Kerala High Court
Damodaram Kurukkal Krishna Kurukal vs Padmavathy Ammal on 6 November, 2024
2024:KER:88905
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
FAO NO. 112 OF 2012
AGAINST THE ORDER DATED 24.01.2012 IN AS NO.507 OF 2010 OF I
ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ARISING OUT OF
THE FINAL DECREE AND JUDGMENT DATED 31.05.2004 IN IA NO.2843
OF 1992 IN OS NO.998 OF 1987 OF I ADDITIONAL MUNSIFF COURT,
NEYYATTINKARA
APPELLANT/1ST RESPONDENT IN FIRST APPEAL/PLAINTIFF:
1 DAMODARAM KURUKKAL KRISHNA KURUKAL [DIED]
S/O. DAMODARAN KURUKKAL, MAVARATHALA VILAKATHU
ROADARIKATHU KOCHU MADOM, KOVIL NEDUNGODE, ANAVOOR
VILLAGE, NEYYATTINKARA TALUK.
ADDL. PADMINI AMMA,
APPELLANT W/O. LATE KRISHNAN KURUKKAL,
2 MAVARATHALA VILAKAM,
KORANAMKODE,
KOTTUKAL P.O.,
NEYYATTINKARA.
ADDL. SANTHOSHKUMAR, K.
APPELLANT S/O. LATE KRISHNAN KURUKKAL,
3 MAVARATHALA VILAKAM,
KORANAMKODE,
KOTTUKAL P.O.,
NEYYATTINKARA.
ADDL. SAJU.K,
APPELLANT S/O. LATE KRISHNAN KURUKKAL,
4 MAVARATHALA VILAKAM,
KORANAMKODE,
KOTTUKAL P.Ο.,
NEYYATTINKARA.
[ADDL.APPELLANTS 2 TO 4 ARE IMPLEADED AS PER ORDER
DATED 07.07.2014 IN IA NO.1879/2013]
BY ADVS.
SRI.V.SURESH
SMT.N.P.ASHA
SRI.G.SUDHEER
FAO No.112/2012
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RESPONDENTS/APPELLANTS & RESPONDENTS 2 TO 14 IN FIRST
APPEAL/DEFENDANTS:
1 KAMALAMMAL PADMAVATHY AMMAL
W/O. KRISHNAN POTTI, AZHAMKULATHU KEEZHE MADAM,
KOTTAKKAL DESOM, ANAVOOR VILLAGE, ANAVOOR P.O.,
NEYYATTINKARA TALUK, PIN-695 125.
2 KRISHNAN POTTI SUBRAMONIAN POTTI
AZHAMKULATHU KEEZHE MADAM, KOTTAKKAL DESOM, ANAVOOR
VILLAGE, ANAVOOR P.O., NEYYATTINKARA TALUK,
PIN-695 125.
3 KRISHNAN POTTI MANCHUNATHAN POTTI
AZHAMKULATHU KEEZHE MADAM, KOTTAKKAL DESOM, ANAVOOR
VILLAGE, ANAVOOR P.O., NEYYATTINKARA TALUK,
PIN-695 125.
4 GOPALAKRISHNAN POTTI VENUGOPALAN POTTI
AZHAMKULATHU KEEZHE MADAM, KOTTAKKAL DESOM, ANAVOOR
VILLAGE, ANAVOOR P.O., NEYYATTINKARA TALUK, PIN-695
125.
5 PADMAVATHY AMMAL KAMALAMMAL
AZHAMKULATHU KEEZHE MADAM, KOTTAKKAL DESOM, ANAVOOR
VILLAGE, ANAVOOR P.O., NEYYATTINKARA TALUK, PIN-695
125.
6 KRISHNAN POTTI MADHUSOODANAN POTTI
AZHAMKULATHU KEEZHE MADAM, KOTTAKKAL DESOM, ANAVOOR
VILLAGE, ANAVOOR P.O., NEYYATTINKARA TALUK, PIN-695
125.
7 PADMAVATHI AMMAL SANTHAMMAL
AZHAMKULATHU KEEZHE MADAM, KOTTAKKAL DESOM, ANAVOOR
VILLAGE, ANAVOOR P.O., NEYYATTINKARA TALUK, PIN-695
125.
8 SNEHAPPU ESSILY
VALIYAVATTAKUZHI MELE PUTHEN VEEDU, KOTTAKKAL DESOM,
ANAVOOR P.O., NEYYATTINKARA, PIN-695 125.
9 MARY SUMANGALA
ARUKALPURA, AZHAMKULATHU MELATHIL VILAKATHU
PURAYIDOM, ANAVOOR P.O., NEYYATTINKARA, PIN-695 125.
FAO No.112/2012
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10 BHAGAVATHI PILLAI KALYANI PILLA
AZHAMKULATHU MELE MADAM, KOTTAKKAL DESOM, ANAVOOR
VILLAGE, ANAVOOR P.O., NEYYATTINKARA TALUK,
PIN-695 125.
11 KALYANI PILLAI SREEMATHY PILLAI
AZHAMKULATHU MELE MADAM, KOTTAKKAL DESOM, ANAVOOR
VILLAGE, ANAVOOR P.O., NEYYATTINKARA TALUK,
PIN-695 125.
12 ANNALTHAMARI
AZHAMKULATHU THENGUMKUZHI MELE PUTHEN VEEDU,
KOTTAKKAL DESOM, ANAVOOR P.O., NEYYATTINKARA, PIN-
695 125.
13 THAMARI DAISEY
AZHAMKULATHU MELATHIL VILAKOM PURAYIDOM, KOTTAKKAL
DESOM AND NOW AT ARUKALPURA, AZHAMKULATHU MELATHIL
VILAKOM PURAYIDOM, KOTTAKKAL DESOM, ANAVOOR P.O.,
PIN-695 125.
14 THAMARI SUSEELA
ARUKALPURA, AZHAMKULATHU MELATHIL VILAKOM PURAYIDOM,
KOTTAKKAL DESOM, ANAVOOR P.O., PIN-695 125.
15 KAMALAMMA RAJAMMA
MAVARATHALA VILAKATHU ROADARIKIL KOCHUMADOM, KOVIL
NEDUNGODE DESOM, ANAVOOR P.O., NEYYATTINKARA, PIN-
695 125.
16 DAMODARAN KURUKKAL AYYAPPAN KURUKKAL
MAVARATHALA VILAKATHU ROADARIKIL KOCHUMADOM, KOVIL
NEDUNGODE DESOM, ANAVOOR P.O., NEYYATTINKARA,
PIN-695 125.
17 KAMALAMMA SARASAMMA
MAVARATHALA VILAKATHU ROADARIKIL KOCHUMADOM, KOVIL
NEDUNGODE DESOM, ANAVOOR P.O.,
NEYYATTINKARA-695 125.
BY ADVS.
SRI.R.T.PRADEEP FOR R2
SRI.S.V.PREMAKUMARAN NAIR FOR R2
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
06.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO No.112/2012
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EASWARAN S., J
...........................................
FAO No.112 of 2012
..........................................
Dated this the 6th day of November, 2024
JUDGMENT
The order of remand passed on 24.01.2012 is questioned
in this appeal.
2. The facts in brief for the disposal of the appeal are
as follows: O.S.No.998/1987 was instituted for partition of
various items of the property. A preliminary decree was
passed on 24.08.1990. When the preliminary decree was
passed, the defendants 1, 2, 5 and 18 claimed that they are in
possession of 2 Acres and 27 Cents of land. The plaintiff
conceded to the possession of the defendants 1, 2, 5 and 18,
and stated that he does not want a decree disturbing the
possession of the defendants. Accordingly, while passing of
the preliminary decree, the entitlement of defendants 1, 2, 5
and 18 was protected. I.A.No.2843/1992 was filed for passing
of a final decree in accordance with the preliminary decree.
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3. The Advocate Commissioner identifying the property
and for division by metes and bounds, filed a report on
16.01.2004. The entire borne of contention started from the
report of the Advocate Commissioner. The Advocate
Commissioner identified the 2 Acres and 27 Cents over which
defendants 1, 2, 5 and 18 were entitled for possession in two
parts: 'B' schedule as well as 'D' schedule. While identifying
the extent of 2 Acres and 27 Cents, the Advocate
Commissioner allotted 20 Cents in favour of the plaintiff as D
Schedule 2nd item. This led to the defendants filing
I.A.No.1072/2004 on 25.02.2004 for an order setting aside the
report and the plan. The plaintiff, however, realising the delay
that is likely to cause if the application is allowed in the favour
of the defendants, filed a memo on 29.05.2004, stating that
the property which is allotted to the share of the plaintiff by
the Advocate Commissioner need not be given to him and
thereby protecting the possession of the defendants 1, 2, 5
and 18. The Trial Court accepted the memo and concluded the
final decree proceedings on 31.05.2004.
4. While allowing the aforesaid I.A, the Trial Court
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accepted the statement made across the Bar by the counsel for
the defendants regarding the suggestion forwarded by the
plaintiff through the memo. Dissatisfied with the manner in
which the properties were allotted, the defendants 1, 2, 5 and
18 preferred A.S.No.507/2010 before the District Court. The
District Court while considering the appeal found that the Trial
Court did not consider I.A.No.1072/2004 before passing the
final order concluding the final decree proceedings.
Consequently, the appeal was allowed and the matter was
remanded back to the Trial Court for a fresh consideration.
Challenging the order of remand, the plaintiff has come up in
the present appeal.
5. Heard, Sri.V.Suresh - learned counsel for the
appellant and Sri.R.T.Pradeep - learned counsel appearing for
defendants 1, 2, 5 and 18.
6. Sri.V.Suresh - learned counsel appearing for the
appellant, submitted that, in the light of the memo dated
29.05.2004, the First Appellate Court ought not have
remanded the matter for a fresh cosideration. He further
submitted that, though the Appellate Court has found
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procedural irregularities on the part of the Trial Court in not
considering I.A.No.1072/2004, the said procedural
irregularities will not affect the final decree proceedings,
especially since the parties were amenable to the suggestion
given before the Trial Court by virtue of the memo. He further
pointed out that the property identified in the report and plan
as 'E' Schedule Item nos.2 and 3, which was set apart for
redemption of the mortgage were also given up by the plaintiff
in order to give a quietus to the entire dispute.
7. On the other hand, Sri.R.T.Pradeep - learned
counsel appearing for defendants 1, 2, 5 and 18, submitted
that it is true that the Commissioner has identified 2 Acres and
27 Cents of land over which the defendants are entitled for
protection as per the preliminary decree. However, the
Commissioner while alloting the shares to the respective
parties, had allotted 20 cents under Item No.2 of 'D' Schedule
in favour of the plaintiff, over which the defendants have
possession. That by itself will constitute a serious irregularity
which requires a consideration at the hands of the Trial Court.
He further pointed out that the report of the Advocate
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Commissioner was rightly objected to and the Court was under
solemn obligation to consider the application for setting aside
the report of the Advocate Commissioner. It is further pointed
out that an extent of 3.750 Cents of land, which is identified by
the Advocate Commissioner, was the share of the plaintiff,
which is also lying sandwiched between the properties which
are identified by the Commissioner and for the precise reason,
the objections were given.
8. In reply, Sri.V.Suresh - learned counsel appearing
for the appellant, submitted that the entire controversy could
be given a quietus once the defendants 1, 2, 5 and 18 choses
the property having an extent of 2 Acres and 27 Cents in the
possession as per the report of the Advocate Commissioner
and for that purpose there need not be a fresh consideration
by the Tribunal.
9. I have considered the rival submission raised across
the Bar.
10. The only point which requires for consideration by
this Court is as to whether the First Appellate Court was
justified in ordering a remand. Though the learned counsel for
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the appellant is justified in pointing out that the Trial Court has
accepted the memo over which the learned counsel for the
defendants had no objection and the course of action
suggested by the plaintiff was adopted, the fact remains that a
perusal of the proceedings sheet of the Trial Court shows that
there is in fact proceedural irregularities.
11. As stated above, the report of the Advocate
Commissioner was filed on 16.01.2004. On 16.01.2004, the
Trial Court adjourned the proceedings to 27.01.2004. On
27.01.2004, it was again adjourned to 13.02.2004 and on
13.02.2004 to 17.02.2004 and thereafter, to 25.02.2004. On
25.02.2004, the Trial Court posted the case for hearing on the
final decree application on 09.03.2004. Pertinently, on
25.02.2004, I.A.No.1072/2004 was filed and was already on
record. Although, on 09.03.2004 the case was posted for
hearing on the final decree application, the Trial Court did not
take up the final decree application for final hearing, but
adjourned the case for further consideration of
I.A.No.1072/2004 on 23.03.2004. On 23.03.2004, there was
no sitting and the case was adjourned to 25.03.2004. On
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25.03.2004 also, the matter was adjourned to 24.05.2004 and
then to 27.05.2004 for considering the I.A. On 27.05.2004,
the case was again adjourned to 29.05.2004 and it is on that
particular date that the plaintiff filed the memo giving up their
claim on 20 Cents, which was identified by the Advocate
Commissioner as Item No.2 to 'B' Schedule. Presumably, on
filing of the memo, the Court below did not deem it appropriate
to consider the rival contentions raised by the parties to
I.A.NO.1072/2004. From the proceedings sheet, as narrated
above, it becomes clear that the Trial Court did not pass any
separate order on the application to set aside the report of the
Advocate Commissioner. It is the precise contention of the
learned counsel for the appellant that no separate orders were
passed on the application to set aside the report of the
Advocate Commissioner, because of the fact that the learned
counsel for the defendants was amenable to the suggestion of
the plaintiff.
12. Be that as it may, this Court finds that when
objections were raised with regard to the manner of allotment
done by the Advocate Commissioner, the Trial Court ought not
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have acted on the memo filed by the plaintiff. Although, this
Court does not question the genuineness of the attempt made
by the plaintiff to give quietus to the entire dispute, this Court
cannot remain oblivious of the fact that when the parties were
seriously disputing the identity of the property to which they
are entitled and admittedly the Advocate Commissioner has
allotted 20 Cents of land out of 2 Acres and 27 Cents in the
favour of the plaintiff, the Court below ought to have
considered the application to set aside the report of the
Advocate Commissioner on merits and should have passed
appropriate orders in this regard. Viewed in the above
perspective, this Court cannot find fault with the order passed
by the First Appellate Court remanding the matter for fresh
consideration before the Trial Court.
13. Having held so, this Court feels it appropriate to
mention at this point the suggestion put forward by the
learned counsel for the plaintiff - appellant. The suggestion
put forward before this Court was that the report and plan is
already before the Trial Court and before this Court. If the
defendants 1, 2, 5 and 18 wishes to choose, they may choose
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the property which has been identified by the Advocate
Commissioner, so that the entire issue could be given quietus.
14. As stated above, this Court has not doubted the
genuineness or the fairness shown by the plaintiff and his
counsel. However, while deciding an appeal against order of
remand, this Court may not be in a position to modify the
decree in terms of the suggestion made across the Bar by the
learned counsel for the appellant. Had it been an appeal
arising either out of the preliminary decree or that of a final
decree, necessarily this Court could have exercised its
appellate powers and modified the decree suitably. Therefore,
this Court cannot lend its hand in support to the cause
projected by the plaintiff and that it becomes inevitable for this
Court to uphold the order of remand by the First Appellate
Court. However, having said so, this Court has to take notice of
the suggestion made by the counsel for the plaintiff and would
observe that on remand before the Trial Court, before
considering the application for setting aside the report and plan
filed by the Advocate Commissioner, the Trial Court shall
endeavour to give a quietus to the issued based on the
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suggestion given by the learned counsel for the plaintiff before
this Court. If there is no consensus among the parties with
regard to arriving at an amicable settlement as suggested by
the learned counsel for the plaintifff, then the Trial Court shall
proceed to consider the application on merits and pass
appropriate orders as expeditiously as possible, and
considering the fact that the final decree proceedings is of the
year 1992.
In the result, the appeal fails and accordingly is dismissed
subject to the above observations.
Sd/-
EASWARAN S.,JUDGE
ACR
