IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 RSA.No. 735 of 2009() --------------------- AS.11/2008 of SUB COURT, KOYILANDY OS.130/1987 of MUNSIFF COURT, KOYILANDY (FDIA 420/1989) .................... APPELLANT/RESPONDENT/1STRESPONDENT ----------------- K.N.KRISHNAN, S/O.APPU, VATAKKE CHEVE PURAKKAL, VENGALAM DESOM, THIRUVANGOOR,CHEMANCHERI VILLAGE, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.K.P.SUDHEER RESPONDENTS/APPELLANT/PETITIONER, R2 TO R5 & R7. --------------------- 1. K.N.NARAYANAN, S/O.APPU,MINI VIHAR, VENGALAM, CHEMANCHERRY VILLAGE, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. K.CHANDRAMATHI, D/O.APPU, KOYANAM PARAMBATH HOUSE, UMMARATH THAZHAM, POST MEDICAL COLLGE, PALAZHI AMSOM DESOM, KOZHIKODE. 3. K. LEELA, D/O.APPU, MANGARI KUNI HOUSE, ELATHUR VILLAGE, DESOM, P.O.ELATHUR-673 303. 4. K.SOUMINI, D/O.APPU, KOLLARIKANDY PARAMBIL, MALAPPRAMBU DESOM, CIVILSTATION, KOZHIKODE. 5. K.SAROIJINI, D/O.APPU, KUNNATHKOOTTA THAZHATH, MANKAVE VILLAGE DESOM, KOZHIKODE. 6. A.PRABHAVATHY, D/O.APPU, ERAMMANKANDY HOUSE, P.O.KOLLAM, KOYILANDY,VIYYUR VILLAGE,KOYILANDY TALUK, KOZHIKODE DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.735 OF 2009 --------------------------- DATED THIS THE 6TH DAY OF AUGUST, 2009 JUDGMENT The lst respondent in the final decree proceedings in O.S.No.130/87 on the file of the Munsiff's Court, Koyilandy is the appellant. This Appeal is directed against the judgment and decree in A.S.No.11/2008 on the file of the Sub Court, Koyilandy. 2. Plaintiffs in O.S.No.130/87 applied for passing a final decree in terms of the preliminary decree. In the preliminary decree for partition dated 30/11/1988 the Munsiff's Court directed that the property shall be divided into 56 equal shares. The plaintiff is entitled to get 9/56 shares, defendants 1 to 5 are entitled to get 9/56 shares and defendants 6 and 7 together are entitled to get 2/56 shares. The lst defendant in the suit contended in the final decree proceedings that his house may be -2- R.S.A.No.735 set apart to his share along with the well, toilet and the memorial of his father, since he is residing in the house along with his family. 3. The Commissioner submitted a report and plan in which it was reported that it is impossible to effect partition and division of 50 shares, since the extent of the property is only 20 cents. The matter was considered by the Appellate Court. This Court by judgment dated 18/12/2001 in S.A.No.728/97 permitted the lst respondent in the final decree, who is the appellant herein, to purchase the shares of others. In the circumstances, the final decree court noted that the plaint schedule property has got a very high potential value, as it is located nearby the National Highway and that there are so many establishments in the vicinity. By Ext.C12 report the Commissioner has given a valuation account giving details of each shares on the 3 relevant dates. The report was accepted by the court below and observed that it is based on sound judgment and therefore it can be relied -3- R.S.A.No.735 on. The court below based on Ext.C12 report passed a final decree by which the appellant herein is allowed to purchase the share of the lst petitioner and respondents 2 to 7 and allotted the property to the appellant and directed to pay an amount of Rs.68,700/- to the first petitioner and respondents 2 to 5 each and Rs.15,300/- to the respondents 6 and 7 together. 4. The decree and judgment was challenged in appeal by the respondents herein. The question was re-appreciated and the final decree passed by the trial court was modified. The Appellate Court ordered that the appellant herein shall deposit a sum of Rs.4,78,930/- being the value of the shares to be distributed to other sharers and issued appropriate directions. Aggrieved by the enhanced rate of valuation fixed by the Appellate Court, the lst respondent in the final decree proceedings filed the present second appeal. 4. The matter rests on a narrow campus. The trial court fixed the market value of the property as on the date of -4- R.S.A.No.735 application filed under Section 3 of the Partition Act. The Appellate Court modified and fixed the market value of the property as on date of judgment in the S.A.No.728/1997. Aggrieved by the said fixation the lst respondent in the final decree proceedings filed the present appeal. I cannot endorse the fixation of the market value by the final decree court stating that the value to be fixed is the value as on the date of the application filed under Section 3 of the Partition Act. I do not find any reason to interfere with the fixation of the market value. No grounds are made out by the appellant for invoking the jurisdiction under Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and accordingly it is dismissed in limine. The learned counsel for the appellant submitted that he may be given six months' time to deposit the market value of the property as found by the Lower Appellate Court. The request is -5- R.S.A.No.735 considered favourably and four months' time is granted for depositing the said amount before the final decree court. HARUN-UL-RASHID, Judge. kcv.