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2025 Supreme(Online)(Ker) 45522
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Murali Purushothaman, J
Ponnamma – Appellant
Versus
Remani – Respondent
OP(C) NO. 962 OF 2020
For the Appellants/Petitioners: T.G.Sunil (Pranavam)
For the Respondents: T.Jayakrishnan, R.Krishnakumar (Cherthala)
Partition proceedings must reflect proper valuation and division based on property nature to ensure equitable outcomes.
Headnote:(A) Code of Civil Procedure, 1908 - Section 151 - Partition suit - The petitioners challenged the commission report that purportedly did not reflect a proper division by metes and bounds considering varying property nature - The court remitted the matter back for fresh consideration ensuring proper valuation of the property is undertaken. (Paras 1, 5, 7, 8)
(B) Original jurisdiction of the High Court - A crucial aspect of legitimate partition proceedings entails recognizing the distinct valuation of varying property types prior to division by metes and bounds - The findings asserted that the initial report was inadequate for fulfilling the statutory requirements necessary for partitioning mixed-use land. (Paras 6, 7, 8)
Facts of the case:
This case revolves around a partition suit filed by the respondent in which a preliminary decree for partition allotted a 1/5th share to the respondent, leading the petitioners to contest the dimensions and nature of the property being partitioned, thereby necessitating the commission reports to align with legal requests for thorough assessment.
Findings of Court:
The Court directed that the commission reports must substantiate that the division is feasible, with due regard to the type of land involved, especially differentiating between silica sand and agricultural land, to ensure equitable partition.
Issues: The primary issues included whether the commission report was consistent with judicial directives regarding property divisions and whether the survey accurately reflected the mixed-use characteristics of the disputed land.
Ratio Decidendi: The court held that the Commission's findings must adequately follow legal stipulations and account for the nature of the property in question before verdicts on partition can be considered valid and enforceable, thereby resulting in the remittance of the commission report.
Result: The original petition fails and is, accordingly dismissed.
| Table of Content |
|---|
| 1. facts about the original partition suit and involved parties. (Para 1 , 2) |
| 2. court's discussion on the commission's findings and nature of the property. (Para 3 , 4 , 7) |
| 3. petitioners' arguments regarding the inadequacy of the commission report. (Para 5 , 6) |
| 4. court's requirement for property evaluation in partition. (Para 8) |
JUDGMENT
The petitioners are the defendants in O.S.No.614 of 2002 on the files of the Additional Munsiff Court, Cherthala. The suit is one for partition filed by the respondent. Ext.P1 is the preliminary decree for partition allotting 1/5th share to the plaintiff/respondent over the plaint schedule property having an extent of 19 cents. In the final decree application, a Commissioner was deputed to divide the property and he filed Ext.P3 report and plan. The petitioners filed Ext.P4 application to set aside the Commission Report and plan to which the respondent filed Ext.P5 objection. Ext.P4 application was dismissed by the Trial Court as per Ext.P6 order. Challenging Ext.P6, the petitioner had approached this Court by filing O.P.(C) No.618 of 2016 contending that the Commissioner, while preparing the report and plan has not taken the value of the respective properties or its portion thereof, so as to have a division by metes and bounds by giving 1/5th share to the plaintiff. This Court, by Ext.P7 judgment, allowed the said original petition and set aside Ext.P6 order and remitted the matter back to the Trial Court in order to ascertain whether the report actually reflects a division by metes and bounds in accordance with the nature and character and to verify whether the valuation of the property was done based on its nature and character for the purpose of separation of 1/5th share to the plaintiffs. The relevant portion thereof reads as follows:
“
The property which is the subject matter of the decree comes to 19 cents. Even going by the order of the trial court, it is clear that in some portions, there is deposit of silica sand. Some portion of the property is lying as paddy field and some other portion is lying as reclaimed land. So while making division, the nature of the property in different portions has to be taken into consideration. Therefore, in order to have a proper valuation, division by metes and bounds and for separation of 1/5th share, it is necessary to value the different portions of property in accordance with its nature. On the other hand what is done by the Commissioner is purely on the basis of measurement of the property, which is not permissible when the property is having different nature and different quality. So the report submitted by the Commissioner cannot be accepted and it is liable to be set aside. The lower court has not considered the objection of the petitioners herein in its proper perspective so as to have a better understanding of the report submitted by the Commissioner. Hence, I am of the view that it is fit and proper to remand the matter back to the lower court for fresh consideration.
In the result, this petition is allowed. The impugned order is set aside. The matter is remanded back to the lower court in order to ascertain whether the report submitted by the Commissioner actually reflects a division by metes and bounds in accordance with the nature and character and to verify whether the valuation of the property was done based on its nature and character for the purpose of separation of 1/5th share to the plaintiffs.”
2. Pursuant to Ext.P7, the Trial Court passed Ext.P8 order remitting back the Commission Report and plan for fresh consideration. The Trial Court directed the Commissioner to ascertain the following points:
1. Whether the entire plaint schedule property is lying as heap of sand?
2. Whether division by metes and bounds is possible?
3. Details regarding the trees and their values, situated in plaint schedule property along with other points mentioned in the petition.”
3. As per the directions in Ext.P8 order, the Commissioner submitt
