A partition decree must exclude property acquired by the government, and compensation for such property should be allocated among the parties according to their shares.

J U D G M E N T

Sathish Ninan, J.

The final decree in a suit for partition is under challenge by the defendants.

2. The plaint schedule property has an extent of 16.43 Ares. The preliminary decree is in the following terms:-

“1) The plaint schedule property shall be divided into six equal shares after deducting 1/3^rd share of the 1^st defendant. Out of it the 1^st plaintiff is entitled to get 1/6^th share.

2) Plaintiffs 2 to 5 are jointly entitled to get 1/6^th share of the plaint schedule property and its separate possession.

3) The cost of the suit shall be bear from the estate.

4) The plaintiffs are entitled to apply for final decree within three months.”

3. In the final decree proceedings a Commissioner was deputed to divide the property in terms of the preliminary decree. He submitted Ext.C1 report and Ext.C1(a) plan dividing the properties in terms of the shares allotted in the preliminary decree. The trial court accepted Ext.C1(a) plan and passed a final decree in terms thereof. The decretal portion reads thus:-

“1. Plot No.1 shown in Ext.C1(a) Plan with the residential house situated therein having an extent of 16.43 Ares is hereby allotted as the share of the 1^st defendant in the suit.

2. Plot No.2 in yellow shade in Ext.C1(a) plan having an extent of 1.17 Ares is hereby allotted to the share of plaintiffs No.2 to 5.

3. Plot No.3 having an extent of 1.71 Ares in green shade in Ext.C1(a) plan is hereby allotted to the 1^st plaintiff as his share.

4. Plot No.8 having an extent of 1.03 Ares in blue shade in Ext.C1(a) plan is set apart as a cartable road for the ingress to and egress from plot Nos.1, 3 to 5.

5. As the right and interest of the other defendants are not declared by the court in the preliminary decree, no order of allotment in respect of the remaining plots is hereby passed.

6. Ext.C1(a) plan will form part of the final decree.

7. Cost of the proceedings will be derived from the estate.

8. Produce the value of Non-judicial-stamp for the purpose of engrossing the final decree in accordance with law.”

4. The defendants are in appeal aggrieved by the refusal on the part of the trial court to take note of their contention that a portion of the property was acquired for the purpose of National Highway.

5. We have heard learned counsel on either side.

6. It is not in dispute before us that a portion of the property, along its western side, has been acquired for the purpose of National Highway. Ext.C1(a) plan was prepared without excluding such portion. Going by Ext.C1(a) plan, the acquired portion has also been allotted to the extent of a sharer. The trial court held,

“even assuming that any portion from the western boundary is acquired, definitely, the government concerned, will give sufficient compensation to the respective owners”.

Since the appellants fail to produce any documents with regard to acquisition before the trial court, the court cannot be faulted for having held so. However, the learned counsel for the appellant drew our attention to page 3 of the Commission Report which indicates that the factum of acquisition was brought to the notice of the Commissioner.

7. Be that as it may, the fact remains that a portion of the property to be partitioned is no longer available in specie since it has been acquired by the Government. The compensation amount consequent on such acquisition is stated to be lying in deposit. It is only appropriate that the actual extent of property available, excluding the acquired portion, be partitioned by metes and bounds and the compensation amount for the acquired property be appropriated between the sharers in the proportion as declared in the preliminary decree.

8. So also, it is to be noticed that on the northern side of the entire property is a PWD road and on the western side is the National Highway for which the acquisition proceedings have happened. There will be difference in the value of the property with National Highway frontage, PWD road frontage, without public road frontage etc. All these a