2025:KER:28730 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947 RSA NO. 685 OF 2017 AGAINST THE JUDGMENT DATED 17.08.2016 IN AS NO.150 OF 2009 OF SUB COURT, NEYYATTINKARA ARISING OUT OF THE ORDER DATED 13.03.2009 IN IA. NO.4435/2008 OS NO.329 OF 1962 OF I ADDITIONAL MUNSIFF COURT, NEYYATTINKARA APPELLANT/APPELLANT/84TH DEFENDANT: MADHAVAN S/O.PODIKUTTY NADAR, KALLUVETTANKUZHI, MEKKEPUTHEN VEEDU, CHENKAL DESOM, KOLLAMKODE PAKUTHY. BY ADV SRI.G.S.REGHUNATH RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS: * 1 NAGAMONY NADAR (DELETED) S/O.DANIEL NADAR,MELEKUZHINJAMVILA, THEKKEKARA PUTHEN VEEDU,KARODE DESOM, KARODE P.O., PIN - 695 506. (RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER THE ORDER DATED 4/4/2019 IN IA NO.1/2019) 2 KALARANI D/O.LEELA BAI, KAKKAVILA VEEDU, KARODE DESOM, KAKKAVILA P.O., PIN - 695 506. 3 MUTHU ROSAMMA W/O.RAYAPPAN NADAR, MELEKUZHINJAMVILA VEEDU, KARODE DESOM, KARODE P.O., PIN - 695 506. 4 RAYAPPAN NADAR JUSTER 2025:KER:28730 RSA No.685/2017 : 2 : MELEKUZHINJAMVILA VEEDU,KARODE DESOM, KARODE P.O., PIN - 695 506. 5 GEORGE STEPHEN S/O.RAYAPPAN NADAR, MELEKUZHINJAMVILA VEEDU, KARODE DESOM, KARODE P.O., PIN - 695 506. 6 CHELLAYYAN NADAR CHRISTHUDAS AGED 32 YEARS MELEKUZHINJAMVILA,THEKKEKARA VEEDU, KARODE, KARODE P.O.,PIN - 695 506. 7 CHELLAYYAN NADAR FRANCIS MELEKUZHINJAMVILA,THEKKEKARA VEEDU, KARODE, KARODE P.O.,PIN - 695 506. 8 MARIYA THANKAM AGED 48 YEARS THEKKEKARA PUTHEN VEEDU,MELEKUZHINJAMVILA, KARODE DESOM,KARODE P.O., PIN - 695 506. 9 CHELLAN NADAR LAWRENCE AGED 23 YEARS MELEKUZHINJAMVILA, THEKKEKARA VEEDU, KARODE, KARODE P.O.,PIN - 695 506. 10 CHELLAN NADAR STANLY MELEKUZHINJAMVILA, THEKKEKARA VEEDU, KARODE, KARODE P.O., PIN - 695 506. 11 CRYSTAL THANKOM AGED 47 YEARS MELEKUZHINJAMVILA, THEKKEKARA VEEDU, KARODE, KARODE P.O., PIN - 695 506. 12 JEEVANSON AGED 21 YEARS S/O.PONNAYYAN NADAR, AGED 21, MELEKUZHINJAMVILA, THEKKEKARA VEEDU, KARODE, KARODE P.O., PIN - 695 506. 13 ALDRINE S/O.PONNAYYAN NADAR, 2025:KER:28730 RSA No.685/2017 : 3 : MELEKUZHINJAMVILA,THEKKEKARA VEEDU, KARODE, KARODE P.O.,PIN - 695 506. * 14 AMMALU THANKOM, (DIED) AGED 45 YEARS MELEKUZHINJAMVILA, THEKKEKARA VEEDU, KARODE, KARODE P.O., PIN - 695 506. 15 JOHNSON AGED 23 YEARS MELEKUZHINJAMVILA, THEKKEKARA PUTHEN VEEDU, KARODE, KARODE P.O., PIN - 695 506. 16 AUGUSTHYANOSE AGED 36 YEARS S/O.CHELLAKKANNU NADAR, MELEKUZHINJAMVILA VEEDU, KALLAMPOTTA, KARODE, KARODE P.O., PIN - 695 506. 17 ALIAS RAJAM KEEZHEKUZHINJANVILA VEEDU, KARODE P.O.,PIN - 695 506. 18 BEULA D/O.RAJAM, KEEZHEKUZHINJANVILA VEEDU, KARODE, KARODE P.O., PIN - 695 506. 19 LEELA BAI JALARANI THEKKEKARA PUTHEN VEEDU,KEEZHEKUZHINJANVILA, KARODE DESOM, KARODE P.O.,PIN- 695 506. 20 RAJADAS THEKKEKARA PUTHEN VEEDU, KEEZHEKUZHINJANVILA, KARODE DESOM, KARODE VILLAGE, TRIVANDRUM - 695 506. ADDL.21 SHAJI, MELEKUZHINJAMVILA,THEKKEKARA VEEDU,KARODE, KAKKAVILA P.O.,PINCODE-695506. (THE LEGAL HEIR OF THE DECEASED 14TH RESPONDENT IS IMPLEADED AS THE ADDITIONAL 21ST RESPONDENT AS PER ORDER DATED 11.10.2019 IN IA.NO.3180/2017) 2025:KER:28730 RSA No.685/2017 : 4 : BY ADVS. SRI.A.R.DILEEP DR.ELIZABETH VARKEY SRI.GEORGE VARGHESEPERUMPALLIKUTTIYIL SRI.P.J.JOE PAUL SRI.JITHIN SAJI ISAAC SRI.MANU SEBASTIAN SRI.K.J.SAJI ISAAC THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:28730 RSA No.685/2017 : 5 : N. NAGARESH, J. ````````````````````````````````````````````````````````````` R.S.A. No.685 of 2017 ````````````````````````````````````````````````````````````` Dated this the 4th day of April, 2025 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ The 84th defendant in OS No.329/1962 of the Munsiff's Court, Neyyattinkara is the appellant in this RSA. The appeal is against judgment dated 17.08.2016 in AS No.150/2009 of the Sub Court, Neyyattinkara arising from the order dated 13.03.2009 in IA No.4435/2008 in OS No.329/1962 which is a suit for partition and redemption. 2. Defendant No.84, who is the appellant herein, is the son of deceased defendant Nos.24 and 25. As per the preliminary decree, the right of defendant Nos.2, 25, 26 and 34 were declared. The mortgage pertaining to the property was redeemed by the 25th defendant. 2025:KER:28730 RSA No.685/2017 : 6 : Ext.C1(a) is the property under the possession of defendant Nos.24 and 25 having an extent of 10.2 Cents. 3. The Court of the 1st Additional Munsiff, Neyyattinkara passed a preliminary judgment dated 22.12.1971 in the suit for partition and redemption wherein the rights of defendants 2, 24, 25 and 34 were declared. The trial court further declared that the 3rd defendant is entitled to 1/12 share in the property comprised in Survey No.138/1A. The 16th defendant was declared as entitled to 19 Cents described in Exts.D9 and D10. The 17th defendant was declared entitled to 30 and 3/8 Cents described in Exts.D27 to D29. The 20th defendant was held entitled to 65½ Cents and a building as described in Exts.D37 and D38. 4. A final decree was also passed in AS No.17/1994 on 16.01.1986. As per the preliminary decree, the rights of defendants 2, 25, 26 and 34 were declared. The 25th defendant redeemed the mortgaged property. A 2025:KER:28730 RSA No.685/2017 : 7 : property having an extent of 10.2 Cents was allotted to defendant No.25. The 24th defendant was allotted plot No.18. 5. The final decree was challenged by the plaintiffs filing AS No.17/1994. The appeal was allowed and the matter was remitted to the trial court on the ground that the Commissioner has shown a lesser extent of property as available for partition. After remand, the Munsiff's Court set aside the Commission report and appointed a new Advocate Commissioner. The new Commissioner, Sri. Simon, measured the property and filed a report and plan. The property of the 25th defendant was not shown in the report and plan on the ground that the said defendant did not file a commission application. The appellant states that defendants 24 and 25 had filed IA No.2428/1972 and consequently, the plots of defendants 24 and 25 were shown in the plan submitted by the former Advocate Commissioner. 2025:KER:28730 RSA No.685/2017 : 8 : 6. During examination in the court, Advocate Commissioner Sri. Simon admitted that the 10.2 Cents is located by him in the plan. The said plan ought to have been set aside by the court. The appellant again filed IA No.1842/2007. The IA was dismissed by the Munsiff's Court holding that appellant has no right to get partition of the property allotted to the 25th defendant in the preliminary decree. 7. The appellant filed W.P.(C) No.32945/2007 aggrieved by the order of the Munsiff's Court. Though this Court dismissed the writ petition, this Court observed that the Munsiff's Court should change its stand and allot the share to the 84th defendant if the 84th defendant can convince the court that he is entitled to actual possession of the 10.2 Cents claimed by him under the 25th defendant. 8. The appellant thereafter filed IA No.4435/2008 praying for passing a final decree in his favour so that the 10.2 Cents obtained by him from the 25th 2025:KER:28730 RSA No.685/2017 : 9 : defendant, is allotted to him as his share. The appellant also filed IA No.57/2008 for directing the Commissioner to identify and locate the 10.2 Cents claimed by him. 9. The trial court dismissed IA No.4435/2008 and IA No.57/2008 filed by the appellant for passing a final decree and for identifying the property. A final decree was passed in favour of the plaintiffs and the final decree application filed by the 84th defendant was dismissed as per separate orders. 10. Aggrieved by the said orders dated 13.03.2009, the appellant filed AS No.150/2009 in the Sub Court, Neyyattinkara. The Sub Court, Neyyattinkara dismissed the appeal as per judgment dated 17.08.2016. The appellant states that a decree was passed in the suit declaring that defendants 24 and 25 are entitled to 10.25 Cents and 14.25 Cents respectively. None of the parties claim tenancy right over the properties allocated to defendants 24 and 25. The appellant-84th defendant is the 2025:KER:28730 RSA No.685/2017 : 10 : son of defendants 24 and 25 and he has obtained all the rights of defendants 24 and 25 as per registered documents. 11. Defendants 24 and 25 had filed commission application for partitioning their share and the said application was allowed and the Commissioner had allotted plots to defendants 24 and 25. The said commission report was set aside for a different reason and the subsequent Advocate Commissioner appointed by the Court did not locate or mark the property allocated to defendants 24 and 25. When this fact was brought to the notice of the court by the 84th defendant filing IA No.1842/2007, the Commissioner demarcated the property claimed by the 84th defendant as BCDEFG plot. The trial court, however, ignored these facts. The appellate court also failed to discharge its duty in considering the rights of the 84th defendant on the basis of the preliminary decree. The appellant therefore seeks to set aside the judgment dated 17.08.2016 in AS No.150/2009 of the Sub Court, 2025:KER:28730 RSA No.685/2017 : 11 : Neyyattinkara arising from order dated 13.03.2009 in IA No.4435/2008 in OS No.329/1962. 12. Heard. 13. In OS No.329/1962, the Munsiff's Court, Neyyattinkara passed a preliminary judgment and decree on 22.12.1971. The appellant filed IA No.4435/2008 for passing final decree. The said application was dismissed by the Munsiff's Court. Against the said order in IA No.4435/2008, the appellant filed AS No.150/2009 in the Sub Court, Neyyattinkara. The Sub Court also dismissed the appeal. 14. The Munsiff's Court, Neyyattinkara dismissed IA No.4435/2008 holding that the appellant had earlier filed IA No.1842/2007 to appoint an Advocate Commissioner to prepare a plan with respect to the plots the petitioner is entitled to get as per the preliminary decree. The plaintiff also had filed IA No.57/2008 to declare that he is entitled to get actual possession of 10.2 Cents of 2025:KER:28730 RSA No.685/2017 : 12 : property. Both the said IAs were dismissed and in view of the findings in those IAs, the appellant is not entitled to get final decree for partition. 15. The said order dated 13.03.2009 in IA No.4435/2008 in OS No.329/1962 was taken in appeal by the appellant as AS No.150/2009 before the Sub Court, Neyyattinkara. The learned Sub Judge noted that since IA No.4435/2008 was one for passing final decree and since the said IA stands dismissed, the order under challenge has to be construed as a final judgment since the rights of the appellant are finally determined by the order under challenge. 16. IA No.4435/2008 was dismissed by the Munsiff's Court holding that IA No.1842/2007 earlier filed by the petitioner was dismissed. In IA No.1842/2007, the appellant sought to appoint Advocate Commissioner to prepare plan regarding the plots claimed by the appellant. Though the order in the said IA was challenged before this 2025:KER:28730 RSA No.685/2017 : 13 : Court filing W.P.(C) No.32945/2007, this Court dismissed the writ petition granting liberty to the appellant to urge any further contentions before the court below. 17. The appellate court gone through the available materials in order to find out whether the appellant is entitled to allotment and separate possession of 10.2 Cents of property. The appellate court noted that the preliminary decree did not declare the rights of defendants 24 and 25 with regard to a property having extent of 10.2 Cents. Therefore, the claim raised by the appellant in the application for final decree was not in accordance with the preliminary decree. 18. The appellate court considered the relevant portion of the preliminary judgment incorporated in paragraph 20 which reads as follows: The rights of these defendants are therefore declared as provided in Ext.D30 decree. However, in Ext.D30, it is stated that defendants therein are in possession of the property as Kuttikuzhikanamdars since 1057. Therefore, as per Section 2(57)(d) read with Section 13 of the 2025:KER:28730 RSA No.685/2017 : 14 : Act 1/1964 as amended by Act 35/1969, defendants 2, 24 to 26 and 34 are not entitled to redeem the plaint schedule property outstanding in the possession of Kuttikuzhikanamdars. The said finding by the Munsiff's Court disentitled the appellant to get separate possession of 10.2 Cents of property. 19. Though the appellant would contend that the said findings are unsustainable, the argument cannot be accepted since defendants 24 and 25 or the appellant did not challenge the preliminary judgment. The appellant is therefore bound by the findings in the preliminary judgment. 20. Allotment of shares in the final decree can be made only as per the findings and directions in the preliminary decree. The application of the appellant for final decree is not in accordance with the preliminary decree. Therefore, the appellate court dismissed AS No.150/2009. 21. The appellant would urge that the statements in the preliminary judgment and decree are baseless. It is to be noted that defendants 24 or 25 or the 2025:KER:28730 RSA No.685/2017 : 15 : appellant did not challenge the preliminary judgment and hence they are bound by the findings and conclusions in the preliminary judgment. Allotment of shares in the final decree can only be as per the preliminary decree. The preliminary judgment shows that the claim raised by the petitioner in IA No.4435/2008 is not in accordance with the preliminary decree. The claim of the appellant therefore cannot be allowed. In view of the afore facts, the order passed by the Munsiff's Court and the judgment of the Sub Court do not require any interference. The second appeal is therefore dismissed. All pending interlocutory applications are closed. Sd/- N. NAGARESH, JUDGE aks/02.04.2025