Rekha vs Sunil Kumar
2021 Latest Caselaw 19634 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE P.SOMARAJAN
    FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
                        RFA NO. 252 OF 2020(F)
AGAINST THE JUDGMENT AND DECREE DATED 28/5/2020 IN FDIA 2634/2015
     IN O.S.1156/2011 OF THE II ADDITIONAL SUB COURT,THRISSUR
APPELLANTS-COUNTER PETITIONERS 2 TO4 - DEFENDANTS 2 TO 4:

    1       REKHA, AGED 41 YEARS,
            W/O. MANOJ, REKHA NIVAS (MANGALAMA GOLD COVERING)
            VALATHUNGAL P.O., ERAVIPUAM VILLAGE, KOLLAM.

    2       MINOR SAJANA, AGED 16 YEARS,
            D/O. REKHA, REKHA NIVAS (MANGALAMA GOLD COVERING)
            VALATHUNGAL P.O., ERAVIPUAM VILLAGE, KOLLAM.

    3       MINOR SANJAY, AGED 14 YEARS,
            S/O. REKHA, REKHA NIVAS (MANGALAMA GOLD COVERING)
            VALATHUNGAL P.O., ERAVIPUAM VILLAGE KOLLAM.

            APPELLANTS 2 AND 3 ARE HINDU MINORS REPRESENTED BY
            THEIR NATURAL GUARDIAN AND MOTHER THE 1ST APPELLANT.

            BY ADV R.S.KALKURA



RESPONDENTS/PETITIONERS - PLAINTIFFS:
     1     SUNIL KUMAR, AGED 54 YEARS, S/O.SUBHAKARAN , PAVITHRAM
           MULLUVILA, VADAKKEVILA VILLAGE, KOLLAM - 691 010.

    2       SUJITH KUMAR, AGED 52 YEARS, S/O.SUBHAKARAN , PAVITHRAM
            MULLUVILA, VADAKKEVILA VILLAGE, KOLLAM - 691 010.

    3       RAJAMONI, AGED 75 YEARS, W/O.SUBHAKARAN, UDAYAGIRI,
            THATTAMALA , VADAKKEVILA VILLAGE , KOLLAM - 691 010.

            BY ADVS.
            SRI.T.M.CHANDRAN
            SRI.S.SUJITH


     THIS   REGULAR   FIRST    APPEAL   HAVING   BEEN   FINALLY   HEARD   ON
17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RFA NO. 252 OF 2020                   2

                                 JUDGMENT

The final decree is under challenge on the reason

that it is not in accordance with the preliminary

decree wherein the property has to be divided into

four equal shares, but in the final decree it was

divided into two parts by clubbing together the shares

belonged to the three defendants by making the

following observations:

"13. The final decree petitioners are 2

brothers and their mother. They asked for their

properties to be clubbed together. Then, the

property is to be divided only into 2 portions.

The property of the respondents 2 to 4 needs to

be allotted separately."

2. It is neither permissible nor advisable to

go beyond the preliminary decree at the final

decree stage except to work out equity, if any.

When there is direction to divide the property

into four equal shares, it has to be divided by

metes and bounds. It is not permissible to divide

the property into two parts by clubbing together

the three shares out of four. Virtually, it would

defeat the division of property.

3. It is so unfortunate that a grave mistake has

been committed by the court below by converting the

properties into three categories, commercial land,

garden land and wet land, overlooking the fact that

the entire property is a paddy field as per the

records. The valuation made based on the said

classification is totally baseless and unacceptable.

If any property is found reclaimed, the same will not

alter the nature of the property as paddy field, but

can be divided equally so as to distribute reclaimed

land among the sharers.

4. From the impugned final decree, it is further

evident that the plaintiff/appellant had suffered too

much by the abovesaid grave mistake committed by the

trial court. Out of 2 acres 93 cents, what is allotted

to the share of plaintiff/appellant comes to only 26

cents, which is less than 1/11th of the total extent

of the property. It would make the allocation so

unconscionable and not in tune with the preliminary

decree.

5. It is also brought to the notice of this court

that there is an overhead 11 KV line lying in an L

shape. Hence, the property can be divided by equally

allotting the area over which the overhead line is

situated. The reclaimed land, if any available shall

be separately located and divided into four equal

shares, so as to allot the same with the remaining

share over the land lying as paddy field, for which

the parties shall appear before the trial court

06/10/2021.

The appeal will stand allowed accordingly

setting aside the final decree for fresh

consideration by the trial court. There will be a

direction to the court below to dispose of the

matter within four months from the date of

appearance of parties.

Sd/-

P.SOMARAJAN JUDGE msp