IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 RFA.No. 56 of 2009 -------------------- ( OS.243/2001 OF PRINCIPAL SUB COURT,THALASSERY ) APPELLANT/3RD RESPONDENT/6TH DEFENDANT: -------------------------------------------------------- P.K.RATNA VALLI, W/O.S.A.RAVINDRAN, MOYAN HOUSE, EDEKKEPURAM, KANNAPURAM AMSOM AND DESOM, CHERUKUNNU, KANNUR TALUK. BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS/APPELLANT AND RESPONDENTS 1 AND 2/PLAINTIFF AND DEFENDANTS 1 AND 2: ---------------------------------------------------------------------------- 1. P.K.SATHYA BHAMA, D/O.MADAVI AMMA, M.I.G. 11 B 49, GULALAPALAYAM COLONY, C/O.K.K.BALAKRISHNAN NAIR, P.O.MALAKKPURAM, VISHAKHAPATTANAM, ANDHRA PRADESH. 2. P.K.GOPALAKRISHNAN NAIR, S/O.NARAYANI AMMA, U.38 A/8-DFL CITY, PHASE 111, P.O.GURGAON THROUGH POWER OF ATTORNEY HOLDER K.K.BALAKRISHNAN NAIR, VIJAYALAKSHMI SADAN, EDAKKEPURAM, KANNAPURAM P.O., CHERUKUNNU, KANNUR DISTRICT. 3. P.K.K.RAMAN, S/O.NARAYANI AMMA, RESIDING AT 55A, POCKET-C, ASHOK VIHAR 111, DELHI THROUGH POWER OF ATTORNEY HOLDER K.K.BALAKRISHNAN NAIR, VIJAYALAKSHMI SADAN, EDAKKEPURAM, KANNAPURAM P.O., CHERUKUNNU, KANNUR DISTRICT. BY ADV. BINOY RAM.V. CAVEATOR THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 27/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. ........................................................................ R.F.A. No. 56 OF 2009 ......................................................................... Dated this the 27th January, 2009 J U D G M E N T Ramachandra Menon, J. : Sustainability of the judgment and final decree passed by the Sub Court, Thalasserry in O.S.No. 243 of 2001 is the subject matter involved in this appeal. 2. The Original Suit was filed by the first respondent herein seeking partition of the plaint schedule properties and for separate allotment of 5/18 shares therein contending that she was eligible for the said extent; whereas defendant Nos. 1 and 2 (respondent Nos. 2 and 3 herein) were entitled to get 12/18 shares together and the sixth defendant ( the appellant herein) was entitled to get only 1/18 share . 3. It is revealed from the materials on record that the R.F.A. No. 56 OF 2009 2 appellant was set ex parte by the trial court and the ex parte judgment and decree was sought to be challenged by filing R.F.A. No. 17 of 2006 before this Court, where interference was declined, as barred by limitation. 4. As per the preliminary decree, the appellant was allotted 1/18 share; the first respondent/plaintiff was allotted 5/18 shares and respondent Nos. 2 and 3 (defendant Nos. 1 and 2) were allotted 12/18 shares. An advocate commissioner was appointed for effecting the partition by metes and bounds, who filed a report before the court below dividing the properties and earmarking the separate shares. Thereupon, the appellant/6th defendant filed I.A.No. 2816 of 2005 for remitting the commissioner's report and to re-allot her share at a convenient place. Pursuant to the order in the above I.A., the commissioner re-inspected the property and filed a fresh report along with a plan whereby a separate extent of 2.37 cents shown as plot C1 in Ext.C4 plan was allotted towards her share; simultaneously effecting such other measures for equalisation of shares among R.F.A. No. 56 OF 2009 3 separate allottees. 5. In the meanwhile, W.P.(C) No. 6926 of 2008 was filed by one of the beneficiaries of the partition for expediting the steps for passing the final decree . Taking note of the directions contained in the judgment dated 28.02.2008 rendered therein, FDIA. 4866 of 2003 filed by the first respondent/plaintiff was finalised and final decree was passed in terms of the revised report of the commissioner, which is under challenge in this appeal preferred by the 6th defendant in the suit stating that I.A.No. 2904 of 2007 filed by her putting forth a claim for allotting the house in her name, for remitting the revised report and plan submitted by the commissioner, was not properly considered and was dismissed by the court below by its order dated 12.12.2007, followed by the final decree dated 25.03.2008. 6. Obviously, the case projected in the present appeal centres round the house situated in the 'A' schedule property where she is stated as residing and contending that it was to be R.F.A. No. 56 OF 2009 4 allotted in her name , particularly since she is having no house of her own and that she is ready to purchase A schedule property along with the house where it is situated. It is pointed out by the appellant that the Commissioner has not reported as to the identity of the particular person who is actually residing in the plaint A schedule property and further that the share of 2.37 cents now allotted to her cannot be used for any purpose. In this context, it is very much relevant to note that the appellant had no such case any time before passing the preliminary decree. Upon effecting the partition by the commissioner, the report of the commissioner was sought to be set aside by filing I.A.No. 2816 of 2005, for allotting at least 2 cents at a convenient place. The claim for allotting the house in her name was conspicuously absent, which, in fact, was projected only subsequently. The question, as to who was actually residing in the house situated in A schedule property or whether there were rival claims in respect of allotment of the said house was never a subject matter before the court below till the preliminary decree R.F.A. No. 56 OF 2009 5 was passed and the property was partitioned by the commissioner in tune with the terms of the said decree. This being the position, the contention of the appellant that the court below went wrong in not considering the facts properly as to her eligibility to have the house allotted in her is without any pith or substance 7. Another glaring aspect to be noted from the impugned final decree is that it has been observed in paragraph No.3 therein that pursuant to the direction given by this Court vide judgment dated 28.02.2008 in W.P.(C) 6926/08, the Final Decree Application was advanced; that the I.A. for stay filed by the 3rd respondent therein , i. e., the appellant herein was stated as 'not pressed'; that none of the parties had chosen to adduce any oral evidence and further that they had no objection in passing the final decree after accepting the B share list prepared by the commissioner. This being the position, it is not at all proper or correct for the appellant to turn cback through the above appeal, which is cited by the other side as only an R.F.A. No. 56 OF 2009 6 attempt to protract things. Admittedly, the appellant is having only 1/18 share of the total shares in the partible property which has been separately earmarked and given to her as shown in the report and plan of the commissioner. The final decree passed by the court below is perfectly in conformity with the facts and evidence available on record and it is not liable to be varied in any manner so as to suit the wishful thoughts of the appellant. We find absolutely no ground to interfere with the impugned verdict. The appeal fails and it is accordingly dismissed. The parties shall bear their costs. KURIAN JOSEPH, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk R.F.A. No. 56 OF 2009 7