KUNHALIYUMMA Vs. KUTTU

JUDGEMENT

(1.) The plaintiff sued for partition of plaint schedule property and claimed 1/2 share thereof. The plaint schedule property consists of 17 cents of land and building. According to the plaintiff, in terms of Ext. B16 award concerning partition in the family concerned, plaint schedule was allotted to 4th and 5th groups. Plaintiff obtained a release from the 5th group whereas defendants 6 and 7 who alone contested the suit obtained release from the 4th group. Defendants 6 and 7 contested the suit contending that the 17 cents of property made mention of in the plaint schedule was not available for partition. At the time of partition, Ext. B16 what was allotted was only the building. The contention was found in their favour by both the courts below and only the partition of the building was allowed. In other words partition of the landed property was declined to be decreed. It is that concurrent decree which is challenged by the plaintiff in the second appeal.

(2.) The only question involved in the appeal is whether the allotment of the building to 4th and 5th groups as per Ext. B16 award includes 17 cents of land where the said building and other related structures are situated. Interpreting the document, Ext. B16 and understanding the contents thereof, the courts below found that what was allotted to 4th and 5th groups, in the said document, jointly was only the building and not the land. The building is situated in plot C made mention of in Ext. B16 and the plan prepared based on the said arbitration award. As is seen from the contents of the said document at page 117, plot C stood allotted to 4th group. Plot C takes in landed property. The 5th group was also allotted certain other properties. Thereafter it was provided in the said document in page 119 that the big building and other adjoining structures like godowns or cattle shed situated in C plot shown in the plan are jointly allotted to group 4 and 5. This allotment was made after allotting completely plot C to group No. 4. Therefore, the subsequent allotment to groups 4 and 5 confined only to the building and not to the property. That was the view adopted by the courts below concurrently, based on the contents of the documents, Ext. B16.

(3.) It is submitted relying on the decision reported in Kalpaam Amma v. Muthurama Iyer ( 1994 (2) KLT 424 ) that the building will include the entire fabric and structure and the ground upon which its walls stand and the ground embraced within those walls. Certainly if we consider the building as it is, it can certainly include the land where the building is embedded on the earth. But, while interpreting the document like Ext. B16, the arbitration award regarding partition, the separate allotment to the said groups have to be borne in mind. As already mentioned, the building is situated in plot C and in terms of the said award, it is allotted to group No. 4. Group No. 5 was also allotted certain other items of properly. It is after that, specific allotments of the building situated in Plot C shown in the plan is made in favour of groups 4 and 5. In such circumstances, taking into account the intention of the parties, the agreement of the parties and the terms of the document, it has to be taken, as found by the courts below concurrently, that the allotment jointly to 4th and 5th groups as mentioned above, confined only to the building and not to the land. Therefore, in the nature of the document Ext. B16 and the allotment made mention of therein, the said decision cannot have any application.