IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 AS.No. 377 of 1993(D) --------------------- AGAINST THE ORDER DATED 16/12/1992 IN IA.2079/89 IN OS.60/1986 of ADL.SUB COURT, THALASSERY .................... APPELLANTS/PETITIONER IN IA/RESPONDENTS 1,4 & 5 IN IA PLAINTIFF AND DEFENANTS 2,5 AND 6 IN OS ------------------------------------------------------------------------------------------- 1.CHERIYATH NANI, D/O.CHERIYATH DEVAKY )( DIED AND LEGAL VANNANKANDIYIL HOUSE )(HEIRS IMPLEADED PO PARAPPA )( 2. CHERIYATH MADHAVI D/O.CHERIYATH DEVAKI OCCUPATION NIL, RESIDING AT JAYA NIVAS )( DIED AND LEGAL PATTIAM AMSOM, PATHAYAKUNNU DESOM )( HEIRS IMPLEADED THALASSERY 3. THATTANDAVIDA DEVOOTTY, D/O.VARAYIL KORAN OCCUPATION NIL RESIDING AT THOTTANDAVIDA HOUSE PO CHAMPAD, THALASSERY 4. VARAYIL LEELA, D/O.DAMU OCCUPATION NIL, RESIDING AT PADINHARA PATTARATH HOUSE SUPPLEMENTAL APPELLANTS : 5.V K VIMALA, JAYA NIVAS PATTIAM AMSOM, PATHAYAKUNNU DESOM THALASSERY 6. V K GIRIJA- DO- 7. V K JAYA PRAKASH -DO- 8. V K JALAJA -DO- 9. V K SURESH BABU -DO- 10.V K SUGESH BABU -DO- (SUPPLEMENTAL APPELLANTS 5 TO 10 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED 2ND APPELLANT AS PER ORDER ON IA 719/2003 DT.9.7.2003) AS 377/93 -2- SUPPLEMENTAL APPELLANTS 11 TO 13 : 11. CHERIYATH KARUNAN, AGED 58 YEARS VANDANAM, PARAPPRAM PO PARAPPRAM, THALASSERY – 670 741 12. CHERIYATH RATHI, AGED 50 YEARS GOVINDA, PO PARAPPRAM THALASSERY – 670 741 13. CHRIYATH SATHI, GOVINDA AGED 43 YEARS, P O PARAPPRAM THALASSERY 670 741 (SUPPL.APPELLANTS 11 TO 13 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 1ST APPELLANT AS PER ORDER DT.24.6.2011 ON IA 1333/09) BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENTS/RESPONDENTS 2 AND 3 IN IA & RESPONDENTS 3 & 4 IN OS ----------------------------------------------------------------------- 1.CHERIYATH KOUSU, D/O.CHERIYAT DEVAKI, OCCUPATION NIL RESIDING AT THADATHIL, PEEDIKAYUIL HOUSE )( DIED AND LEGAL MADATHUMBHAGAM )( HEIRS IMPLEADED 2. CHERIYATH MADHAVAN S/O.CHERIYATH DEVAKI BUSINESSMAN, NEW ASOKA BAKERY KOLASSERY, KAVUMBHAGAM, THALASSERY. ADDL.RESPONDENTS 3 TO 9 : 3. CHERIYATH RAMEELA, D/O.KOUSU 54 YEARS, THADATHIL PEEDIKAYIL HOUSE MADATHUMBHAGAM, THALASSERY 4. CHERIYATH SATHYABHAMA, D/O.KOUSU, 53 YEARS -DO- 5. CHERIYATH SARALA, D/O.KOUSU 49 YEARS -DO- 6. CHERIYATH RAMESH BABU )( DIED AND LEGAL S/O.KOUSU, 40 YEARS )( HEIRS RECORDED AS 377/93 -3- 7. CHERIYATH AJITHA, D/O.KOUSU, THADATHIL PEEDIKAYIL HOUSE MADATHUMBHAGAM, THALASSERY 8, SMT.V PUSHPA, W.O.SATHYASANDAN 35 YEARS, DO- 9.V.VYSHNAVU, S/O.SATHYASANDAN (MINOR) 8 YEARS, REP BY GUARDIAN AND MOTHER SMT.V PUSHPA, W/O.SATHYASANDAN -DO- (LEGAL HEIRS OF DECEASED 1ST RESPONDENT IMPLEADED AS ADDL.R3 TO R9 AS PER ORDER DT.22.7.2011 ON IA 3812/04) ADDL.R10 10. CHERIYATH BALAKRISHNAN NEAR ARATTUTHARA MELUS ESTATE PO, MELUR THALASSERY – 670 661 (LEGAL HEIR OF FIRST APPELLANT IS IMPLEADED AS ADDITIONAL 10TH RESPONDENT AS PER ORDER DT.24.6.2011 ON IA 1333/09) (IT IS RECORDED THAT 6TH RESPONDENT DIED AND RESPONDENTS 3 TO 5 AND 7 ARE HIS LEGAL HEIRS AS PER ORDER DT.11.7.2011 BY MEMO DT.30.06.2011 CF NO.3346/11) ADV. SRI.M.P.ASHOK KUMAR SRI.GRASHIOUS KURIAKOSE, SENIOR ADVOCATE FOR R3, 4, 7 TO 9 SRI.K.V.SOHAN FOR R2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.377 of 1993-D ------------------------------------- Dated this the 22nd day of September 2011 Judgment This appeal is directed against the final decree in IA No.2079/89 in OS No.60/86 before the Sub Court, Thalassery. The plaintiff and defendants 2, 5 and 6 have filed this appeal. During the pendency of the appeal, the first and second appellants and also the first respondent died and their legal heirs have been brought on the party array. 2. OS No.60/86 was a suit for partition, in which a preliminary decree was passed. In terms of the preliminary decree, an application for passing the final decree was moved by the plaintiff as per IA No.2079/89. A commissioner was deputed and he filed a report and plan. Objections were filed by the plaintiff to the commissioner's report and plan and so, a fresh report and plan was obtained. The said report and plan was accompanied by a statement of accounts also. It seems, the plaintiff and AS 377/93 2 others again filed objections to the commissioner's report so filed and the court below found that the objections were untenable and passed a final decree, accepting the commissioner's report into file namely Exts.C6 to C8. It is the said decree that is assailed in this appeal. 3. The learned counsel for the appellant pointed out that the court below has not considered the various objections raised by the appellants to the fresh report filed by the commissioner wherein they had contended that the allotment made is inequitable and is not in accordance with the preliminary decree. The learned counsel pointed out that though serious objections had been filed to the commissioner's report, they have not been considered by the court below. The learned counsel drew attention of this court to the fact that the commissioner accepted the value of item No.4 as Rs.10,000/- which was initially valued at Rs.1,000/-. He did not take any labour to ascertain whether the valuation in respect of the other properties AS 377/93 3 needs to be revised. Objection was taken to the allotment of residential houses to persons other than the plaintiff. It was without considering these vital aspects that the final decree has been passed by the lower court and therefore, it is clearly unsustainable and therefore, the matter requires re-consideration. 4. The learned counsel for the respondents, on the other hand, pointed out that after the filing of the initial report, when the plaintiff filed objections to the report and plan, who is one of the appellants herein, the main objection was regarding the valuation of item No.4. The commissioner had valued the said item at Rs.1,000/-. The learned counsel also pointed out that it is interesting to note that when initially objections were filed, the grievance of the plaintiff was that the other properties have been over-valued and he had no other grievance except in respect of item No.4. The learned counsel also brought to the attention of this court that after the remittance of the AS 377/93 4 report, the commissioner had made certain modifications and had alloted plot to the plaintiff as per the valuation claimed by him. Moreover, the learned counsel also pointed out that since the parties have already taken delivery of the respective properties and have made improvements therein, it may not be equitable for the court to reconsider the issues at this point of time. 5. Apart from the fact that the parties have taken delivery of the properties and might have made improvements therein, there is absolutely no merit in the appeal. After the commissioner filed the initial report and plan, objections were filed by the plaintiff and others and the main objection raised was regarding the valuation of item No.4. According to them, the property was much more valuable than that was assessed by the commissioner. The commissioner had assessed the value @ Rs.1,000/-. It is pointed out that the valuation should have been made at least at Rs.10,000/- unlike other properties which have low AS 377/93 5 lying areas. It is also significant to notice that the objection was that the other properties were overvalued and there was no grievance with respect to the allocation of residential plots to various sharers as per the first report. After the court remitted the report and plan to the commissioner, he filed Exts.C6 to C8 reports and plan. It is pointed out that with certain modifications made in consensus with the directions issued by court, he has chosen to allot plot no.4 to fourth defendant, which the plaintiff valued @ Rs.10,000/-. It is also observed that the allotment so made to the fourth defendant was not objected to by the second defendant and others. 6. It is true that the appellants had filed objections to the commissioner's report, filed after it was remitted to him, in which several grounds were taken which were conspicuously absent in the earlier objection. The earlier objection pertains only to the valuation of item No.4 and no other aspects. In fact, as already noticed, the AS 377/93 6 grievance was that the other properties were over-valued. There is no justification in now claiming that when item no.4 was revalued at Rs.10,000/- correspondingly, the value of other plots also should have been revised. The court below has considered all the relevant aspects and has come to the conclusion that the allotment made by the commissioner is just, fair and equitable. The appellants cannot file objections on piecemeal basis. Objections were taken to the first report and plan and a revised report and plan were filed taking into consideration, the relevant objections made after making the necessary adjustments. 7. There is nothing to show that the court below has erred in any manner in accepting the commissioner's report and plan and accordingly passing the final decree. This appeal is without any merits and it is liable to be dismissed. I do so. No order as to costs. P.Bhavadasan, Judge sta AS 377/93 7 AS 377/93 8