAL RESPONDENTS ARE IMPLEADED)
5 SEENA, D/O.LATE APPUKKUTTAN PILLAI,KIZHAKKEMURI, KADATHUPUTHENVEETTIL, KARUMADY P.O., ALAPPUZHA.6 SARATH, S/O.LATE APPUKKUTTAN PILLAI,KIZHAKKEMURI, KADATHUPUTHENVEETTIL, KARUMADY P.O., ALAPPUZHA.7 MARIYAMMA, W/O.LATE MOHANAN PILLAI,KEERTHI VIHAR,KIZHAKKE NADA,KARUMADY, AMABALAPUZHA,ALAPPUZHA.R.S.A No. 376 of 2021
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8 KEERTHI, D/O.LATE MOHANAN PILLAI,KEERTHI VIHAR,KIZHAKKE NADA,KARUMADY, AMABALAPUZHA,ALAPPUZHA.9 GAYATHRI, D/O.LATE MOHANAN PILLAI,KEERTHI VIHAR,KIZHAKKE NADA,KARUMADY, AMABALAPUZHA,ALAPPUZHA.(R1 AND R2 ARE DELETED FROM THE PARTY ARRAY AND THE
RESPONDENTS 5 TO 9 ARE IMPLEADED AS ADDL.RESPONDENTS 5
TO 9 AS PER ORDER DATED 16.09.2022 IN IN IA.1/2022 in
RSA.376/2022.)
BY ADV N.S.DAYA SINDHU SHREE HARI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A No. 376 of 2021
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J U D G M E N T
The second defendant in O.S.No.27/2012 on the
files of Munsiff’s Court Alapuzha is the appellant
herein and he impugns preliminary decree and judgment
in the above suit dated 30.11.2016 and the appellate
decree and judgment in AS 17/2017 dated 05.02.2020 on
the files of II Additional District Court Alappuzha.
2.Heard the learned counsel for the
appellant/2nd defendant and the learned counsel
appearing for the additional respondents 7,8 and 9 who
are the legal representatives of the 1st respondent/2nd
plaintiff.
3.At time of admission, my learned predecessor
as per order dated 03.02.2023 framed the following
substantial question of law:
"Whether the preliminary decree passed by the
trial court and confirmed by the 1st Appellate Court
without considering the acquisition of major portion
of the plaint schedule property by the Railways
and without giving direction regarding the
partition/adjustment of the compensation received by
the 1st plaintiff, for the acquired property is
sustainable in law?"
R.S.A No. 376 of 2021
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4.At the time of hearing, the learned counsel
for the appellant submitted that the appellant is
aggrieved in the matter of non-consideration of a plea
raised by the appellant in respect of Rs.7,83,853.73/-
which was received by the original 1st plaintiff when
3.11 Ares of property form part of Plaint Schedule
Property was acquired by the Railways.
5.The learned counsel placed reliance on
‘Ext.X1 series’ documents showing receipt of money by
the 1st plaintiff and evidence given by the Tahsildar
as PW2 in this regard. On perusal of Ext.X1 series and
the evidence of PW2, this submission appears to be
convincing. Other side also did not oppose the receipt
of Rs.7,83,853.73/- by the 1st plaintiff
6.Since, grievance addressed by the appellant
is having force, the preliminary decree passed by the
Trial Court and confirmed by the Appellate Court would
require modification. Accordingly, it is held that the
Trial Court as well as 1st Appellate Court went wrong
in not considering this aspect.
R.S.A No. 376 of 2021
7.Since no other dispute in between the parties
subsist, the decree and judgment at the Trial Court
confirmed by the Appellate Court stands modified and
thereby it is ordered that at the time of final decree
proceedings, Rs.7,83,853.73/- received by the first
plaintiff in respect of 3.11 Ares of property form
part of the plaint schedule property acquired by the
Railway shall be appropriately adjusted under
principles of equity and on the premise of owelty in
accordance with law.
The second appeal stands allowed to the extend
indicated above.
Sd/-
A. BADHARUDEEN
JUDGE
SM
1 issue framed by the court
Whether the preliminary decree confirming partition without adjusting the compensation of Rs.7,83,853.73 received by the 1st plaintiff for railway acquisition of part of the schedule property is susta
Murali
Aji @ Bindhu
Anila @ Sindhu
Seena
Sarath
Mariyamma
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court