IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 RSA.No. 566 of 2008 --------------------------------- AS.31/2003 of II ADDL. DISTRICT COURT, KOLLAM IA.787/92 IN OS.149/1986 of PRINCIPAL SUB COURT, KOLLAM .................... APPELLANTS/APPELLANTS 3&4/DEFENDANTS 7&8: 1. J.JERVAS, LILLY COTTAGE, THUYATHU WARD, VADAKKUMBHAGAM, KOLLAM. 2. ROSELY JERVAS, W/O. JERVAS, DO. DO. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: 1. ALIKUTTY, LILLY COTTAGE, VADAKKUMBHAGAM WARD, KOLLAM. 2. NIRMALA DANIEL, B. BIRMAL VEEDU OLAYIL, PALACE WARD, KOLLAM. 3. METTY FERNANDEZ, CHEKKUMMOODU WEST, THANGASSRY, KOLLAM-7. 4. LEELA MORRICS, KURASSALAM SUBRAMANGA MUTHALALI STREET, MADRAS-7. 5. PHILIP, ROSE VILLA, ERAVICHIRA EAST, SOORANADU SOUTH. 6. GRACE THOMAS, MEDEYIL VEEDU ADICHANALLOOR, KOLLAM. 7. MARRIYAMMA CLEMENT OF DO. DO. 8. VINCENT, AMBALATHARA, MUKALAIL VEEDU KIZHAKKEKARA MURI, KOTTARAKKARA. 9. JAYASREE SAMUEL, D/O. NEMESIOUS SREEMANDIRAM, TUEST-7 VADAKKUMBHAGAM WARD, KOLLAM. 10. SHYLAJA JOY OF DO..DO.. 11. GEETHA STEPHEN OF DO..DO.. 12. LETHA ANTONY OF DO..DO.. 13. SOBHA BABU OF DO..DO.. 14. MADHU BAIJU, OF DO..DO.. 15. ANTONY PETER ROMANS NEMESIOUS OF DO..DO.. 16. JOHNY GEORGE, S/O. THANKAMMA C/O. JACOB BENZILY, THANKAMMA MANDIRAM OLAYIL, PALACE WARD, KOLLAM. 17. MARGARETTE VINCENT, LALLY COTTAGE VANNARRPETTA, KUNOOR, NILGIRI. 18. FRANCIS.B, PAYIPPATT EBANAIZERR MUNDAKKAL, KOLLAM. 19. BOSE BENSILI, PAYPPADU VEEDU VADAKKUMBHAGAM, KOLLAM. 20. BEYATRIS LOUIS, PUTHEN VEEDU KAITHAVARAM, KOLLAM. 21. JACOB.B, THANKAMMA MANDIRAM PALACE WARD, OLAYIL , KOLLAM. 22. MARY BABU, PAYIPPADU VADAKKUMBHAGAM, KOLLAM. 23. JAYA BEN. P. BABU OF DO..DO.. 24. BENSILY P. BABU OF DO..DO.. 25. PRADEEP. P. BABU OF DO..DO.. 26. JOYICE JAYASREE.P.BABU OF DO..DO.. 27. MOLY SAMUEL, CELIN COTTAGE DOOR NO. 144, KUNOOR, TAMIL NADU. 28. VALSA SAMUEL OF DO..DO.. 29. SHERY SAMUEL OF DO..DO.. 30. SABU SAMUEL OF DO..DO.. 31. SHYLA SAMUEL OF DO..DO.. 32. JIMMY SAMUEL OF DO..DO.. 33. SHAJI SAMUEL OF DO..DO.. 34. THRESSIAMMA PHILIP, VADAKKUNNEL, KARUVATTA, ADOOR. 35. RABEKKA POUL, KANDATHIL VEEDU VADAKKUMBHAGOM, KOLLAM. 36. J.ROMANTEE, LILLY COTTAGE OF DO..DO.. BY ADV. SRI.C.V.ANTONY KOTHAMANGALAM FOR R2 BY SRI.K.S.MANU (CAVEATOR) R12 SRI.P.SREEKUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No.566 of 2008 --------------------------- JUDGMENT Appellants are defendants 7 and 8 in O.S.No. 149/86 on the file of the Sub Court, Kollam. They assail in this second appeal the final decree passed by the Sub Court, which was confirmed also in appeal by the first appellate court. 2. The contentions before me by the learned counsel for the appellants/ defendants 7 and 8 are that after the final decree they have purchased the shares of a few other sharers and thus, now they are entitled to plot Nos.2, 3, 4 and 7 in Exhibit C6(b) plan appended to the decree; that the tenth defendant is entitled to plot No.1 as also the pathway shown as plot No.8; that plot No.6 stands allotted to defendants 1, 3, 4 and 9 and plot No.5 stands allotted to the plaintiff; that in view of purchase of shares of a few other sharers by the appellants after the final decree passed by the trial court, he has filed an affidavit before the RSA 566/08 2 first appellate court swearing to those aspects and praying for allowing the seventh defendant to purchase the shares of other sharers including the plaintiffs, for which value has to be assessed by the court; that the residential building now in occupation of defendants 7 and 8 now stands alloted to the plaintiffs; that such an allotment works out harassment to defendants 7 and 8 and that therefore, the final decree be modified, as the submissions made on the last posting date, which resulted in passing of an order on 7.7.2008, has become unworkable consequent on refusal of the plaintiffs to dispose of their shares to the appellants. The tenth defendant has already expressed her unwillingness to dispose of her share along with the pathway provided in plot No.8, when the matter came up before this Court on 7.7.2008. Though the counsel for the plaintiffs submitted that if proper prize is paid, the plaintiffs will be prepared to sell plot No.5 also with the building therein to defendants 7 and 8, he submits RSA 566/08 3 today that the plaintiffs are prepared to give a go bye to plot No.5 allotted to them only in the event of another plot of equal extent with a building for their occupation is provided and not otherwise. To the said demand, defendants 7 and 8 are not agreeable. 3. It is worthy to note that the grievance of the appellants/defendants 7 and 8 arose only subsequent to passing of the final decree by the final decree court and when he purchased the plots allotted to several other sharers as well. He had no objection at all to the plan submitted by the Commissioner at the time of passing of the final decree by the final decree court. Subsequent purchase of plots alloted to the share of a few other defendants was as desired by the appellants themselves and if the plots allotted to such of those sharers were not convenient, he could have avoided purchasing of those shares and had he desired to purchase the plot allotted to the plaintiffs, he could have done that also RSA 566/08 4 negotiating the price with the plaintiffs. Without doing any of those things, there is no meaning in the appellants complaining that the residential building now in their occupation has to be vacated consequent on allotment of plot No.5 with the building therein to the plaintiffs. In the circumstances, the first appellate court was justified in rejecting the request made by the appellants/defendants 7 and 8. There is no merit in the contentions advanced by the learned counsel for the appellants and there is no question of law and much less, any substantial question of law that arises for consideration by this Court in this Regular Second Appeal. In the result, refusing admission, I dismiss this Regular Second Appeal in limine. 28th July, 2008 (K.P.Balachandran, Judge) tkv