IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 RSA.No. 21 of 2008 ------------------------------- AS.236/2004 of ADDL. DISTRICT COURT, THALASSERY IA.3426/2001 of ADL.SUB COURT, THALASSERY .................... APPELLANTS/APPELLANTS/DEFENDANTS 2 & 3: 1. THEKKEVEETTIL RANJITH, S/O SARASWATHI, RESIDING AT VADAVATHI HOUSE, DHARMADAM P.O., THALASSERY TALUK, KANNUR DISTRICT. 2. T.K.SUDHA NARAYANAN, D/O CHATHUKUTTY, -DO- BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT/RESPONDENT NO.1/PLAINTIFF: THERUVOTH THEKKE VEETTIL RESHMI, D/O SARASU, RESIDING AT VAYALILE VALAPPIL HOUSE, NEAR THOTTADA WEST U.P.SCHOOL, THOTTADA, KANNUR DISTRICT. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No. 21 of 2008 --------------------------- JUDGMENT This is appeal filed by Defendant Nos.2 and 3 in O.S.No.250/99 on the file of the Sub Court, Thalassery, assailing the allotment of shares as per the final decree passed in the suit. The appellants assailed the final decree before the first appellate court with no success and hence this Regular Second Appeal. 2. As per the preliminary decree dated 19.12.2000 in O.S.No.250/00, the scheduled property was directed to be divided into four equal shares and allotment of one share each to the plaintiff and the second defendant and two shares to the third defendant. In the final decree proceedings, a commission was issued to effect division by metes and bounds and submit a report. The Commissioner filed Exhibit C1 report and Exhibit C1(a) plan as also Exhibit C1(b) and C1(c) share lists and Exhibit C1(d) accounts. Considering the objections RSA 21/08 2 raised to the Commission report and plan and considering the equities in allotment, the trial court passed a final decree, whereby, plot A, having an extent of 2.35 cents and plot A1, having an extent of 4.53 cents in Exhibit C1(a) plan were allotted to the plaintiff. An amount of Rs.33,249/- was also ordered to be paid by the third defendant to the plaintiff as owelty. The plaintiff was also allowed mesne profits, cost, etc. Exhibit C1(a) plan was made part of the decree. 3. The allotment was assailed by Defendant Nos.2 and 3, who are, together, entitled to ¾ share, before the first appellate court and the first appellate court having not upheld their objections, this Regular Second Appeal is filed by Defendant Nos.2 and 3, contending that the share allotted to the plaintiff has caused inconvenience to them and that therefore, the commission report and plan be set aside and a fresh commission issued, so as to have an equitable division of the RSA 21/08 3 properties. 4. It is vehemently contended before me by the learned counsel for the appellants/Defendant Nos.2 and 3 that the 1/4th share due to the second defendant and the 2/4th share due to the third defendant has to be put together, as they don't want the share to be separated, as they are on very cordial terms and they want their plots together. All the same, the counsel has no case that division of shares need not be effected separately. The commissioner has allotted plots A and A1 (¼ share) to the plaintiff, plots B and B1 (2/4 share) to the third defendant and plots C and C1 (¼ share) to the second defendant. The appellants/Defendant Nos.2 and 3 have no case that plots B and B1 should not have been allotted to the third defendant. What the appellants want is that plot A allotted on the road side to the plaintiff, which is having road frontage of thirty three feet, has to be left along with plot B jointly to the appellants, who are RSA 21/08 4 Defendant Nos.2 and 3 or the said plot A has to be allotted to the first appellant/second defendant, so that the appellants will have the entire road frontage. Precisely, that is what is opposed vehemently by the respondent/plaintiff, as according to her, if the A plot, which is having only 2.35 cents, remains allotted to her, she can put it to use for the construction of a shop building and that the plots, behind the Tharavadu house in B plot, do not have even 1/10th importance of the A plot. It is also contended for the appellants that the Tharavadu house is there in B plot and that it must have sufficient road frontage and courtyard and by carving out A plot, the view of the Tharavadu house is lost. The house in B plot is not rendered without sufficient road frontage, as on the eastern side, there is 48 feet width road frontage, whereas, for A plot, road frontage is only 33 feet. The passage that is now being used is straight towards east from the house RSA 21/08 5 in the B plot and the gate also is installed in such a way so as to have a view of the house from the road. That remains unaffected by carving out A plot at the north eastern corner on the road side for the plaintiff. 5. A suggestion was put from Court to the appellants/Defendant Nos.2 and 3 as to whether Defendant Nos.2 and 3 would be prepared to take A1 plot in lieu of C plot, when it was argued that allotment of C1 plot to the third defendant is not to serve any purpose. If at all A1 plot along with C2 plot is taken by the third defendant, that would be a convenient plot and the plots alloted to the appellants/Defendant Nos.2 and 3 will remain in one block as well. But, they do not want such an allotment. This shows that the sole purpose Defendant Nos.2 and 3 joining and filing this appeal is to fight against the plaintiff and to render her to have an unimportant plot behind the B plot. I am not of the view that to enable such a RSA 21/08 6 course, the final decree has to be reversed and the case has to be remitted back for passing a final decree afresh, making allotment of plots as desired by Defendant Nos.2 and 3 to the prejudice of the respondent/plaintiff. There is absolutely no merit in this appeal as already observed by this Court in the order dated 26.5.2000 and there is no substantial question of law arising for consideration by this Court in this Regular Second Appeal. This Regular Second Appeal, in the circumstances, is dismissed in limine, refusing admission. 13th June, 2008 (K.P.Balachandran, Judge) tkv