ASHOK PANDEY Vs. CHANDRAMATHIAMMA

JUDGEMENT

(1.) THIS Second Appeal is filed challenging the final decree passed by the trial court, which was affirmed by the appellate court. The suit was originally filed by three plaintiffs against three defendants for a declaration that the plaint schedule property belonged to the plaintiffs and for recovery of possession of the same with mesne profits and also for injunction restraining the defendants from committing acts of waste in the property. The suit was resisted contending that the plaint schedule property is a co -ownership property. The suit was ultimately decreed declaring the right of plaintiffs 2 and 3 in the plaint schedule property as the legal heirs of deceased Raman Pillai along with the defendants and that the partition deed no.526/1997 executed by the defendants is not binding on plaintiffs 2 and 3. An injunction was granted against committing waste in the plaint schedule property.

(2.) THE suit was decreed to the effect that the plaint schedule property belonged to plaintiffs 2 and 3 (as legal heirs of Raman Pillai) and the defendants. Based on that decree plaintiffs 2 and 3, whose share in the property had been determined, filed application for passing a final decree for effecting partition of the property. In that application , though objection was filed, the defendants contended that their share be separately allotted by effecting division of the property through an Advocate Commissioner. Accordingly, the Advocate Commissioner measured the property and effected division of the same.

(3.) THE plaint schedule property was found to be measuring 88 cents (equivalent to 35.73 Ares). It was located in Ext.C3 plan as plot 'HFEDCBAK'. Out of that plot 'MDCN' was allotted to the plaintiffs, the extent of which was shown as 39.810 cents. Plot 'HFEMNBAK', having an extent of 48.440 cents, was allotted to the respondents. That was in respect of one item of properties. One of the other items shown in Ext.C4 plan, the total extent of which was found to be 24.205 cents, was located as 'AHBCDE'. Out of that plot an extent measuring 9.682 cents shown as 'HBCD' in Ext.C4 plan was allotted to the plaintiffs, whereas the plot 'AHDE', measuring 14.523 cents, was allotted to the respondents. Ext.C5 plan is with regard to another item. The extent of that item available was found to be 33.185 cents. It was shown as plot 'EFHABCDE', out of which the plaintiffs were alloted plot 'MNAB' measuring 13.274 cents and the remaining extent measuring 19.911 cents, shown as 'EFHMNMCDE', was allotted to the respondents. Ext.C1 report shows the valuation of the different items of property.