IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 AS.No. 237 of 2001(C) -------------------------------- OS.285/1988 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT(S): (IS RESPONDENT/IST DEFENDANT) ----------------------- K.P.CHANDRAN, S/O.CHATHAPPAN, AGED 56 YEARS, KOOTTAMOPPI PARAMBIL, PAYIMBARA, KUNNAMANGALAM, KOZHIKODE. BY ADV. SRI.A.P.CHANDRASEKHARAN (SR.) SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): (PETITIONER & RESPONDENTS 2 TO 4/ PLAINTIFF & ------------------------- DEFENDANTS 2 TO 4) 1. K.P. THANKAMANI, W/O. KUNHIRAMAN, AGED 50 YEARS, EDATTU DESOM, KUNNIMANGALAM P.O., EDATTU, PAYYANNOOR. 2. K.P.RADHAMANI, D/O. CHATHAPPAN, AGED 45 YEARS, NARIKKUNI P.O., KOZHIKODE. 3. K.P.VASUDEVAN, S/O. CHATHAPPAN, AGED 50 YEARS, N.G.O. QUARTERS, B-1, VELLIMADUKKUNNU, KOZHIKODE. 4. K.P.SUKUMARAN, S/O. CHATHAPPAN, AGED 53 YEARS, U.D.CLERK, TALUK OFFICE, KOZHIKODE. ADV. SRI.RAJU K.MATHEWS FOR R2 SRI.THOMAS ANTONY FOR R1 SRI.P.V.KURIAKOSE FOR R3 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.1707/2001 IN AS. 237/2001 Dismissed 15.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J ----------------------- A.S.No. 237 OF 2001 --------------------------------- Dated this the 15th day of January, 2009 JUDGMENT This is an appeal preferred by the 1st defendant against the final decree passed in O.S. 285/1988 of the Subordinate Judge, Kozhikode. The suit was one for partition wherein the property was ordered to be divided into five equal shares and the plaintiff and defendants were entitled to one out of five shares each. The value of the repairs and renovation of the house was reserved in favour of the 1st defendant, so also the tank and the pump shed in his favour. A commissioner was appointed and he had inspected the property and submitted two plans C1 and C2. He divided items 1 and 3 into 3 plots and item No. 2 into 3 plots. Plot No. 1 was alloted to D4 having an extent of 61.09 cents. Plot No. 2 was alloted to D1 having an extent of 56 cents and Plot No. 3 to D2 having an extent of 12 cents. Plot No. 4 was alloted to the share of D2 having an extent of 39.85 cents. Plot No. 5 to D3 having an extent of 47.50 cents and Plot No. 6 to the plaintiff having an extent of 45.39 cents. Or in other words items 1 and 3 together had an extent of 129.09 cents and items 2 had an extent of 132.74 cents. The final decree court had alloted the properties accepting the Commissioner's plan A.S. 237/2001 -2- and report. It is against that decision the 1st defendant has come up in appeal. 2. The learned counsel for the 1st defendant had canvassed before me that the valuation shown to the property is not correct and at any rate the allotment of the well to the 2nd defendant is incorrect because it is the only source of water for his house. So far as the value of the property is concerned, it can be seen that the Commissioner had done it equitably and as far as possible he had taken steps to see almost equal extent of properties are allotted to the sharers. He had taken into consideration the value for the said purpose and had equitably allotted the property. In a suit for partition there cannot be always division of the property in equal extent of metes and bounds for the reasons the lie of the land, the convenience of the parties, the access to the property etc. requires consideration. A perusal of the 1st plan which deals with items 1 and 3 would reveal that the Commissioner had divided the property in such a way that each of the sharer is given a road frontage. It has also to be stated it is the 1st defendant who has been allotted the house and therefore by any stretch of imagination he cannot have any grievance regarding the way in which the A.S. 237/2001 -3- allotment is done. Therefore I do not propose to interfere with the said allotment. 3. The learned counsel then had drawn my attention to the plan. It is submitted by him that the well which is situated in the property from where water is taken is allotted to the share of the 2nd defendant, whereas the pump shed which is used for drawing water is allotted to the share of 1st defendant and it is only the residential house of D1 that is available therein and the 2nd defendant is staying at a different place. The learned counsel also would submit that by allotting the well to the 2nd defendant and permitting the 1st defendant to take water from the well may not solve the problem for the reason if the property changes hands, it will lead to another litigation and so he would submit that the said plot be replaced by some other plot in favour of 2nd defendant. I feel it may not be very easy to shake the division already effected by the Commissioner and the parties are already litigating for the last 21 years without a final result. So it is desirable that a remand is averted and at the same time it has to be seen that no injustice is done to any of the parties in the matter. I feel there is some force in the contention of the 1st defendant that the well should be given A.S. 237/2001 -4- to him. 4. I heard the arguments of the counsel for the 2nd defendant also and 2nd defendant has filed an affidavit before the court agreeing for taking water by 1st defendant from the well. But it may not solve the problem for the reason if it changes hands or the relationship deteriorates it would further lead to complication. There is no point in reserving that well or allotting that well to 2nd defendant especially when she is residing away from the place, where as 1st defendant is using the water from that well and he is the person who is residing in the house which is situated in that item of property. Therefore I feel that the well situated in Plot No. 3 which is allotted to 2nd defendant can be alloted in favour of the 1st defendant and the 1st defendant be directed to pay the value of the well plus some additional amount for laying the pipe for the reason that if the pipeline is laid through the portion of a property it makes practically impossible for the 2nd defendant to enjoy which will create further complications. Therefore I direct the 1st defendant herein to have the pipe taken through the northern extremity of Plot No. 3 to the area of Plot No. 2 and then laying the pipeline through the appellants property and to the water tank, whatever it A.S. 237/2001 -5- may be. So by putting the pipeline through the northern extremity of the 2nd defendant's property it may cause some difficulty and therefore I direct the 1st defendant to pay a sum of Rs. 2,000/- more to the 2nd defendant. Or in other words for reallotting the well to the 1st defendant coupled with the laying of pipe through the northern extremity, additional amount of Rs. 5,000/- has to be paid by the 1st defendant to the 2nd defendant and for that amount also the share of the 1st defendant shall be a charge. 5. In the result, the appeal is disposed of with a modification that the well situated in Plot No. 3 in Ext. C1 plan is allotted to the 1st defendant and the 1st defendant is permitted to lay the pipe through the northern extremity of Plot No. 3 to the point it enters the property alloted to 1st defendant and from there he may have to take the pipeline through his own property. It is further directed that the 1st defendant is to pay a sum of Rs. 5,000/- to the 2nd defendant and for the said amount the property alloted to the 1st defendant shall be a charge. The appeal is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm