Kerala High Court · 2012

RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 5 : --------------

1. JANAKI, D/O.PERUMBILAVIL PARVATHY AMMA, RESIDING AT NADUKKALAM, KARAKURUSSI AMSOM, MANNARKKAD TALUK, PALAKKAD DISTRICT.

2. DAKSHAYANI MENON, D/O. PERUMBILAVIL JANAKI AMMA. 3. LAKSHMI, D/O. DAKSHAYANI AMMA. 4. SARASWATHY, D/O. DAKSHAYANI AMMA. 5. KRISHNAN, D/O. DAKSHAYANI AMMA. (RESPONDENTS 2 TO 5 ARE RESIDING AT GANESH NILAYAM, 3RD CROSS, HOUSE NO.2626, 18 MAIN-HAL SECOND STAGE, BANGALORE) BY ADV. SRI.K.RAVI (PARIYARATH) BY ADV. SRI.G.SREEKUMAR (CHELUR) THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 16-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S.NO.622/2001 ORDER ON C.M.P.NO.4516/2001 IN A.S.NO.622/2001 ------------------ DISMISSED. 16/7/2012 Sd/- HARUN-UL-RASHID, JUDGE. True Copy P.S. TO JUDGE ORDER ON CMP.NO.4516/2001 IN A.S.NO.622/2001 ------------ Dismissed 16/7/2012 Sd/- HARUN-UL-RASHID, JUDGE. True Copy P.S. To Judge HARUN-UL-RASHID,J. ----------------------------- A.S.NO.622 OF 2001 ----------------------------- DATED THIS THE 16TH DAY OF JULY, 2012 JUDGMENT First defendant is the appellant. The appeal is directed against the judgment and decree in O.S.No.381/1995 on the file of the Sub Court, Ottapalam. The suit was filed for partition of the plaint schedule property into 7 equal shares and to allot one such share to the plaintiff with future mesne profits. The court below decreed the suit and a preliminary decree for partition of the plaint B schedule properties was passed directing division of plaint B schedule properties by metes and bounds into 7 equal shares and two such shares shall be allotted to the plaintiff. It is declared that the defendants are also entitled to get one share each, which shall be allotted on payment of requisite court fee and that the plaintiff is entitled to mesne profits from the date of suit till delivery of possession or three years from the date of decree whichever occurs first and other incidental reliefs. Parties are hereinafter referred to as the plaintiff and defendants as arrayed in the A.S.No.622/2001 suit. -2-

2. The sole appellant died pending appeal. His legal heirs are impleaded as additional appellants 2 to 5. The plaintiff's case is that the properties described in the B schedule to the plaint were allotted to the thavazhi consisting of the predecessors-in- interest of the plaintiff and defendants as per Ext.B1 partition deed dated 1-2-1951. According to the plaintiff, she and defendants 3 to 5 are the children born in the thavazhi, after Ext.B1 partition deed and they obtained right over the thavzhi properties by birth. After the death of her mother, plaintiff claimed that she has got 2/7 shares and defendants 1 to 5 have got 1/7 share each over the plaint schedule properties.

3. Defendants 2 to 5 remained ex parte. The lst defendant filed a written statement contending inter alia that Tak Nos.1 and 2 in item No. 1 and item Nos.3, 5, 6 and 7 shown in plaint B schedule are in the possession of the tenants and are not available for partition, that there was an oral understanding among A.S.No.622/2001 -3- the parties in the presence of P. Narayanankutty, Advocate relating to the partition of the properties, that as per the decision of P.Narayanankutty, Advocate, the house and house compound together with the paddy field have to be allotted to his share and that a decision was taken in the presence of mediator to sell the remaining items of properties and to apportion the sale proceeds among the sharers in proportion to their shares.

4. PW1 was examined on behalf of the plaintiff and ExtA1 was marked on her side. First defendant was examined as DW1 and Ext.B1 was marked on his side.

5. The lst defendant failed to prove his contention that there was an oral understanding among the parties in the presence of P.Narayanankutty, Advocate. The Court below did not accept the said contention finding that except the interested testimony of PW1 there is no acceptable evidence to prove the said fact and that the evidence tendered by DW1 is not sufficient to arrive at a conclusion that there was an oral understanding between the A.S.No.622/2001 -4- parties relating to the partition of the properties belonging to them. Rejecting the contention raised by the defendants the court below held that the paint B schedule property is available for partition among the sharers. The lst defendant is residing in the house situated in the plaint schedule property and he requested the court to allot the said house to his share in the event of partition. Finding that the lst defendant is occupying the house, the court below held that it is just and reasonable that while effecting partition as far as practicable, the house in the plaint schedule property shall be allotted to the lst defendant, after valuing the same.

6. It is not disputed that the property described in plaint B schedule was allotted to the thavazhy of the plaintiff as per Ext.B1 partition deed. The predecessors-in-interest of the plaintiff and defendants 1 to 5 are parties in Ext.B1 partition deed. The court below examined the contention of the lst defendant as to whether tak Nos.1 and 2 in item No.1 and item Nos.3, 5, 6 and 7 A.S.No.622/2001 -5- in the plaint B schedule are in possession of the tenants and as to whether those items are available for partition or not. The contesting defendant failed to produce documents to prove that tak Nos. 1 and 2 in item No.1 and item Nos. 3, 5, 6 and 7 in the plaint B schedule are outstanding in the possession of the tenants. Therefore, the court below held that it cannot be held that those items are in possession of the tenants and that from Ext.B1 it would appear that the thavazhi is in possession of the properties described in plaint B schedule to the partition deed. The court also on facts held that the defendants have failed to prove oral partition or oral arrangement between the parties. In the said circumstances, the court below held that the plaintiff has got right over plaint B schedule properties and the said items are liable to be partitioned. The quantum of mesne profits is left open to be decided in the final decree proceedings. The findings of the court below are recorded based on the facts and evidence in the case. In the absence of the evidence to prove that the items mentioned above are in the A.S.No.622/2001 -6- possession of the tenants, the court below held that plaint B schedule properties are available for partition and the plaintiff is entitled to a decree for partition of 2/7 shares. The decree passed by the court below does not suffer from any legal infirmity. I agree with the findings recorded by the court below. No grounds are made out by the appellant to interfere with the judgment and decree passed by the court below. In the result, the appeal fails and accordingly dismissed. No order as to costs. kcv. Sd/- HARUN-UL-RASHID, JUDGE. A.S.No.622/2001 -7-