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KULSOM BEEVI v. KASSIM PILLAI JAMALUDEEN - RSA No. 208 of 2005  RD-KL 75 (30 June 2005)
IN THE HIGH COURT OF KERALA AT ERNAKULAMRSA No. 208 of 2005()
1. KULSOM BEEVI, W/O.SAINUDEEN,
2. SAINUDEEN SULAIMAN OF DO.DO.
3. KULSOM BEEVI AYISHA BEEVI, DO.DO.
4. KULSOM BEEVI NOORJAHAN OF DO.DO.
5. SAINUDEEN SALIM OF DO.DO.
6. SAINUDEEN SHAJAHAN OF DO.DO.
7. ASUMA BEEVI, W/O.LATE MYTHEEN KUNJU,
8. ASUMA BEEVI NOORJAHAN OF DO.DO.
9. ASUMA BEEVI SHARMILA OF DO.DO.
10. MYTHEEN KUNJU BADUSHA OF DO.DO.
11. MYTHEEN KUNJU NOUSHAD OF DO.DO.
1. KASSIM PILLAI JAMALUDEEN,
2. MEERA UMMAL DEEPATHUMMAL,
3. MUHAMMED KANNU ABOOBACKER,
4. S. LATHEEFA, KADAYILVILAKATHU VEEDU,
5. MYTHEEN KUNJU NAZEER, DO.DO.
6. LATHEEFA NAZEER BEGUM,DO.DO.
7. SHAJEER OF DO.DO.
8. SUDHEER OF DO.DO.
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.P.GOPALAKRISHNAN NAIR(COVEATOR)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated : 30/06/2005
O R D E R
M.N.KRISHNAN, J.j j R.S.A.No.208 of 2005 j j
Dated this the 30th day of June, 2005j j
j j PL 55 SP 2 TM 3 BM 3 ((HDR 0 RSA 208/2005 # )) HE 1 This is an appeal preferred against the judgment in A.S.No.113 of 2004 on the file of the Sub Court, Neyyattinkara. The brief facts necessary for the disposal of the appeal are stated as follows:
2. I.A.No.2921 of 2002 is a final decree application filed by the 1st defendant in O.S.No.205 of 1978 of the Munsifff's Court, Neyyattinakara. After a long battle it has been declared that plaintiffs are entitled to 4/13 shares, 1st defendant 6/13 shares and defendants 2 and 3 together 3/13 shares. It was also decided that the plaintiffs can move for redemption of the property allotted to them. It was also directed that in the final decree application the question whether B schedule forms part of A schedule has to be decided. A Commissioner was appointed in the matter and he had submitted a plan and report. Accepting the Commissioner's plan and report the lower court passed a decree allotting DEA13, A4 TUA3 A12 plots in C1(a) to the 1st defendant. It also found that plaint B schedule is not part of A schedule. An appeal was preferred before the Sub Court, Neyyattinkara which also finally concurred with the decision of the lower court. It is aggrieved by that decision the second appeal is filed.
3. This court had framed 5 questions of law as
substantial questions invoved in this case which are
"1. Are the lower courts entitled to ignore the i directions in the preliminary decree and pass a final decree destroying the rights of the plaintiffs?
2. Is not the final decree application namely i I.A.No.2921 of 2002 barred by principles of Order 9 Rule 9 CPC?
3. Are the lower courts justified in passing a i final decree on the basis of a commission report and plan which are not prepared as per the description of plaint A and B schedule properties?
4. When there is a preliminary decree for i partition of plaintiffs' 4/13 share and when the plaintiffs have filed a commission application for allotment of their share and when the court has allowed the said commission application, can the lower court refuse to grant a final decree allotting the share of the plaintiffs?
5. Have not the lower courts perversely and i erroneously appreciated the evidence in the case in passing the impugned final decree and judgment?" Point No.2
4. This point deals with the question whether I.A.No.2921/2002 is barred by principles of Order IX Rule 9 C.P.C.. Learned counsel for the appellants did not press it very much. But since a point of law is raised it has to be answered. It can be seen from the judgments of the lower courts that an earlier application I.A.No.2337/1987 was filed for passing a final decree. It was challenged in appeal and the appellate court set aside that order and also set aside the commissioner's plan and report. After the remand it appears that the said I.A. was not prosecuted before the lower court and therefore it was dismissed. Thereafter the 1st defendant moved I.A.No.2921/2002 for passing a final decree. The contention is that in the light of the dismissal of the earlier application the present petition will not lie and it is barred by principles of Order IX Rule 9. It has to be born in mind that the final decree proceeding is a continuation of a suit and it cannot be dismissed for default. It is also equally settled principle that there is no bar of limitation for filing an application for final decree. In this case it has to be stated that by filing the present application there is only revival and so it can be only a continuation of the proceedings and there cannot be any bar of res judicata and there cannot be any bar under the principles of Order IX Rule 9 C.P.C.. Points 1, 3, 4 & 5.
5. These points are answered together for the sake of convenience. It is necessary to extract a brief account of the background of the litigation before entering into the details. As per the preliminary decree passed the plaintiffs, viz., Sainudeen and Mytheen Kunju are entitled to 4/13 shares, D1 Jamaludeen is entitled to 6/13 shares and Meera Ummal and Aboobaker jointly are entitled to 3/13 shares. The plaintiffs got 4/13 as per Ext.A4 executed by Mohammed Haneefa, Isha Beevi and Mohammed Pathummal, daughter of Isha Ummal , who are the children of Meera Ummal. This Meera Ummal had 5 sons and 3 daughters. Under the Muslim Law son is entitled to get double the share of the daughter and therefore by purchase from one son and two daughters the plaintiffs had obtained 4/13 shares. It is also to be stated that final decree petitioner is the 1st defendant in the suit. Respondents 1 and 2 as they stood originally were the plaintiffs and respondents 3 to 5 were defendants 2 to 4. During the pendency of the case the second plaintiff died and his legal representatives are respondents 6 to 10 and on the death of the 1st plaintiff her legal representatives are respondents 16 and 21 and on the death of the 4th defendant the legal heirs are R11 to R15.
6. The work that had to be done by the Commissioner in the suit was to divide A schedule property into proportionate shares as ordered in the preliminary decree and also to find out whether B schedule is a part of A schedule.
7. Learned counsel for the appellants very strongly contends before me that the Commissioner has gone totally wrong in identifying A schedule property and therefore his report and plan cannot be accepted for a proper adjudication of the case. I feel this contention raised by the learned counsel for the petitioners is not correct for the following reasons. There is no dispute regarding the total property of 62 cents which is bounded on all sides by clear demarcating walls, etc. The Commissioner has reported that the entire property including A schedule is marked as A to LMN to R, R to XYZ having a total extent of 60 cents and 860 sq. metres. Immediately to the south from the northern boundary is 9 cents of property which is mentioned in A1 and it is marked by the Commissioner as AB A10 A1W XYZ. A description of the schedule of 4 1/2 cents in A1 property would show that it is the property which is just situated south of that 9 cents. Therefore the Commissioner has marked A schedule property as BCDE A13 A4 TUVWA1 A10. He has also stated in the report that a portion of the hotel in the 9 cents and Hindustan Medicals is there in the said 4 1/2 cents.
8. So a reading of the Commissioner's report would conclusively indicate that he had identified the plaint A schedule property with respect to the documents and has marked it in the plan and the report. Both the courts below also found that the said identification of the property by the Commissioner is absolutely proper and therefore held that A schedule is the property as shown by the Commissioner in the plan Ext.C1A. Then the Commissioner goes on to allot the property to the 1st defendant. According to the Commissioner the property that can be allotted to the 1st defendant who is the final decree petitioner is DEA13 A4 TUA3 A12. The Commissioner had just demarcated the other property which is the 7/13 shares as BCD A12 A3 UVW A1 A10. The Commissioner has specifically stated that he did not separate the 4/13 and 3/13 shares on account of the non-submission for the same by the plaintiffs. As far as A schedule property is concerned the Commissioner had done the work correctly.
9. Learned counsel for the appellants would submit before me that in spite of objections the court had not considered it and therefore it has to be set aside. Both the courts below had considered the evidence of the appellants herein and also the evidence of the Commissioner and had held that the demarcation is done in the best possible way and it need not be disturbed at all.
10.Then the crucial question to be decided is whether B schedule is a part of A schedule. B schedule property is a property having an extent of 1 cent with building. The appellate court has extracted the description of the B schedule in paragraph 12 of its judgment, which reads as follows: The lower appellate court considered the identification as follows: The Commissioner has plotted the 11 cents aforesaid as ABCD A12 A3 UVWXYZ. This extent would include therein the northern portion of plaint A schedule property and the 9 cents which lies north thereof. The 2 cents of property and the two shop rooms therein in B schedule to EXt.A2 is plotted as DEFG, A15, !3, A12 and the B schedule is plotted as FG, A15, A14 plot and the shop room therein Ext.C1(a). The appellate court found that on a close scrutiny of Ext.C1(a) reveals that the plaint B schedule property has been identified strictly in accordance with the description in the plaint and the B schedule to Ext.A2 and the contention advanced by the learned counsel for the appellants that the property has never been identified is without any substance. So the Commissioner's report and plan would reveal that the property described as B schedule in the plaint is FGA15 A14. This FGA15, A14 is not a part and parcel of A schedule or in other words the property of 4 1/2 cents described in A schedule does not take in the property described in B schedule. Learned counsel for the appellants contends that B schedule is a part of A schedule and they are entitled for allotment of B schedule with their share and so the plan and report has to be rejected. The Commissioner, who had inspected the property with the assistance of the Surveyor had found that A schedule property and B schedule property are different and B schedule never forms part of A schedule. It is understandable that there is a decree in favour of the 1st defendant against the plaintiffs for redemption of B schedule property and the moment it is found that B schedule is not part of A schedule then naturally the 1st defendant is entitled to get redemption of the property by executing the decree passed in a suit which had been decreed in his favour.
11. So from an over all analysis of the entire materials I also agree with the finding of the courts below. It has been further held that these are all questions of facts which had been found by the courts below after adducing evidence and appreciating it in the correct perspective. It is not correct for this court to sitting in second appeal to reverse the concurrent finding of facts.
12. It is true that the fraction of the plaintiffs' share is not separately allotted. It has to be born in mind that the plaintiffs instead of attempting to settle the dispute between the parties is even challenging the identification of A schedule properties which was not in dispute at any point of time. The only attempt of the plaintiffs is to see that the decree obtained by the 1st defendant regarding B schedule property is put into suspended animation so that he can enjoy the property for a considerable length of time. It was his non-co-operation and non-supply of materials that has caused the Commissioner to allot the share of plaintiffs and defendants 3 and 4 together. So just because it was not separately carved out one cannot hold that the final decree passed by the courts below suffers from any legal infirmity. From these discussions, I find that the second appeal is devoid of merit and all the questions formulated are answered against the appellants. Therefore the appeal is dismissed without any costs. JN
M.N.KRISHNAN, JUDGE.cdp PA
G. SIVARAJAN, J.
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