IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 OP(C).No. 834 of 2010(O) ------------------------ OS.40/1985 of SUB COURT, OTTAPPALAM .................... PETITIONER/PETITIONER-FINAL DECREE APPLICANT ---------------------------------------------------------------- JANAKI,D/O.LATE MULAYANKUZHI MALLI, VENGASSERI AMSOM AND DESOM,OTTAPPALAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM RESPONDENTS/ RESPONDENTS-RESPONDENTS 2 TO 12 IN THE FINAL DECRE ----------------------------------------------------------------- 1. VELAYUDHAN,S/O.LATE MULAYANKUZHI MALLI, VENGASSERI AMSOM AND DESOM,OTTAPALAM TALUK 679 101 2. MADHAVI,D/O.LATE MULAYANKUZHI MALLI, VENGASSERI AMSOM AND DESOM,OTTAPALAM TALUK 679 101 3. LAKSHMI,D/O.LATE MULAYANKUZHI MALLI, VENGASSERI AMSOM AND DESOM,OTTAPALAM TALUK 679 101 4. CHANDRAN,S/O.LATE MULAYANKUZHI MALLI, VENGASSERI AMSOM AND DESOM,OTTAPALAM TALUK 679 101 5. YASODA,D/O.LATE MULAYANKUZHI MALLI, VENGASSERI AMSOM AND DESOM,OTTAPALAM TALUK 679 101 6. SAROJINI,W/O.LATE MULAYANKUZHI RAMANKUTTY,VENGASSERI AMSOM AND DESOM, OTTAPALAM TALUK 679 101. 7. SARITHA,D/O.LATE MULAYANKUZHI RAMANKUTTY,VENGASSERI AMSOM AND DESOM, OTTAPALAM TALUK 679 101. OP(C).No. 834 of 2010 8. SATHI(MINOR),D/O.LATE MULAYANKUZHI RAMANKUTTY,REP.BY HER MOTHER SAROJINI, W/O.LATE MULAYANKUZHI RAMANKUTTY, VENGASSERI AMSOM AND DESOM, OTTAPALAM TALUK 679 101. 9. SANGEETHA(MINOR),D/O.LATE MULAYANKUZHI RAMANKUTTY,REP.BY HER MOTHER SAROJINI, W/O.LATE MULAYANKUZHI RAMANKUTTY, VENGASSERI AMSOM AND DESOM, OTTAPALAM TALUK 679 101. 10. SANTHOSH(MINOR),D/O.LATE MULAYANKUZHI RAMANKUTTY,REP.BY HER MOTHER SAROJINI, W/O.LATE MULAYANKUZHI RAMANKUTTY, VENGASSERI AMSOM AND DESOM, OTTAPALAM TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.834 of 2010 --------------------------------------- Dated this 03rd day of December, 2010 JUDGMENT Plaintiff No.1 in O.S.No.40 of 1985 of the court of learned Sub Judge, Ottappalam is the petitioner before me challenging report of the Advocate Commissioner which the court below refused to set aside by Ext.P6, order. 2. A suit for partition was instituted in the year, 1985 and a preliminary decree was passed. Now, even after lapse of quarter of a century final decree has not been passed. In the pending final decree proceedings on the request of petitioner, Advocate Commissioner inspected the property and submitted report. That report was objected by petitioner on various grounds and filed I.A.No.395 of 2010 to set aside the report. Court below dismissed that application. Though, various objections are raised in I.A.No.395 of 2010, main contention which are now urged before me are regarding valuation of property which the petitioner said is grossly inadequate and that different standards is adopted for valuation of standing timber in different plots which Advocate Commissioner has allotted to the respective shares. O.P(C).No.834 of 2010 : 2 : 3. So far as valuation of property is concerned, Advocate Commissioner has valued paddy land at `.300/- per cent and garden land at `.Rs.800/- per cent. It may appear that the value fixed by Advocate Commissioner is comparatively low but parties including petitioner are not affected by that valuation since for the entire paddy field and garden land (allotted to the different sharers) the same standard has been adopted by the Advocate Commissioner in the matter of fixation of valuation. Hence valuation of the property requires no interference. 4. The next is concerning valuation of standing timber including a bamboo cluster. It is contended that the bamboo cluster is worth `.16,000/- but it is not valued. Court below observed that Commissioner has taken the pains to value even the smallest of trees found in different plots even worth `.100/- and in that situation contention that bamboo cluster was omitted, cannot be accepted. Learned counsel points out that bamboo cluster has not been separately valued in the report. Assuming so, having regard to the possible value of bamboo cluster and taking into account fact of litigation since the last quarter of a century, I do not think it necessary to set aside the report for the mere reason of one bamboo cluster was valued. O.P(C).No.834 of 2010 : 3 : 5. The last objection is concerning difference in value given to teak trees. Learned counsel pointed out that valuation given for similarly placed teak trees is different. But on going through the report difference is only minimal, @ `.500 per tree. There could be variety of reasons for the Commissioner giving different value for teak trees though age, girth etc are same, such as utility of timber having regard to any damage, length of the main trunk -- etc. These are not matters which in my view result in any gross injustice to the petitioner so that, this court is required to interfere under Article 227 of the constitution. The Supreme Court in Sneh Gupta Vs. Devi (2009(6) SCC 194) has stated that the power under Article 227 of the Constitution is to be exercised only when there exists an error apparent on the face of the record or if any other well known principle of judicial review is found applicable. In Jai Singh & Ors. Vs. Municipal Corporation of Delhi & Ors. (2010(9) SCC 385) it is held that correctional jurisdiction can be exercised only where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. High court cannot lightly or liberally act as an appellate court and re-appreciate evidence. Having regard to the above decisions, I am not O.P(C).No.834 of 2010 : 4 : persuaded to think that there is any jurisdictional error or error apparent on the face of record or gross negligence committed by the court below while appreciating contentions raised by petitioner on the question of setting aside the report and plan or that this court is required to interfere under Article 227 of the Constitution. The litigation has almost crossed quarter of a century. It is high time that the parties got their share of the property and lived in peace. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-