P C JOHNY Vs. JOHNY

JUDGEMENT

(1.) DISSATISFIED with the final judgment dated 03.03.2010 passed by the Subordinate Judge's Court, Thrissur in I.A. No.5610/2001 in O.S. No.259/1978, the 7th respondent as well as the 6th respondent in the I.A. have come up in appeal. R.F.A. No.283/2010 is preferred by the 7th respondent, and R.F.A. No.514/2010 is preferred by the 6th respondent. The petitioner in the I.A. who is the plaintiff in the suit has preferred Cross Objection No.49/2010 in R.F.A. No.283/2010. The 7th defendant in the suit is the 7th respondent in the said I.A.

(2.) THE factual matrix reveals that the plaintiff and the appellant in R.F.A. No.514/2010 were tenants in common along with others, in respect of the plaint schedule property having an extent of 12.38 cents with a building thereon. It seems that the appellant in R.F.A. No.283/2010 had purchased the property from all the other tenants in common except the plaintiff and the appellant in R.F.A. No.514/2010. Ultimately, the cross objector in R.F.A. No.283/2010 as plaintiff, filed the suit for partition of the property by metes and bounds. A preliminary decree was passed identifying the shares to which the plaintiff, the appellant in R.F.A. No.514/2010, and the appellant in R.F.A. No.283/2010 are entitled. After much checkered career, it seems that the share to which the cross objector in R.F.A. No.283/2010 has been fixed as 57/168, that of the appellant in R.F.A. No.514/2010 as 16/168 and that of the appellant in R.F.A. No.283/2010 as the balance, i.e., 95/168.

(3.) THE plaintiff as petitioner preferred I.A. No.5610/2001 before the court below for the passing of the final decree. It seems that in the course of the final decree proceedings, the court below had attempted to effect public auction for carrying out partition. The same was challenged by the appellant in R.F.A. No.283/2010, through R.F.A. No.456/2006 before this Court. Vide judgment dated 28.01.2008 in R.F.A. No.456/2006, this Court extended an opportunity to the appellant in R.F.A. No.283/2010 to apply under Section 3 of the Partition Act before the court below. The court below was directed to fix the market price of the property after giving opportunity to both sides and to direct the appellant in R.F.A. No.283/2010 to deposit the amounts to which the plaintiff and the 6th defendant are entitled before the court below within a time limit that may be fixed by the court below.