The final decree in a partition suit must comply with the preliminary decree, which is binding, and any deviations must be justified under proper legal procedures.

JUDGMENT :

C.PRATHEEP KUMAR, J.

The contesting defendants, namely defendants 2, 3 and 5 to 7, in O.S. No. 117 of 2002, on the file of the Sub Court, Kochi, are the appellants in RFA 208 of 2019. Additional defendant no. 13 in the above suit is the appellant in RFA 270 of 2020. Both these appeals are filed against the final judgment and decree passed by the trial court in the above suit for partition on 14.11.2018. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court. )

2. The plaint schedule properties originally belonged to the late Mr. K.B. Jacob, who died intestate in 1928. Sri K.B. Jacob was survived by his six sons and a daughter. All the seven children of K.B. Jacob died before the present suit was filed. The suit was originally filed by deceased Maya Reddy, the wife of the first respondent and mother of the second respondent against 14 defendants. Out of which, defendants 13 and 14 are assignees of the other defendants. Altogether there were nine items of properties which are scheduled as plaint 'A' to ' I' schedules. Out of which 'A', 'B', 'C' and 'I' schedules are occupied by Kudikidappukars. 'F', 'G' and 'H' schedules are paddy fields situated at Palluruthy, and plaint 'D' and 'E' schedules, consisting of about 1 acre of landed property and a large residential building which situated in the middle of the said property is the prime property available for partition and the bone of contention between the parties.

3. After rejecting the plea of adverse possession and limitation, the trial court passed a preliminary decree on 28.10.2004 holding that the plaintiff is entitled to get 1/4^th share from the plaint schedule properties. The preliminary decree further states that the plaintiff is entitled to claim mesne profits from defendant nos. 1 to 3 and 5 to 7. As per the preliminary decree, document Nos. 1436 of 1988 and 1069 of 1997 (Exts.A1 and A3) were held not binding on the plaintiff and defendants 8 to 12. The court further held that document No. 2851 of 1994 (Ext.A2) is null and void. However, the trial court ordered that the property sold to defendants 13 and 14 as per Exhibit A1 and A3 documents and the property covered by Exhibit A2 gift deed, will be allotted to the share of defendants 1 to 7 in the final decree proceedings.

4. Though the contesting defendants challenged the above preliminary decree before this court by filing RFA 255 of 2005 , the same was dismissed by this Court on 9.11.2023, confirming the preliminary decree and as such the preliminary decree became final. Thereafter the legal representatives of the deceased plaintiff filed a final decree application before the trial court as FDA No. 620 of 2011, in which an Advocate Commissioner and surveyor were deputed and they filed a commission report and sketches, which were marked as Exhibit C1 and C1(a) to C1(e) respectively, on 9.2.2015. Then the commissioner filed an interim report which was marked as Exhibit C2 and another report filed by a mediator was marked as Exhibit C3. Thereafter, on 14.11.2018, the trial court passed a final decree directing sale of 'D' and 'E' schedule properties in auction and to divide the sale proceeds among the share holders. At the same time, the trial court accepted the commission report in respect of the other items of properties. Aggrieved by the above final judgment and decree, the contesting defendants preferred RFA 208 of 2019 and the 13^th defendant preferred RFA 270 of 2020.

5. Now the point that arises for consideratio