Point of Law: Acquisition of Land – Judicial discipline demands consistency in rendering judgments. A Judicial Officer may hold different views on various aspects. A Judicial Officer may err and pass contradictory orders inadvertently. But once it is brought to the knowledge of the Judicial Officer, he is duty bound to keep track of consistency. Inconsistent orders passed by a judicial officer almost in the same fact situation, and that too on the same day, would give rise to complaint of discriminatory treatment, which will undermine the people's faith in judicial system and the rule of law. It will cause resentment and anguish and make an imprint in the mind of the litigant that he has been discriminated. A Judicial Officer may err and pass illegal orders, but he shall not err in consistency

JUDGMENT :

1. The plaintiffs 1 to 8 filed a suit as O.S.No.434/2013 of the first Additional Sub Court, Kozhikode (hereinafter referred to as 'the trial court') for partition of the plaint 'C' schedule property and the separate possession thereof. The trial court passed a preliminary judgment and decree on 23.2.2018. The 1st defendant challenged the preliminary judgment and decree in A.S.No.85/2018 of the Additional District Court-IV, Kozhikode (hereinafter referred to as 'the first appellate court'). The first appellate court dismissed the appeal by judgment and decree dated 3.7.2019. Hence, this Regular Second Appeal by the 1st defendant. The respondents in this appeal are the plaintiffs 1 to 6, 8, legal heir of the 7th plaintiff and defendants 2 to 8 respectively. The parties are hereinafter referred to as 'the plaintiff' and 'the defendant' according to their status in the trial court unless otherwise stated.

2. The plaint 'A' schedule is the genealogy of the parties. The plaint 'B' schedule property popularly known as 'Chunkathara Paramba' is having an extent of 2 acres 91½ cents and the plaint 'C' schedule is having an extent of 2 acres 36.38 cents is a part of the plaint 'B' schedule property. The plaint 'D' schedule is having an extent of 56.62 cents of land with a Dargah and is also a part of plaint 'B' schedule property. It was contended that the plaintiffs are the absolute owners of the plaint schedule property having obtained the release of the rights of the other co-owners. Thus, the plaintiffs are entitled to 2016/2520 shares and the 1st defendant is entitled to 504/2520 shares in the plaint 'C' schedule property. The question as to whether the plaint 'D' schedule is a wakf or not is excluded from partition for the reason that the matter is pending adjudication before the court.

3. The defendant filed written statement contending that the property has been used from time immemorial as a burial ground and for devotional purposes of the members of the organization. The 1st defendant claimed the customary right to bury the dead and to conduct religious services in the property as per custom prevalent in the community.

4. There was another suit as O.S.No.535/2010 filed by the 9th respondent, namely, C.Jasmine for declaration and consequential injunction. It was contended that the plaint schedule property originally belonged to Sayed Ahammed Kutty Thangal, father of the maternal grandfather of the plaintiff and the 2nd defendant in that suit. It was further contended in that suit that often religious discourses are scheduled inside the Dargah in the plaint schedule property to enlighten the followers and every year 'Andunercha' is held in the plaint schedule property to commemorate the death anniversary of Sayed Ahammed Kutty Thangal. The 9th respondent claimed that she is entitled to 2/168 shares plus 1/24 shares over the plaint schedule property in the said suit.

5. Both the suits were tried together and O.S.No.434/2013 was taken as the leading case. On the side of the plaintiffs, the 6th plaintiff in O.S.No.434/2013 was examined as PW1 and marked Exts.A1 to A24. The 1st defendant in O.S.No.434/2013 was examined as DW1 and another witness as DW2. The plaintiff in O.S.No.535/2010 was examined as DW3 and marked Exts.B1 to B30.

6. By judgment dated 23.2.2018 the trial court 1st held that the defendant is a co-owner of the property and the plaint 'C' schedule property is partible. Consequently, preliminary judgment and decree was passed in O.S.No.434/2013 holding that the plaint 'C' schedule property shall be divided by metes and bounds into 2520 shares of which 2016 share has to be allotted to the plaintiffs jointly and 1st 504 shares to the defendant. The trial court dismissed O.S.No.535/2010 accordingly.

7. The 1st defendant filed A.S.No.85/2018 challenging the judgment and decree in O.S.No.434/2013 before the District Court, Kozhikode. 7th During the pendency of the suit, the original plaintiff died and his legal repre