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2022 Supreme(Online)(KER) 3272
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 8TH DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944 OP(C) NO. 2295 OF 2021 AGAINST THE ORDER DATED 03.03.2021 IN IA 2005/2019 IN OS
516/1990 OF ADDITIONAL SUB COURT,NORTH PARAVUR PETITIONERS:
1 SASIDHARA MENON AGED 67 YEARS S/O.LATE P.R.BALAKRISHNA PANICKER, NANMANNARIL HOUSE, KARIKODE DESOM, MULAMTHURUTHY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682314.
2 N.B.DEVALATHIKA, AGED 62 YEARS D/O.LATE P.R.BALAKRISHNA PANICKER, NANMANNARIL HOUSE, KARIKODE DESOM, MULAMTHURUTHY VILLAGE, S KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682314.
3 N.B.MALATHI, AGED 57 YEARS D/O.LATE P.R.BALAKRISHNA PANICKER, NANMANNARIL HOUSE, KARIKODE DESOM,MULAMTHURUTHY VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT, PIN-682314.
4 N.B.NANDHINI, AGED 54 YEARS D/O.LATE P.R.BALAKRISHNA PANICKER, NANMANNARIL HOUSE, KARIKODE DESOM,MULAMTHURUTHY VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT, PIN-682314.
5 N.B.RADHAKRISHNAN, AGED 51 YEARS D/O.LATE P.R.BALAKRISHNA PANICKER, NANMANNARIL HOUSE, KARIKODE DESOM,MULAMTHURUTHY VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT, PIN-682314.
6 N.B.JAYACHANDRAN, AGED 48 YEARS S/O.LATE P.R.BALAKRISHNA PANICKER, NANMANNARIL HOUSE, KARIKODE DESOM,MULAMTHURUTHY VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT, PIN-682314.
BY ADVS. BOBBY MATHEW KOOTHATTUKULAM S.SHYAM V.S.ARCHANA CHANDRAN RESPONDENTS:
1 SAUDAMINI AMMA D/O.LATE PADMAVATHY AMMA, PAVANA TAIPARAMBU HOUSE, NOW RESIDING AT KURUPPAMKADAVU, PERUVARAM, N.PARAVUR, ERNAKULAM DISTRICT, PIN-683513.
2 VALSALA KUMARI AMMA, AGED 69 YEARS D/O.LATE PADMAVATHY AMMA, PAVANA TAIPARAMBU HOUSE, NOW RESIDING AT KURUPPAMKADAVU, PERUVARAM, N.PARAVUR, ERNAKULAM DISTRICT, PIN-683513.
3 SATHYA BHAMA AMMA, AGED 66 YEARS D/O.LATE PADMAVATHY AMMA, ESTABLISHMENT SECTION, NATIONAL GEOGRAPHICAL RESEARCH INSTITUTE UPPER ROAD, HYDRABAD, ANDRAPRADESH, PIN-500007, NOW RESIDING AT PAVANA THAIPARAMBU HOUSE, VALLUVALLYKARA, KOONAMMAVU.P.O, ERNAKULAM DISTRICT, PIN-653518.
4 LALITHAKUMARI, AGED 61 YEARS D/O.LATE PADMAVATHY AMMA, PAVANA THAIPARAMBU HOUSE, VALLUVALLYKARA, KOONAMMAVU.P.O, ERNAKULAM DISTRICT, PIN-653518.
5 GEETHAMANI AMMA, AGED 56 YEARS D/O.LATE PADMAVATHY AMMA, PAVANA TAIPARAMBU HOUSE, VALLUVALLYKARA, KOONAMMAVU.P.O, ERNAKULAM DISTRICT, PIN-683518.
6 RAVEENDRANATHA PANICKER, AGED 74 YEARS S/O.LATE PADMAVATHY AMMA, PAVANA TAIPARAMBU HOUSE, VALLUVALLYKARA, KOONAMMAVU.P.O, ERNAKULAM DISTRICT, PIN-653518.
7 VIJAYAKUMARA PANICKER, AGED 71 YEARS S/O.LATE PADMAVATHY AMMA, NATIONAL GEOGRAPHICAL RESEARCH INSTITUTE UPPER ROAD, ANDRAPRADESH, PIN-500007, NOW RESIDING AT PAVANA THAIPARAMBU HOUSE, VALLUVALLYKARA, KOONAMMAVU.P.O, ERNAKULAM DISTRICT, PIN-653518.
8 SOMASUNDARA PANICKER, AGED 69 YEARS S/O.LATE PADMAVATHY AMMA, PAVANA THAIPARAMBU HOUSE, VALLUVALLYKARA, KOONAMMAVU.P.O, ERNAKULAM DISTRICT,PIN-653518.
9 ARAVINDAKSHA PANICKER, AGED 59 YEARS S/O.LATE PADMAVATHY AMMA, PAVANA THAIPARAMBU HOUSE, VALLUVALLYKARA, KOONAMMAVU.P.O, ERNAKULAM DISTRICT, PIN-653518.
10 REMADEVI AGED 63 YEARS W/O LATE RAVEENDRANATHA PANICKER, PAVANA THAIPARAMBU HOUSE, VALLUVALLYKARA, KONNAMMAVU P.O, ERNAKULAM DISTRICT, PIN 653518, NOW RESIDING AT PAVANA KRISHNA SREE, NANDIATTUKUNNAM, NORTH PARAVUR PIN 683513 (IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF DECEASED R6 VIDE ORDER DATED
01.12.2022 IN I.A.NO:1/2022)
BY ADVS. FRANKLIN ARACKAL JEENA JOSEPH No Advocate P.D.JAYAN MON THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Dated this the 8th day of December, 2022
['BOBBY MATHEW KOOTHATTUKULAM', '', 'S SHYAM', 'V S ARCHANA CHANDRAN', 'FRANKLIN ARACKAL', '', 'P D JAYAN MON', 'JEENA JOSEPH', 'No Advocate']
J U D G M E N T
The original petition is filed assailing Ext P7 order passed in I.A.No.2005/2019 in O.S.No.516/1990 of the Court of the Additional Subordinate Judge, North Paravur. The petitioners are the defendants 12 to 17 in the suit which was filed by the first respondent, for a decree of partition. The respondents 2 to 9 are the other defendants in the suit. Pending the original petition, the sixth respondent died and the additional tenth respondent has been impleaded as the legal representative of the sixth respondent.
2. The antecedent facts leading to Ext P7 order, in a nut shell, are:
(i) As per Ext P2 supplementary preliminary decree, the petitioners are entitled to 1/ th share in plaint 'C', 'D' and 'E' scheduled properties. In the final decree application filed by the petitioners as I.A.No.1418/2017, the Advocate Commissioner by Ext P3 report has allotted 1/ th share to the
11 petitioners in the three schedules.
(ii) The petitioners have filed Ext P4 objection to Ext P3 report. The petitioners also have filed I.A.No.2005/2019 (Ext P5) to remit the commission report.
(iii) The petitioners have in Ext P4 objection made a request for allotment of their entire 1/
11 share in ‘C’ schedule as a single plot, instead of their shares in 'D' and 'E' schedule, which would be adjacent to their kudikidapu in 'C'
schedule.
(iv) In the final decree application filed by the first respondent, the court below has allotted 08 cents of land to the first respondent in 'C' schedule, instead of separate 1/ shares in schedules 'C' , 'D' and 'E'.
(v) On an erroneous consideration of the facts and materials on record, the court below has dismissed Ext P5 application by the impugned Ext P7 order. Ext P7 orders so far as relates to the order passed in I.A.No.2005/2019 is manifestly wrong and unsustainable in law.
Hence, the original petition.
3. Heard; Sri. Bobby Mathew Koothattukulam, the learned counsel appearing for the petitioners, Sri. Franklin Arackal, the learned counsel appearing for the first respondent and Smt. Jeena Joseph, the learned counsel appearing for the respondents 2 to 9.
4. O.S.No.516/1990 was filed by the first respondent for partition. A preliminary decree was passed in favour of the respondents 1 to 9. Subsequently, at the instance of the petitioners a supplementary preliminary decree was passed, as per Ext P2 which reads as follows:
“Supplementary Preliminary Decree A supplementary Preliminary decree is passed as follows:
1. Petitioners are entitled to 1/ share in
11 plaint C, D, and & E schedule properties. However they are not entitled to claim any right the property which was already set apart to the respondent.
2. Parties are directed to suffer their respective costs.”
5. On a reading of Ext P2, makes it quite evident that the petitioners were allotted 1/ share in plaint ‘C’, 11 ‘D’ & ‘E’ schedule, but with a rider that the petitioners are not entitled to claim any right over the property which is already been set apart to the first respondent.
6. Admittedly, Ext P2 has not been challenged by the petitioners.
7. Thereafter, at the instance of the petitioners, I.A.No.1418/2017 was filed to pass the final decree. The Advocate Commissioner, by Ext P3 report, has allotted the petitioners 1/ shares in the three schedules of the properties. The petitioners filed Ext P4 objection, inter alia, contending that since they have purchased kudikidapu rights in ‘C’ schedule property, they may be granted 1/ share in ‘C’ schedule
11 as a single plot, instead of allotting them shares in ‘D’ and ‘E’ schedule. The court below, after appreciating the rival contentions by the impugned Ext P7 order has held as follows:
“3. In I.A. 2005/2019, the very limited prayer, rather the very limited attempt of the petitioners is to get an allotment proportionate to their share in decree 'E' schedule property, instead of the allotment in the 'D' schedule property. To put it shortly, the petitioners want to avoid any allotment in decree 'D' schedule property which is
