AS.No. 756 of 1997 (E) & con. cases

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 AS.No. 756 of 1997(E) --------------------AGAINST THE ORDER IN IA.3189/90 IN OS.518/1981 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S)/RESPONDENTS 2 TO 6/DEFENDANTS 3 & 5 TO 8: ---------------------------------------------------------------------------------------- 1. JANAKI, W/O. CHAMUNNI, PUTHENKALAM, KUZHALMANNAM, CHITHALI, ALATHUR, PALGHAT. 2. INDIRA, PUTHENKALAM, KUZHALMANNAM, ALATHUR, PALGHAT. 3. PARTHAN, PUTHENKALAM, KUZHALMANNAM, CHITHALI, ALATHUR. 4. KANNAN, PUTHENKALAM, KUZHALMANNAM, CHITHALI, ALATHUR. 5. MURALI, PUTHENKALAM, KUZHALMANNA, CHITHALI, ALATHUR. BY ADV. SRI.V.V.ASOKAN SRI.K.I.MAYANKUTTY MATHER RESPONDENT(S)/APPLICANT & RESPONDENTS 7 TO 19/LRS OF PLAINTIFF & DEFENDANTS 9 TO 11 & LRS OF DEFENDANTS 1 & 2: ---------------------------------------------------------------------------------------- 1. RAJAN, S/O. NANIKUTTY, (DIED) CHENGOTTIL, PIRAYARI AMSOM, PALAKKAD TALUK AND DISTRICT. 2. SIROMANI, D/O. NANIKUTTY, PUTHENVEETTIL, KINASSERI AMSOM, PALAKKAD. 3. SEKHARAN, S/O. AMMU, CHITHALI, COYALMANNAM, ALATHUR. 4. SUDHEVAN, CHITHALI, COYALMANNAM, ALATHUR. 5. SURENDRAN, S/O. AMMU, CHITHALI, COYALMANNAM, ALATHUR. 6. RUGMINI, W/O. GOPALAN, CHITHALI, COYALMANNAM, ALATHUR. 7. JAGANIVAS, S/O. RUGMINI, CHITHALI, COYALMANNAM, ALATHUR. 8. SREENIVASAN, S/O. RUGMINI, CHITHALI, COYALMANNAM, ALATHUR. 9. HARIDASAN, S/O. RUGMINI, CHITHALI, COYALMANNAM, ALATHUR. 10. BHAVADASAN, S/O. RUGMINI, CHITHALI, COYALMANNAM, ALATHUR. 11. KALPAKAM, S/O. RUGMINI, CHITHALI, COYALMANNAM, ALATHUR. 12. PAZHANI MALA, S/O. RUGMINI, CHITHALI, COYALMANNAM, ALATHUR. 13. SATHEESH (MINOR) REPRESENTED BY FATHER GUARDIAN, CHITHALI, COYALMANNAM, ALATHUR. 14. SAJEEV (MINOR) REPRESENTED BY FATHER GUARDIAN CHITHALI, COYALMANNAM, ALATHUR. 15. SURESH (MINOR) REPRESENTED BY FATHER GUARDIAN CHITHALI, COYALMANNAM, ALATHUR. 16. SAROJINI, W/O. PAZHANI (DIED) THUPPALATH, KOTTEKKAD, PALAKKAD. 17. RAJAMANI, W/O. APPU, MARUTHANKOTTIL, PAZHAPALAKKODE AMSOM, ALATHUR. ADDL.RESPONDENTS 18 TO 22 IMPLEADED. 18. PRAKASH, S/O.LATE SAROJINI, RESIDING IN THUPPALATH, KOTTEKKAD, PALAKKAD. 19. GEETHA, D/O. LATE SAROJINI, RESIDING IN THUPPALATH, KOTTEKKAD, PALAKKAD. ADD.R20 TO 22 IMPLEADED. 20. YESODA, W/O. RAJAN, CHENGOTTIL, PIRAYARI AMSOM. 21. BABY SUDHA, D/O. RAJAN, CHENGOTTIL, PIRAYARI AMSOM. 22. BIJU (MINOR) RERESENTED BY HIS MOTHER YESODA CHENGOTTIL, PIRAYARI AMSOM. ADDL. RESPONDENTS 18 AND 19 ARE IMPLEADED AS THE LRS OF THE DECEASED 16TH RESPONDENT AS PER ORDER ON 7.8.2007 ON C.M.P. 8081/1998. ADDL.RESPONDENTS 20 TO 22 IMPLEDED AS THE LRS OF THE DECEASED 1ST RESPONDENT AS PER ORDER DTD. 7.8.2007 ON C.M.P.3788/2001. ADV. SRI.P.B.KRISHNAN FOR R3 SRI.P.B.SUBRAMANYAN FOR R3 SRI.N.SUKUMARAN FOR R6 TO R11 SRI.S.SHYAM FOR R6 TO 11 SRI.PHILIP M.VARUGHESE FOR R6 TO 11 SRI.BIPIN VIJAYAN FOR R12 TO 15 SMT.M.A.ZOHRA,ADV.COMMSR. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/10/2011, ALONG WITH AS NO. 863 OF 1998 & RFA NO. 581 OF 2004 THE COURT ON 21/10/2011 DELIVERED THE FOLLOWING: ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. Nos. 756 of 1997, 863 of 1998 & R.F.A. No.581 of 2004 & Cross Objection - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2011. ## **JUDGMENT** All these three appeals arise from a final decree passed in O.S. 518 of 1981, which was a suit for partition. 2. Claiming that the properties belonged to one Ammu and the plaintiffs and defendants, who are members of a Hindu undivided family and one Chammunni, who is no more, and alleging that Ammu died intestate suit was laid for partition. Various defendants raised different contentions, which are not very relevant for the present purpose. Suffice is to say that after considering the rival contentions and the evidence on record, the trial court dismissed the suit. 3. Appeals were preferred from the decree passed by the trial court before this court. There were A.S.756/1997 & con.cases. . 2 three appeals, A.S.519 of 1983, 535 of 1983 and 540 of 1983. By a common judgment dated 2.3.1990, after excluding some of the items, a preliminary decree for partition was passed by this court. 4. Thereafter, the plaintiffs in the suit moved I.A.1723 of 2001 for passing of the final decree. As per the preliminary decree respective parties were entitled to ¼ shares. In the final decree proceedings, a commissioner was appointed to identify the plaint schedule properties and partitioned it by metes and bounds. The Commissioner filed his report and plan. After considering the objections filed by the parties as per I.A.1095 of 1996 and 1196 of 1996, Exts.C1 and C2 commission plan and report were accepted by the court below. 5. It appears that as per order in I.A.3189 of 1990 the trial court had passed an interim final decree on 9.6.1997. That was occasioned due to the fact that appeals were pending before the Supreme Court in respect of certain A.S.756/1997 & con.cases. . 3 items. At the time of passing of the interim final decree, the court below left open the rights of the parties to move for a further final decree after the appeals were disposed of by the Supreme Court. Subsequently the appeals before the Supreme Court were dismissed and applications for final decree were moved. 6. Even though the extent of property available for partition as stipulated in the preliminary decree was 48.58 acres, on measurement it was found to be far less in extent. Going by the commission report, properties available for partition was found to be only 21.57 acres. It appears that even though the commission report was challenged before this court, that did not succeed. Accepting the commission report, final decree was passed in terms of the suggestion made by the commissioner. 7. Aggrieved by the final decree, defendants 3 and 5 to 8 preferred A.S. 756 of 1997, defendants 12 to 17 preferred A.S. 863 of 1998 and R.F.A. 581 of 2004. A.S.756/1997 & con.cases. . 4 8. It is seen from the records that at one stage this court felt that much of the controversies between the parties can be resolved if a commissioner could be deputed from this court to find out whether there is excess property. While deputing the commissioner to determine this fact, this court was cautious enough to mention that the allocation made by the commissioner before the trial court and which was accepted by the court below may not as far as possible be disturbed. The commissioner deputed by this court has filed a report and plan. 9. Learned counsel appearing for the appellants pointed out that the commission report accepted by the trial court and the commission report filed before this court are at variance and that shows that the allocation made by the lower court accepting the commission report is incorrect. Learned counsel drew the attention of this court to the fact that while as per Ext.C1 plan the total extent available for partition is 21.57 acres, the commissioner deputed from this A.S.756/1997 & con.cases. . 5 court held that only 19 ½ acres is available, which shows, according to learned counsel, that there has been no proper identification of the properties. A complaint was also raised that it was found at the preliminary decree stage that the property covered by Ext.B35 which comes to over 2 and odd acres which is to be excluded had not been identified and without doing so the final decree could not have been passed. Learned counsel also drew the attention of this court to the report of the commissioner, which was accepted by the lower court in which it is stated that the single crop wet land, double crop wet land and garden land are valued at the same rate. This, according to learned counsel, is totally unacceptable and the further contention is that the mesne profits deposited by defendants 12 to 16 have not been given credit to. 10. Learned counsel appearing for the contesting respondents on the other hand pointed out that the contention now raised are frivolous and without any basis. A.S.756/1997 & con.cases. . 6 According to learned counsel, there may be marginal differences regarding the extent of properties available for partition between the commission report accepted by the court below and the commission report filed before this court, but that according to learned counsel is too insignificant to set aside the final decree passed by the court below now and to remand the matter to the trial court for fresh consideration. Learned counsel drew the attention of this court to the plan submitted by the commissioner before this court and pointed out that it almost tallies with the plan submitted by the commissioner before the lower court and which was accepted by the court below. If at all there is any dispute regarding the identification of the properties, learned counsel pointed out that that can be resolved at the time of execution and the adjustment of the mesne profits can also be settled at the execution stage. Learned counsel pointed out that the suit was filed in 1981 and even after a lapse of 29 years the plaintiffs are still where as they were. A.S.756/1997 & con.cases. . 7 Learned counsel pointed out that this court should make every effort to put an end to the unending litigation on the basis of frivolous contentions raised by some of the parties to the suit. Learned counsel contended that his clients are advanced in age and they would like to have the fruits of the decree during their life time. 11. There seems to be considerable force in the contention raised by the learned counsel for the respondents. It is true that there is slight difference in the extent of the properties shown in the commission report and plan accepted by the court below and the commission report and plan submitted before this court by the commissioner deputed by this court. But as rightly pointed out by the learned counsel for the respondents, except for a negligible portion, in all other respects the plan submitted by the commissioner before this court tallies with the commission report and plan accepted by the court below. The commissioner deputed from this court has given the reason A.S.756/1997 & con.cases. . 8 for the shortage in extent found by her while measuring the property. It does not appear that the said shortage found by the commissioner deputed from this court will substantially affect the allocation made by the commissioner before the trial court. The commissioner before this court has filed a detailed report and plan. The commissioner has also stated in detail the method adopted in measuring the property. 12. It needs to be remembered that this court had deputed a commissioner to ascertain whether there was excess area than what was allocated in the commission report which was accepted by the court below. This court at the time of deputing the commissioner had made it clear that as far as possible the allocation made by the commissioner, which was accepted by the said court shall not be disturbed. The purpose of issuance of the commission is therefore very evident. It is only to ascertain whether a larger extent was available than what was shown by the commissioner in the court below and which was A.S.756/1997 & con.cases. . 9 accepted for passing the final decree. Obviously there is no excess area going by the commission report filed before this court. 13. Learned counsel appearing for the respondents pointed out that it may be recorded that if it is found at the execution stage that there is any excess area, the plaintiffs before the court below who have filed final decree application have no objection in allotting the excess area to the appellants herein and the plaintiff would not raise any right over the same. 14. It was very vehemently argued that the property covered by Ext.B35 which is to be excluded from partition has not been identified. A perusal of the commission report which was accepted by the court below clearly shows that the commissioner has identified the property which to be excluded. The commission report filed before this court also identifies the same plot as the property that is to be excluded from partition. A.S.756/1997 & con.cases. . 10 15. The commissioner, who was deputed from this court was examined before this court as A.W.1. The commissioner has stated that while allocating the property she has not disturbed the allocation made by the court below based on the commission report before the said court. though she found that the extent of property available for partition is 19 acres and 50 ½ cents. The commissioner has stated that the direction of the court was also to find out the actual extent of property available for partition and she has tried to identify the same with the help of Taluk Surveyor. She has in detail spoken about the procedure adopted by her for identifying the property. It was conceded by the commissioner that she had not verified the property with respect to Ext.B35, but she had verified the property with the aid of schedule. She has also pointed out that the appellants wanted her to identify Ext.B35 property comprised in Sy. No.671/2 and that she has stated in her report that she had located at site. A.S.756/1997 & con.cases. . 11 16. Prima facie there seems to be no justification for the complaint that the property that is directed to be excluded from partition has been included. Both the commission reports, namely commission report filed before the court below and the commission report filed before this court, show that the property that is excluded from partition. If there is any dispute regarding the identity of the property, it is only proper that it is left to be decided at the execution stage. It is felt unnecessary to set aside the final decree passed by the trial court accepting the commission report filed before the said court. At the risk of repetition, it may be noticed that there is not much difference between the commission report which was accepted by the court below for passing the final decree and the commission report filed before this court pursuant to the order issued by this court. 17. As regards the second contention that different types of land had been valued at the same rate, A.S.756/1997 & con.cases. . 12 though it may look attractive at the first blush, on a close scrutiny it can be found to be without any basis. Even assuming that there may be some impropriety in doing so, it affects all the parties equally and therefore it could not be said that the act committed by the commissioner caused prejudice to any one of the parties. The allocation had been made in such a way that it will not cause prejudice to any one of the parties. The appellants were unable to show that the valuation so adopted by the commissioner based on which allocation has been effected by the court below while passing the final decree has caused any prejudice to them. 18. As regards the contention that defendants 12 to 16 have deposited Rs.16,60,000/- towards the income and there is no order regarding its adjustment and also such other orders regarding the mesne profits payable, it only needs to be stated that the court below while passing the final decree has mentioned the liability of the respective persons to mesne profits. If at all there is any dispute A.S.756/1997 & con.cases. . 13 regarding the quantum of mesne profits to be paid and adjusted, that can be determined at the stage of execution. 19. Recently the Apex Court had occasion to consider the delay caused in disposing of the suit which causes considerable injustice to one of the parties. In the decision reported in **Ramrameshwari Devi v. Nirmala Devi** ((2011) 8 SCC 249) the Apex Court emphasized that the courts need to be diligent in their functions and that unnecessary and unwarranted methods adopted for protracting matters are to be curbed. The Apex Court had cautioned the courts that parties should not get the impression that they stand to gain by protracting the litigation and if by doing so unfair enrichment is obtained by one of the parties, he has to be deprived of such unwarranted gains and the party who suffered had to be adequately compensated. 20. This is the typical example of a case where unnecessary contentions are being raised and the matter is A.S.756/1997 & con.cases. . 14 attempted to be protracted under one pretext or another. Whatever that be, going by the records available and also the commission report before this court, there seems to be no justification for interfering with the final decree passed by the court below. 21. Of course the dispute regarding the identity of the property and also the adjustment of mesne profits and the quantum of mesne profits that is liable to be paid by each of the parties as earlier mentioned can be determined at the execution stage. These appeals are accordingly dismissed with the above observation and there is no order as to costs. Cross-objection is also dismissed. ## **P. BHAVADASAN, JUDGE** sb.