P N PRASANNAN Vs. VISWAMBHARAN

JUDGEMENT

(1.) EXHIBIT P9, order passed by learned Principal Munsiff, Ernakulam on I.A. No.3876 of 2010 in O.S. No. 731 of 1996 is under challenge. By that order learned Munsiff has allowed respondents 1 to 3-plaintiffs to amend the plaint schedule as well as preliminary decree schedule pursuant to Ext.P6, application (I.A. No.3876 of 2010). Suit is for partition of property as per settlement deed No.1761 of 1973. As per that partition deed, executants Nos.1 to 8 who include the parties hereto are allotted 3.5 cents forming part of a total of 41.5 cents and the structures situated thereon. The remaining 38 cents (i.e., excluding the 3.5 cents) and the house situated thereon was allotted to party Nos.2 to 8 who also takes in the parties to this litigation. Based on the settlement between parties a preliminary decree for partition was passed. Later an Advocate Commissioner inspected the property and submitted interim report (Ext.P8) and a plan where the 3.5 cents was identified and shown as situated towards the north- western corner of the 41.5 cents. In the meantime respondents 1 to 3 filed I.A. No.3876 of 2010 for amendment of the plaint schedule and preliminary decree schedule. It is submitted that the Advocate Commissioner thereafter has submitted Ext.P10, report and plan where the disputed 3.5 cents is shown as situated towards the south-western corner of the total extent of 41.5 cents (as against its location on the north-western corner as per Ext.P8, interim report and plan). The order allowing amendment to make it appear that the 3.5 cents is situated towards south- western corner of total extent of 41.5 cents is under challenge. Learned counsel for petitioner contends that the 3.5 cents was not part of the plaint schedule or the preliminary decree schedule and that what is done by the amendment is to incorporate an item of property which is not the subject matter of the suit and preliminary decree. It is also contended that petitioner is in possession of 3.5 cents and the structures thereon.

(2.) LEARNED Senior Advocate contended that the 3.5 cents also was part of the relief prayed for in the suit for partition as could be seen from the relief portion where it is requested that share belonging to respondents 1 to 3 as per settlement deed No.1761 of 1973 may be partitioned and separate possession be given to them. It is pointed out from the preliminary decree that it takes in the 3.5 cents as well as remaining 38 cents.

(3.) SINCE there is serious dispute regarding the place where the 3.5 cents situate and the interim and final reports submitted by the Advocate Commissioner give contradictory locations I consider that before the amendment is allowed it is necessary that evidence is recorded on Ext.P6, application. Resultantly, this Original Petition is allowed. Exhibit P9, order is set aside. I.A. No.3876 of 2010 is remitted to the learned Munsiff for fresh decision after giving both sides opportunity to adduce evidence on that application as to the identity and location of the 3.5 cents and based on the evidence that may be let in by the parties, learned Munsiff shall pass appropriate orders on the application. If ultimately petitioner is found to be in possession of the said 3.5 cents and structures, that property is also to be partitioned and any equitable relief is to be given to the petitioner in respect of the said 3.5 cents, it is open to the learned Munsiff to issue appropriate direction in that regard and make modification in the allotment of plots regarding the rest of the property without violating the preliminary decree.