Failure to assess two Advocate Commissioner reports in final decree proceedings violates equitable allocation principles.

JUDGMENT

The plaintiffs in a suit for partition has come up in the appeal aggrieved by the non-application of the mind by the Munsiff Court, Parappanangadi, in a final decree proceedings.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. O.S. No. 157 of 2003 instituted for partition of the plaint schedule property. By judgment and decree dated 20.07.2005, the suit was decreed and plaint schedule properties were directed to be divided into three equal shares and the plaintiffs were directed to be allotted 2 such shares separately. The dispute in the present case centers around item No. 2 of the plaint schedule which consists of 54.25 cents.

2.2. In execution of the preliminary decree, I.A. No. 1289 of

2005 was filed for passing of final decree. In the final decree proceedings, an Advocate Commissioner was appointed by the Trial Court who had filed his report and sketch which were marked as Exts.

C1 and C1(a) respectively. In Ext. C1(a) sketch, the property was divided into 3 equal shares and the property marked as ‘L’ was allotted to the share of the defendant. Finding that the property allotted to the defendant is having a road frontage and that the plaintiffs does not have any other property to reside and they are residing in a rented house, I.A. No. 541 of 2007 was filed for remitting the report of the Advocate Commissioner. The said application was allowed and the Advocate Commissioner’s report was remitted and a fresh report was solicited. In the 2nd report, the Advocate Commissioner reallocated the shares which are suitable to the plaintiffs and filed Exts. C2 report and C2(a) plan. Thus, two reports and two plans were before the Trial Court.

2.3. The Trial Court, without having discussed the acceptability of the two reports and plans and also not having accessed which plan is more suitable to the facts of the case, proceeded to accept Ext. C1(a) plan without any discussion and passed a final decree. Interestingly, Ext. C2 report was also directed to form part of the final decree. To what extent Ext. C2 report has a bearing on the final decree not seen explained by the Trial Court in its judgment dated 16.07.2008. Aggrieved, the plaintiffs preferred A.S. No. 70 of 2008 before the Sub Court, Tirur, and by judgment dated 22.11.2014, the same was dismissed and hence, the present appeal.

3. This Court, by Order dated 24.10.2025, admitted the appeal on the substantial questions of law as follows:

Whether the Courts below were “(i)

justified in ignoring to determine the issue relating to mesne profits by final decree as it is stated in preliminary decree that profits if any and the party who is liable to pay it will be decided at final decree stage?

(ii) Whether the Courts below went wrong while allotting the shares to the appellants/plaintiffs and respondent/defendant ignoring the owelty or real value of the shares? (iii) Whether the Courts below went wrong in its finding that the appellants/plaintiffs are not entitled for any reservation of a specific share ignoring the fact that the first appellant/first plaintiff is a person not having residential house?”

4. Heard Sri. K. Rakesh, the learned Counsel appearing for the appellants and Sri. Harish R. Menon, the learned Counsel appearing for the respondent.

5. The learned Counsel appearing for the appellants placed reliance on the Division Bench decision of this Court in Laly Joseph @ Laly Sebastian v. K. U. Francis [2023 3 KHC 678] to contend for the preposition that there were two reports before the Trial Court, the acceptability