FAO (RO) No.13 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T. V. Anilkumar
Judgment Date: 2020-09-15
Court Decision / Holding: The appeal is allowed setting aside the impugned order of remand dated 30.01.2019 and it is ordered that the final decree dated 30.06.2016 shall stand restored. All pending interlocutory applications will stand closed.
Final Disposition: Appeal allowed; remand order set aside; final decree restored; all interlocutory applications closed.

Parties to the Case

Appellants / Petitioners

KANIYANKANDY SAINABA
SAHIDA
BUSHARA P.
P. MARIYAM

Legal Representation & Advocates

Counsels for Petitioners

• Sri B. Krishnan
• Sri R. Parthasarathy

Counsels for Respondents

• Sri C. K. Sreejith

Case Synopsis & Summary

FAO (RO) No.13/2019 arises from a dispute over partition and building rights in a family property in Thalassery, Kannur. The appellants, who were plaintiffs in O.S. 367/2012, obtained a preliminary decree allocating 33 of 40 shares to them, with the remaining 7 shares to the defendant. The final decree in FDIA 555/2015 allotted a building to the plaintiffs and a separate ‘B’ plot to the defendant, to be treated as a single parcel and not easily divisible. The trial court reserved the questions of profit sharing, equity and right to reservation of the building to the final decree stage. The appellate court later remanded the matter, holding that the respondent had not been given an opportunity to prove that the building was not partible or that it was financed by her funds, and thus required a fresh adjudication. The appellants contended that the distribution per Exts. C1(a) and C1(b) was fair and equitable, and that remand would cause delay and injustice. The respondent argued that she deserved a chance to prove her claim. The judge held that the Advocate Commissioner’s distribution was fair and equitable, that the building’s partition was not practically feasible, and that remand would not serve any useful purpose. Accordingly, the appeal is allowed, the remand is set aside, and the final decree of 30.06.2016 stands restored; all interlocutory applications are closed.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the distribution of property per Exts. C1(a) and C1(b) is fair and equitable and that the final decree passed in the trial court was properly concluded. They argue that the trial court deferred questions of sharing profits, equity and reservation of the building to the final decree stage and that the Advocate Commissioner’s plan provides a fair and practicable allotment. They submit that the lower appellate court’s remand was erroneous because no adequate basis exists to re-open evidence and that the plan already in place should stand.

Contentions of Respondents

The respondent contends she was deprived of a reasonable opportunity to prove that the building was not partible and that it was funded by her own resources; she claims remand was necessary to establish reservation rights for the building. She argues that the share computation may understate her entitlement and that the remand might yield a more favorable repartition if permitted to proceed with evidence, including objections to the Commissioner’s report.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Damayanthi v. Theyyan and Others	[1979 KLT 85]	Positive	The court relies on this decision to support the proposition that in an appeal against an order of remand, the Appellate Judge is not debarred from considering the merits of the claim and deciding the case in the appeal itself.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942** ## **FAO (RO).No.13 OF 2019** **AGAINST THE JUDGMENT AND DECREE DATED 30-01-2019 IN A.S.NO.7/2017 OF PRINCIPAL S.C.,THALASSERY** **AGAINST THE JUDGMENT AND DECREE DATED 30-06-2016 IN FDIA NO.555/2015 IN OS 367/2012 OF MUNSIFF COURT, THALASSERY** **APPELLANTS/ RESPONDENTS 1, 3 & 5 IN A.S./PETITIONERS 1 & 3 IN FDIA/PLAINTIFFS 1, 3 & LR'S OF R2 IN APPEAL AND 2ND DEFENDANT IN O.S.:** **1 KANIYANKANDY SAINABA, AGED 71 YEARS, W/O. HUSSAIN, PADIKKAL HOUSE, MAVILAYI AMSOM, DESOM, MAVILAYI POST, KANNUR TALUK.** **2 SAHIDA, D/O. SAINABA, PADIKKAL BADARIYA MANZIL, ODUNGODU MAVILAYI AMSOM, DESOM, P.O. MAVILAYI, KANNUR.** **3 BUSHARA.P., D/O. SAKEENA, ARAFA MANZIL, PERALASSERY P.O., MUNDALLUR 670 622, KANNUR DISTRICT.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **RESPONDENT/ APPELLANT IN A.S/RESPONDENT IN FDIA/DEFENDANT IN O.S.:** **P.MARIYAM, D/O. HUSSAIN,PADIKKAL BADARIYA MANZIL, ODUNGODU, MAVILAYI AMSOM, DESOM, P.O. MAVILAYI, KANNUR. PIN: 670622.** **BY ADV. SRI.C.K.SREEJITH** **THIS FIRST APPEAL FROM ORDER-REMAND ORDER HAVING BEEN FINALLY HEARD ON 15-09-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O.(R.O.)No.13/2019 -:2:- Dated this the 15[th] day of September, 2020 ## J U D G M E N T The appellants are the plaintiffs in O.S. No.367/2012 on the file of Munsiff Court, Thalassery. The appeal is filed challenging an order of remand passed by the learned Principal Sub Judge, Thalassery in A.S. No.7/2017 setting aside the final decree passed by the lower court in FDIA No.555/2015. 2. A preliminary decree was passed allotting 33 out of 40 shares to the plaintiffs in respect of plaint schedule property and the contesting sole defendant was allotted the remaining 07 shares. The preliminary decree has indisputably become final. There is a building in the property which the defendant claimed to have constructed with her funds and to be not partible. 3. While passing the preliminary decree, the trial court deferred the questions as to share of profits, equity and right to reservation of the building to the stage of final decree. 4. The final decree was passed in FDIA No.555/2015 accepting Ext.C1(a) plan and Ext.C1(b) F.A.O.(R.O.)No.13/2019 -:3:- share list allotting the building to the share of the plaintiffs. 'B' plot was allotted to the defendant which measures 2.60 cents. The plot allotted to the plaintiffs measures 5.70 cents. 5. Being aggrieved by the final decree dated 30.06.2006, the respondent herein filed A.S. No.7/2017 before the sub court, Thalassery. It was contended before the appellate court that the view taken by the court below refusing to allot the building to her share was unjustified and on the whole, the allotment was unfair and inequitable. 6. The appellate court accepted the plea of the respondent herein and being satisfied that she was not given opportunity to substantiate her contention as to right of reservation of building, set aside the impugned final decree and ordered remand of the matter. Being aggrieved by the said remand, this appeal is filed. 7. The appellants/plaintiffs' contention is that the distribution of property made as per Exts.C1(a) and C1(b) is perfectly fair and equitable and the observation made by the lower appellate court that opportunity was not given to the respondent for proving her contention as to F.A.O.(R.O.)No.13/2019 -:4:- right to reservation is erroneous. 8. The learned counsel for the respondent contended that she was entitled to get a reasonable opportunity to prove that the building was not partible and was put up with her own funds and since reasonable opportunity was denied, the order of remand passed by the lower appellate court was amply justified. 9. The preliminary judgment shows that defendant did not adduce any evidence to prove her case that she was entitled to reservation of building to her share. However, taking a liberal view, notwithstanding that the right as to reservation was a triable dispute in the suit itself, the court deferred the issue for being considered at the stage of final decree. It goes without saying that the initial burden lay on the respondent/defendant to establish that the building was not partible and it was constructed with her money alone. Even though the lower appellate court observed that no specific posting for evidence etc., was made, it is a fact that she did not file any objection to the commission report dated 05.01.2016 and adduce any evidence on F.A.O.(R.O.)No.13/2019 ## -:5:- her side despite the pendency of the final decree proceedings for about six months till it culminated in a decree. The learned counsel for the respondent submitted that the respondent had filed a memo before the Commissioner seeking to allot building to her share; but her request was discarded. 10. The respondent could not have as of right demanded allotment of building to her share in the absence of a definite finding by the court that she was entitled to reservation. She failed to prove on her own by adducing any evidence that she was entitled to reservation. It is not factually correct to say that she did not get sufficient opportunity to agitate her claim of reservation. In the absence of evidence proving her contention, the court below rightly proceeded as if the building was partible. 11. The learned counsel for the respondent conceded that the respondent does not have documents to prove that the building was put up by her. That means if at all the order of remand is upheld also, the court below will have to decide the issue based only on oral evidence which would F.A.O.(R.O.)No.13/2019 ## -:6:- involve only oath against oath. Moreover the house building is a very old one not capable of fetching any attractive value. Bearing in the mind the fact that this is a suit filed as early as in the year 2012, I do not consider it fair to accede to the request of the respondent for remand of the matter for enabling her to prove the contention as regards right to reservation of building. 12. Then comes the question as to whether the allotment made as per Ext.C1(a) plan is fair and equitable. The learned counsel for the appellants relying on Damayanthi v. Theyyan and Others [1979 KLT 85] contended that in an appeal against order of remand, the Appellate Judge is not debarred from considering the merits of the claim of the parties and finally deciding the case in the appeal itself. 13. I heard the learned counsel for the respondent and he submitted that there is no pathway for access to the 'B' plot allotted towards respondent's share. This is factually erroneous since Ext.C1(a) mentions that there is a pathway accessible to 'B' plot. It was also contended that the share value calculated by the F.A.O.(R.O.)No.13/2019 ## -:7:- Commissioner was wrong. The share lit shows that there were not many improvements and those available were accurately calculated. 14. It is not a disputed fact that on precise arithmetic calculation, share of the respondent cannot exceed 1.60 cents. But instead, she was allotted 2.60 cents. This is for the manifest reason that 'B' plot stood separated by a sub lane from the rest of the property situated close to the lane on the opposite side. It is this area which consisted of house building was allotted to the plaintiffs. 'B' plot is not capable of further division and was therefore allotted as a single unit to the respondent. 15. After hearing counsel appearing on both sides and looking at the materials placed on record, I am satisfied that the Advocate Commissioner has made a fair and equitable distribution of the shares and there is no reason to interfere with the allotment made by him. If at all the matter is sent back, I am satisfied that no useful purpose would be served. In my anxious view, better allotment than what was made by the Advocate Commissioner may not be possible F.A.O.(R.O.)No.13/2019 -:8:- in this case if at all the plan is set aside and fresh one is called for. In the result, the appeal is allowed setting aside the impugned order of remand dated 30.01.2019 and it is ordered that the final decree dated 30.06.2016 shall stand restored. All pending interlocutory applications will stand closed. Sd/- ## T.V.ANILKUMAR,JUDGE DST //True copy/ P.A.To Judge