Accepting the Commissioner's report Exts.P7 and P10, the court below passed Ext.P17 order, whereby the objection filed by the petitioner herein to set aside the Supplementary Commission report was rejected.
2. Sad to say, the suit is of the year 1986. We are in 2014 and the parties to the suit are not yet reached any solution. The parties are closely related to each other.
3. The suit properties having a total extent of 3.85 Acres are comprised in old Survey No.624/1 of Vallichira village. It originally belonged to Pothen and his wife Rosa. Out of the 3.85 Acres of land, 1 acre 12 cents lying on the northern side of the entire property, extending east-west, was given to Thomas. An extent of 73 cents lying on the southern side of the entire property was given to Varkey and Abraham. Out of the said 73 cents, 31 cents on the western side was allotted to Varkey and 42 cents on the eastern side was given to Abraham. The balance property which occupied the middle portion was set apart for the purpose of welfare of the daughter Annamma. Copy of the partition deed is produced as Ext.P1. Later, a settlement deed was entered into between the parties, which is produced as Ext.P2. By the settlement deed, Pothen settled the 2 Acres among Varkey, Annamma and Abraham. 66 cents on the western side was given to Varkey, 67 cents lying immediately on the eastern side of the above 66 cents and the house therein was given to Annamma. The remaining 67 cents lying on the eastern side was given to Abraham. The suit was filed claiming an extent of 35 cents of property from Annamma and that the defendants refused to fix the boundaries. The defendants set up a counter claim in respect of the 42 cents of of property. Suffice to say that, ultimately, the parties entered into a compromise, which is evidenced by Ext.P4, which reads as follows:
1. All the parties agreed to measure out the 3.85 Acres of property in Sy.No.624/1 of Vallichira Village covered by Partition Deed No.3338/61 of Meenachil SRO and divide the properties in accordance with the measurements mentioned in the Partition Deed No.3338/61 of Meenachil SRO and Settlement Deed No.2826/81 of Meenachil SRO through the execution court.
2. The properties shall be divided on the basis of those documents, as far as possible, without disturbing/affecting the present possession of the respective parties.
3. The parties have hereby undertaken and prepared to make proportionate reduction from their respective shares, for the extent of property taken for the construction of the panchayat road passing through the property. In case it is found on measurement that any excess land available the same shall be distributed to all proportionately.
4. The parties shall agree to handover the possession in accordance with the measurement to be carried out as aforesaid and respect the possession accordingly.
5. The parties shall bear the expenses for carrying out the above work proportionately.
4. In pursuance to the compromise, a commissioner was deputed to measure out the property and allot the properties to the sharers. That was done by Exts.P7 and P10.
5. The main grievance of the petitioner is that by accepting Exts.P7 and P10, he is compelled to give up possession of a portion of the land in which he is residing and that is contrary to the spirit of the compromise. The compromise, according to the petitioner, stipulates that as far as possible, the possession of the persons shall not be disturbed. It is further contended that by re-allocation of the property, it is possible to give 42 cents to the decree-holder without disturbing the residence of the petitioner. That mode of arrangement was not attempted by the commissioner and that is the grievance of the petitioner. It is therefore, contended that the impugned order is to be set side.
6. The learned counsel for the respondent went on to point out that sketch drawn as per Exts.P7 and P10 are strictly in terms of the compromise and there are no ground to interfere with the same. One aspect highlighted by the counsel for the respondent is that at the time of entering into the compromise, if there was a house in the plot allotted to the respondent, clearly, that would have found a place in the compromise and non-mention of the same in the compromise entered into between the parties proves the fact that the temporary structure noticed by the commissioner in his report was not there earlier.
7. The counsel for the respondent pointed out that though 42 cents of property was allotted to him, as per the decree, he is to be allotted plots 9, 10 and 11. Plot 10 is actually a pathway. The learned counsel also pointed out that further on the western side of the plot now allotted to the decree holder, there is a plot having 31 cents of land, the property to which the judgment debtor is entitled to.
8. Having heard both sides, there seems to be little merit in the petition. True, as per Ext.P4 compromise, there is a clause to the effect that as far as possible, the present possession of the parties shall not be disturbed. But, there is another clause which says that if the property is measured and it is found that excess land available, he shall handover the possession to the person entitled thereof. The court below has chosen to accept the commissioner's report Exts.C1, C1 (a), C2 and the plan marked as Ext. C2(a). After elaborate discussion, the court below came to the conclusion that the partition effected is reasonable and just.
9. The mere fact that there was no mention of structures as noticed by the commissioner and in the compromise, is not the end of the matter. The commissioner had measured the entire property and after plotting the property, came to the conclusion the property due to the decree holder are Plots 9, 10 and 11. It is to be noticed that in plot 11 the petitioner claims that he is residing. It must be noticed that 31 cents to which he is entitled lies further western side of the property.
10. There is no basis for the contention that injustice has been done to the petitioner. When the compromise Ext.P4 was entered into, each of the sharer knew that if he/she held any extent of property due to any other sharer, the former had to hand over possession. The Commissioner after due deliberation had chosen to allot Plots 9, 10, and 11 to respondent finding that was the only feasible and equitable way of allotting plots.
11. This court is not overlooking the fact that the petitioner had chosen to produce Ext.P16, a suggested mode of allocation with the help of a private surveyor, wherein it is shown that 42 cents due to the decree holder could be allotted on the eastern side of the road and had been done, the plot where the house of the petitioner is situated could have been saved. In order to even attempt such a mode of allocation, the entire property will have to be re-allocated with no guarantee of any certainty.
12. The court below has considered all aspects and come to the conclusion that there are no grounds to set aside Ext.C2 commission report and Ext.C2(a) plan. After having given anxious consideration to the various aspects including the plot allotted to the petitioner, this court finds no reason to interfere with the impugned order. This original petition is without merits and it is accordingly dismissed.
Sd/-
P. BHAVADASAN, JUDGE.
//true copy// P.S. To Judge St/-