Kerala High Court
M.A.Yousuf vs M.A.Abdul Khadar on 8 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
FAO (RO) NO. 136 OF 2018
AGAINST THE DECREE AND JUDGMENT DATED 08.06.2018 IN AS NO.12/2015
OF THE ADDITIONAL DISTRICT COURT NO.III, KASARAGOD
AGAINST THE JUDGMENT AND FINAL DECREE DATED 17.09.2014 IN FDIA
NO.50/06 IN OS NO.63/05 OF THE MUNSIFF COURT, KASARGOD
APPELLANTS/RESPONDENTS 1 AND 5 IN AS/PETITIONER AND RESPONDENT
NO.6 IN FDIA NO.50/06/PLAINTIFF AND 6TH DEFENDANT IN OS:
1 M.A.YOUSUF
AGED 73 YEARS,
S/O. LATE ABBAS,
RESIDING AT BENDICHAL,
THEKKIL VILLAGE,
KASARAGOD TALUK AND DISTRICT,
P.O THEKKIL 671 541.
2 SUHARA
AGED 68 YEARS, D/O. LATE ABBAS,
RESIDING AT PADINJARA,
MELPARAMBA IN KALNAD VILLAGE,
KASARAGOD TALUK AND DISTRICT,
P.O KALNAD 671 317.
BY ADVS.
SRI.K.SHRIHARI RAO
SMT.N.SHOBHA
RESPONDENTS/APPELLANTS 2 TO 4/RESPONDENTS 2 TO 4/RESPONDENTS 6 TO
16/SUPPLEMENTAL APPELLANTS 5 TO 11 IN AS/RESPONDENTS 7 TO
9/RESPONDENTS 1,2,4 AND 5/SUPPLEMENTAL RESPONDENTS 10 TO 19 IN
FDIA/DEFENDANTS 7 TO 9/DEFENDANTS 1,2,5 DECEASED 3RD AND 4TH
DEFENDANT IN THE SUIT:
1 M.A.ABDUL KHADER
AGED 71 YEARS, S/O. LATE ABBAS,
RESIDING AT KOLIKUNNU IN BARE VILLAGE OF HOSDURG
TALUK,KASARAGOD DISTRICT, P.O BARE-671 319.
2 M.A SUBAIR
AGED 67 YEARS, S/O. LATE ABBAS,
RESIDING AT KOLIKUNNU IN BARE VILLAGE OF HOSDURG
TALUK,KASARAGOD DISTRICT, P.O BARE 671 319.
FAO (RO) NO. 136 OF 2018
2
3 M.A MUTHALI
AGED 63 YEARS, S/O. LATE ABBAS,
RESIDING AT KOLIKUNNU IN THEKKIL VILLAGE,
KASARAGOD TALUK AND DISTRICT, P.O BARE -671 319.
4 M.A NABEESA
AGED 77 YEARS, D/O. LATE ABBAS,
AGRICULTURISTS, RESIDING AT BENDICHAL,
THEKKIL VILLAGE,KASARAGOD TALUK AND DISTRICT,
P.O THEKKIL 671 317.
5 MOHAMMED ASHRAF
AGED 54 YEARS, S/O. NABEESA,
GRANDSON OF LATE ABBAS RESIDING AT BENDICHAL,
THEKKIL VILLAGE,KASARAGOD TALUK AND DISTRICT,
P.O THEKKIL 671 541.
6 MAIMOONA
AGED 69 YEARS,
D/O. LATE ABBAS, RESIDING AT BENDICHAL,
THEKKIL VILLAGE,KASARAGOD TALUK AND DISTRICT.
7 BEEPATHUMMA
AGED 79 YEARS,
W/O. LATE MOIDEEN KUNHI,
EYAYLA THEKKIL VILLAGE,
KASARAGOD TALUK AND DISTRICT,
P.O. THEKKIL 671 541.
8 SURYA,
AGED 55 YEARS
D/O. LATE MOIDEEN KUNHI,
W/O. ABDUL RAHIMAN
RESIDING AT ALEENA MANZIL, MUTTUMTHALA,
AJANOOR VILLAGE,
HOSDURG TALUK AND KASARGOD DISTRICT.
PO. KOLAVAYAL 671 531.
9 ABDUL SATHAR
AGED 53 YEARS, S/O. LATE MOIDEEN KUNHI,
W/O. ABOOBACKER, RESIDING AT EYYALA,,THEKKIL
VILLAGE, KASARAGOD TALUK AND DISTRICT,
P.O. THEKKIL 671 541.
10 SAKEENA E.M
AGED 51 YEARS,
D/O. LATE M.A MOIDEEN KUNHI,
W/O. ABOOBACKER, RESIDING AT EYYALA,,
THEKKIL VILLAGE,KASARAGOD TALUK AND DISTRICT,
P.O. THEKKIL 671 541.
FAO (RO) NO. 136 OF 2018
3
11 MAJITHA E.M
AGED 49 YEARS, D/O. LATE M.A MOIDEEN KUNHI,
W/O. ABOOBACKER, RESIDING AT EYYALA,
THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT
P.O. THEKKIL 671 541.
12 SARABI E.M
AGED 47 YEARS, D/O. LATE M.A MOIDEENKUNHI,
W/O. MAJEED, RESIDING AT MAZNA MANZHIL,
PADOOR ROAD, CHATTANCHAL, THEKKIL VILLAGE,
KASARAGOD TALUK AND DISTRICT,
P.O THEKKIL 671 541.
13 ABDUL LATHEEF
AGED 45 YEARS, S/O. LATE M.A MOIDEEN KUNHI,
RESIDING AT EYYALA,,THEKKIL VILLAGE,
KASARAGOD TALUK AND DISTRICT,
P.O. THEKKIL 671 541.
14 SHOUKATHALI
AGED 43 YEARS, S/O. LATE M.A MOIDEEN
KUNHI,RESIDING AT EYYALA,,THEKKIL
VILLAGE,KASARAGOD TALUK AND DISTRICT
P.O. THEKKIL 671 541.
15 KAIRUNNESA
AGED 41 YEARS, D/O. LATE M.A MOIDEEN KUNHI,
W/O. HANEEFA, EYYALA,,
THEKKIL VILLAGE,
KASARAGOD TALUK AND DISTRICT,
P.O. THEKKIL 671 541.
16 ABDUL SAMAD
AGED 39 YEARS, S/O. M.A MOIDEEN KUNHI,
RESIDING AT EYYALA,,THEKKIL VILLAGE,
KASARAGOD TALUK AND DISTRICT,
P.O. THEKKIL 671 541.
17 ABDUL NAZAR M.M
AGED 47 YEARS, S/O. LATE M.A MOHAMMED
KUNHI,RESIDING AT MAKKOD HOUSE, EYYALA,
THEKKIL VILLAGE,
KASARAGOD TALUK AND DISTRICT,
P.O, THEKKIL 671 541.
18 RASHEENA M.M
AGED 45 YEARS,
D/O. LATE M.A MOHAMMED KUNHI,
FAO (RO) NO. 136 OF 2018
4
W/O. ABDULLA KUNHI,
REPRESENTED BY HER GENERAL POWER OF-
ATTORNEY HOLDER, THE 5TH APPELLANT ABDUL NAZAR,
RESIDING AT MAKKAL HOUSE, EYYALA THEKKIL (P.O),
KASARAGOD DISTRICT 671 319.
19 AHAMED RAFI M.
AGED 43 YEARS, S/O. LATE M.A MOHAMMED
KUNHI,RESIDING AT MAKKAD, KALNAD VILLAGE,
KASARAGOD TALUK AND DISTRICT,P.O KALNAD 671 317.
20 ABBAS M.M
AGED 41 YEARS, S/O. LATE M.A MOHAMMED
KUNHI,RESIDING AT MAKKOD HOUSE,EYYALA,
THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT,
P.O. THEKKIL 671 541.
21 ABDUL NISSAR M.M
AGED 38 YEARS, S/O. LATE M.A MOHAMMED KUNHI,
RESIDING AT MAKKOD HOUSE,
KALNAD VILLAGE, KASARAGOD TALUK AND DISTRICT,
P.O KALNAD 671 317.
22 TAHIR M.A
AGED 30 YEARS,
S/O. M.A MOHAMMED KUNHI,
RESIDING AT MAKKOD HOUSE,
KALNAD VILLAGE,
KASARAGOD TALUK AND DISTRICT,
P.O KALNAD 671 317.
23 ABDUL ASHIF M.M
AGED 28 YEARS, S/O. M.A MOHAMMED KUNHI,
REPRESENTED BY HIS GENERAL POWER OF-
ATTORNEY HOLDER, THE RESPONDENT NO. 5 ABDUL
NAZAR M.M, RESIDING AT MAKKOD, THEKKIL VILLAGE,
KASARAGOD TALUK AND DISTRICT,
P.O THEKKIL 671 319.
R1, R2, R3, R6 & R17 BY ADVS.
SRI.SURESH KUMAR KODOTH
ANTONY BINU K.P.
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
FAO (RO) NO. 136 OF 2018
5
JUDGMENT
The order of remand by the first appellate
court is under challenge on the ground that
there is no necessity to have a remand of the
matter, since it is a final decree passed
based on a preliminary decree, which has
attained finality and conclusiveness.
2. Inter alia, the learned counsel for
the respondents submitted that, the remand was
ordered on the ground that the Commissioner
who visited the property, in furtherance of
final decree application, has not identified
and located the property in consonance with
the boundaries made mentioned in the decree
and there is a finding to that effect in the
impugned order of the trial court. The
question of inequity was also taken up. As
such the order passed in the final decree was
set aside by the first appellate court and
FAO (RO) NO. 136 OF 2018
remanded the matter back to the trial court
for a fresh consideration, so as to identify
and locate the property and to have a
partition by means and bounds. Hence, the
same deserves no interference. But equity
shall be worked out at the final decree stage.
The appeal fails, dismissed. No costs.
There will be a direction to the trial court
to expedite the disposal within a time
schedule of four months from the date of
appearance of the parties, for which, the
parties shall appear before the trial court on
29.09.2021.
Sd/-
P.SOMARAJAN
JUDGE
SPV
