SREENI KUMAR v. PRASAD KUMAR

OP(C).No. 2789 of 2012 (O)7. RAMA, AGED 44 YEARS, W/O LATE BABU, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023.8. SHYNI, AGED 25 YEARS, D/O BABU, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023.9. KANNAN, AGED 42 YEARS, S/O BABU, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023.10. PADMINI, AGED 58 YEARS W/O LATE DAMODARAN, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023.11. PREM KUMAR A.D., AGED 34 YEARS, S/O DAMODARAN, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023.12. PRAVIN KUMAR A.D., AGED 32 YEARS, S/O DAMODARAN, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023.13. PAMMI MOLE A.D., AGED 30 YEARS, W/O PRADEEP KUMAR, PARVATHI NIVAS, ALUNKAL, VADUTHALA, COCHIN-682023.*ADDL. RESPONDENTS NO.14 & 15 IMPLEADED 14. SUBHA, AGED 45 YEARS, W/O MURALEEDHARAN, RESIDING AT UZHUNNUKATTIL VEETTIL, MANJUMMAL P.O.,PIN.683501.15. GOVINDH, AGED ABOUT 9,S/O MURALEEDHARAN, UZHUNNUKATTIL VEETTIL, MANJUMMAL P.O., PIN.683501, ERNAKULAM DIST. MINOR REPRESENTED BY THE GUARDIAN AND MOTHER SUBHA.ADDL. RESPONDENTS NO.14 & 15 IMPLEADED AS LEGAL HEIRS OF THE DECEASED 6TH RESPONDENT AS PER ORDER DATED 18.10.2012 IN I.A.13818/12 IN OP(C)2789/2012. R1,R14,R15 BY ADVS. SRI.PEEYUS A. KOTTAM SRI.JEFF JOSEPH R7-R9 BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.ANILA PETER THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:NS OP(C).No. 2789 of 2012 (O) APPENDIX PETITIONER(S) EXHIBITS :EXHIBIT P1: COPY OF THE JUDGMENT DATED 18.10.2004 IN AS 23/2001 OF THE DISTRICT COURT ERNAKULAM.EXHIBIT P2: COPY OF THE I.A.NO.2614/2009 FINAL DECREE APPLICATION FILED BY 1ST RESPONDENT BEFORE THE PRINCIPAL MUNSIFFS COURT ERNAKULAM.EXHIBIT P3: COPY OF THE COUNTER AFFIDAVIT TO FDIA 2614/2009.EXHIBIT P4: COPY OF THE INTERIM REPORT OF COMMISSIONER DATED 21.8.2009.EXHIBIT P5: COPY OF THE COMMISSION REPORT DATED 28.9.2011 ALONG WITH THE SKETCH AND VALUATION REPORT.EXHIBIT P6: COPY OF THE OBJECTION DATED 7.1.2012 FILED BY THE 1ST RESPONDENT TO THE COMMISSION REPORT.EXHIBIT P7: COPY OF I.A.NO.546/2012 DATED 21.1.2012 FILED BY THE 1ST RESPONDENT.EXHIBIT P8: COPY OF THE COUNTER AFFIDAVIT DATED 4.2.2012 TO THE I.A.NO.546/2012 FILED BY THE PETITIONER.EXHIBIT P9: COPY OF THE ADDITIONAL COUNTER AFFIDAVIT DATED 16.7.2012 FILED BY THE PETITIONER.EXHIBIT P10: COPY OF THE REPLY AFFIDAVIT DATED 24.7.2012 FILED BY THE 1ST RESPONDENT.EXHIBIT P11: COPY OF THE ORDER DATED 4.8.2012 IN I.A.NO.546/2012. RESPONDENTS' EXHIBITS : NIL/ TRUE COPY /NS P.A. TO JUDGE V.CHITAMBARESH, J.--------------------------------------------------O.P.(C) No.2789 of 2012---------------------------------------------------Dated this the 12th day of November, 2012JUDGMENTThe matter arises in the final decree in a suit for partition ofabout 17.59 cents of land with buildings thereon. The preliminarydecree for partition declared the shares of parties as follows:-(i) Plaintiff - 1/6 share. (ii) Defendants 1 to 4 - 1/6 share each.(iii) Defendants 5 to 7 together – 1/6 share.2. The Advocate Commissioner deputed in the final decreeproceedings has divided the land into six plots after excluding thepathway. The building in plot C has been reserved to the 3rddefendant in the preliminarily decree. Similarly the building inplot F has been reserved to the 1st defendant in the preliminarydecree. I am now concerned with the building in plot G whichalone has a road frontage. 3. It is in evidence that the building in plot G is acommercial building having different shop rooms. It is alsoconceded that portions of the building are occupied by the legalheirs of defendants 1, 2 and 4. Plot F where one building is O.P.(C) No.2789 of 20122situated is already reserved for the 1st defendant as statedearlier. Therefore preference has to be between the legal heirs ofdefendants 2 and 4 as regards plot G. The plaintiff as well as thelegal heirs of the 2nd defendant have offered at the rate of Rs.5lakhs per cent. I think the most feasible and just way to partitionis to put plot G for auction between the legal heirs of defendants2 and 4.4. The plaintiff is concededly not conducting business in thebuilding in plot G. Ext.B13 referred to in the judgment inA.S.No.23 of 2001 does not spell out any reservation. Ext.B13agreement would at best indicate that all the sharers are entitledto the value of the building in plot G. Preference of allotment ofthe building in plot G has to be worked out between the legalheirs of defendants 2 and 4. They occupy the building along withthe legal heirs of the first defendant for the purpose of business. 5. I set aside the order of the court below directing plot 'G'to be put in auction amongst all sharers. The auction shall beconfined to the legal heirs of defendants 2 and 4. The successfulbidder would not be entitled to the allotment of plots A, B and D. O.P.(C) No.2789 of 20123The valuation of plots A, B, C, D and F shall be on the basis ofevidence. All parties are entitled to let in evidence to establishthat the valuation made by the Commissioner is insufficient. Thequestion of owelty towards equalisation of shares arises after aproper valuation of the plots is made on evidence.The order impugned in I.A.No.546 of 2012 in FDIA 2614 of2009 in O.S.No.394 of 1998 on the file of the court of thePrincipal Munsiff of Ernakulam is modified accordingly. The courtbelow shall conduct the auction and take the proceedings to alogical end within a period of four months from the date ofreceipt of copy of this judgment. V.CHITAMBARESH JUDGEmns/