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Judgment
Thomas P. Joseph, J.—The legal representatives of deceased first defendant are the appellants in R.S.A No. 312 of 2009. S.A No. 324 of 2001 is filed by the legal representatives of the first defendant. Both the appeals arise from the common judgment and decree of learned Sub Judge, Pala in A.S Nos. 231 of 1994 and 1 of 1995 confirming the judgment and preliminary decree passed by the learned Munsiff, Pala in O.S No. 348 of 1985
The 8th respondent in S.A. No. 324 of 2001 I am told, was not allotted any share in the preliminary decree passed by the trial court and confirmed by the first appellate court and has not appeared in the courts below. By order on I.A No. 1858 of 2012, the 8th respondent has been removed from the array of parties in S.A. No. 324 of 2001. In view of the said order and as requested by the learned counsel for appellants in R.S.A No. 312 of 2009 and as endorsed on the docket sheet, the 9th respondent in R.S.A No. 312 of 2009 was removed from the array of parties as per order passed this day.
The parties other than the 8th respondent in S.A. No. 324 of 2001 (the 9th respondent in R.S.A. No. 312/2009) who is removed from the array of parties in the appeals have settled the dispute among them and filed I.A No. 1857 of 2012 in S.A No. 324 of 2001. The parties have requested to pass a preliminary decree in tune with the settlement. A plan of item No. 3 of the plaint schedule is also appended to the compromise petition.
I have heard the learned counsel on both sides.
The learned counsel requested that a preliminary decree for partition may be passed in terms of the settlement. It is seen that the compromise petition is signed by all the parties (except the 8th respondent in S.A. No. 324 of 2001 (9th respondent in R.S.A. No. 312 of 2009) who has already been deleted from the array of parties and their respective counsel. On hearing that the learned counsel and going through the compromise petition I find no reason why the compromise should not be accepted.
Resultantly, these second appeals are disposed of as under;
A. The compromise entered between the parties is accepted and recorded.
B. S.A 324 of 2001 is disposed of as under:
In substitution of the judgment and decree of learned Munsiff, Pala in O.S. 348 of 1985 as confirmed by the learned Sub Judge, Pala in A.S. Nos. 231 of 1994 and 1 of 1995, a preliminary decree is passed in terms of the compromise as under;
Appellants will get the entire plaint item No. 4 property comprised in Re-Survey. No. 376/8(Old Survey Nos. 15/10, 15/9, 15/4 and 6/1 of Bharananganam Village and 13 cents of property with 10 meters Temple Road frontage on the eastern side of plaint item No. 3 comprised in Re-Survey No. 378/4 (Old Sy. No. 5/7) of Bharananganam village.
Respondents 1 to 7, 9 and 10 herein will get the entire plaint items 1 and 2 ie., 1 acre 23.750 cents and a building situate in Re-Survey No. 379/4(Old Sy. No. 3/1) of Bharananganam Village and 35 cents of land in plaint item No. 3 property with 16.2 mtrs., Temple Road frontage in Re-Survey No. 378/4 (Old Survey No. 5/7) of Bharananganam Village.
Though the measurement of plaint item No. 3 property is shown as 91 cents in the plaint in actual measurement, only 90 cents of land is available for partition. The 8th respondent herein will get 38.29 cents on the rear portion. 8th respondent and respondents 1 to 7, 9 and 10 herein will have equal right of ownership over 3.71 cents of land marked as road having 5.8 metres width at the temple Road side on the western side in plaint item No. 3 in Re-Survey No. 378/4(Old Sy. No. 5/7) of Bharananganam Village and respondents 1 to 10 herein and their successors have right to use 3.71 cents of land marked as aoad in item No. 3 property. A plan of item No. 3 property showing the shares in item No. 3 of the property and the road is appended herewith.
C. In view of the preliminary decree I have passed in terms of the settlement above stated, R.S.A. No. 312 of 2009 has become redundant and it is accordingly closed.