Kerala High Court
Rajeev Aged 40 Years vs Jayathilakan on 30 June, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
MONDAY,THE 25TH DAY OF NOVEMBER 2013/4TH AGRAHAYANA, 1935
OP(C).No. 3995 of 2013 (O)
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IN OS 204/1997 of PRINCIPAL SUB COURT,THRISSUR, DATED 30-06-2010
PETITIONER(S):
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RAJEEV AGED 40 YEARS
S/O. PADINJAKARA VASUDEVAN, NEDUMPURA VILLAGE DESOM
TALAPPILLY TALUK.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
RESPONDENT(S):
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1. JAYATHILAKAN
S/O. PADINJAKARA DEVAN VBAIDYAR
NEDUMPURA VILLAGE DESOM, TALAPPILLY TALUK-673001.
2. KUTTISANKARAN.
K S E B COLONY, PAVANGD, KOZHIKODE-673001.
3. INDU
D/O. KUTTISANKARAN, K S E B COLONY, PAVANGAD
KOZHIKODE-673001.
4. BINDU
D/O.KUTTISANKARAN, K S E B COLONY, PAVANGAD
KOZHIKODE-673001.
R1 BY ADV. SMT.P.A.SHEEJA
R1 BY ADV. SRI.SAJU.S.A
R1 BY ADV. SRI.K.C.KIRAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-2013, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 3995 of 2013 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1. TRUE COPY OF THE COMMON JUDGMENT IN R.S.A. NO. 487 OF
04 AND CONNECTED CASES DATED 31-3-2005 OF THIS
HON'BLE COURT.
EXT.P2. TRUE COPY OF THE COMMON JUDGMENT RENDERED IN OS
NO. 204 OF 97 AND CONNECTED CASES DATED 30-6-2010 ON
THE FILE OF THE PRL. SUB COURT, THRISSUR.
RESPONDENT(S)' EXHIBITS
--------------------------------------- NIL
// True copy //
PA to Judge
das
N.K.BALAKRISHNAN, J.
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O.P.(C). No. 3995 of 2013
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Dated this the 25th day of November, 2013
JUDGMENT
Heard both sides.
2. This petition is filed by the plaintiff in a suit for partition. The suit was dismissed. When it reached before this court in S.A. 487 of 2004, this court remanded the matter to the trial court for disposal afresh after remitting the report of the advocate commissioner to the same advocate commissioner or to another advocate commissioner with a direction to identify the properties with the assistance of the Taluk surveyor. After the remand, the trial court again dismissed the suit and now it is pending in appeal before the lower appellate court.
3. The learned counsel for the appellants submits that there is an observation made by this court in paragraph 12 as:
-: 2 :- O.P.(C). No. 3995 of 2013
Rajagopalan was really a co-owner in respect of the entire 61= cents including plot B1 and it is admitted in paragraph 5 of the plaint in O.S.No.563/2000 that Rajagopalan has filed a suit for partition against Jayathilakan and Geetha. If so, even before a partition and division by metes and bounds, it is not revealed as to how Rajagopalan could assign his 1/3rd share over plot B1 alone. What is more significant about Ext.A3 is that the southern boundary of this property is shown as the properties of Jayathilakan, Rajagopalan and Geetha. Going by Ext.C1(a) plan, the southern boundary of plot B1 is plot A3 which is claimed by the plaintiffs as theirs. Thus, in Ext.A3 sale deed there is an admission by Rajagopalan that plot A3 which is the southern boundary of the property conveyed thereunder is in the possession of himself, jayathilakan and Geetha.
4. The learned counsel for the petitioner submits that in view of the aforesaid observation the trial court took the view that the said property is not partible. Hence, the suit was dismissed. The lower appellate court is likely to take by the same way, in view of the observations as aforequoted. Hence, the petitioner submits that it may be clarified that it was an open remand that was passed by this court and so the appeal may have to be disposed of untrammeled by the observations made by this court in the appeal judgment.
5. The learned counsel for R1 has strongly opposed -: 3 :- O.P.(C). No. 3995 of 2013 the petition stating that in a petition under Article 227 of the Constitution of India, which is only having supervisory jurisdiction, no clarification can be made and that if at all the remedy open to the petitioner is to file a review petition.
I find force in that submission. However, since it was an open remand, it is just and proper that the appellate court disposes of the appeal without being influenced by those observations but in accordance with law.
The OP(C) is disposed of accordingly.
Sd/-
N.K.BALAKRISHNAN, JUDGE das