IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 RSA.No. 206 of 2010() ---------------------------------- AS.38/2008 of IST ADDL.DISTRICT COURT, KOZHIKODE OS.21/2006 of SUB COURT, QUILANDY .................... APPELLANT/APPELLANT/RESPONDENT/DEFENDANT ----------------------- PUTHUKUDI PARAMBATH BALAN NAIR, S/O.APPU NAIR, AGED 70 YEARS, RESIDING AT CHEMANCHERI AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.P.K.SURESH KUMAR SRI.V.C.MADHAVANKUTTY RESPONDENT(S): RESPONDENT/PETITIONER/PLAINTIFF ------------------------- KUNIYIL DAMODHARAN NAIR, S/O.APPU NAIR, AGED 68 YEARS, RESIDING AT CHEMANCHERI AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- RSA No.206 of 2010-G ------------------------------------- Dated 11th June 2010 Judgment The respondent in the final decree proceedings namely, in FDIA No.410/07 in OS No.21/06 before the Sub Court. Koyilandy, is the appellant before this Court. The parties and exhibits are hereinafter referred to, as they are available before the Trial Court. 2. OS No.21/06 is a suit for partition. A preliminary decree was passed on 24.01.2007, directing that the plaint schedule property be partitioned into two halves, one to the plaintiff and the other to the defendant. The final decree application was filed by the plaintiff. A counter was filed in the application, wherein the respondent pointed out that all the four items of properties were to be divided into equal shares. A Commissioner was appointed and the Commissioner filed Exts.C1 to C7 reports and plans. Before the Trial Court, the respondent examined RW1. RSA 206/10 2 3. Though various objections were raised by the respondent to the Commissioner's reports and plans, the Trial Court accepted them and accordingly passed a final decree, which reads as follows : “1) Plots A1 to A7 in Ext.C2 plan, Plot A8 in Ext.C1 plan and plots A9 and A10 in Ext.C3 plan be allotted to the share of the petitioner/plaintiff. 2) Plots B, B1 to B3 in Ext.C1 plan and plots B4 to B10 in Ext.C2 plan be allotted to the share of the respondent/defendant. 3) The respondent is liable to pay a sum of Rs.9,750/- to the petitioner as owelty amount and the plots allotted to respondent will be made a charge for the said amount. 4) The parties are entitled to proportionate costs of these proceedings. 5) Since the petitioner/plaintiff who is entitled to mesne profits has relinquished the claim, no order regarding the mesne profits is passed. 6) The petitioner shall produce necessary stamp paper for engrossing the final decree in one month.” 4. It needs to be noticed that the Commissioner has allotted Item No.1 to the respondent for the simple reason that major portion of his house is situated in that property whereas Item No.3 was allotted to the petitioner as his house is situated in that portion of the property. The Trial Court found it to be a just allocation. Dissatisfied with the decree passed by the Trial RSA 206/10 3 Court, the respondent carried the matter in appeal as AS No.38/08 before the District Court, Kozhikode. 5. It is seen that before the District Court, three points were urged. The first is that each of the items i.e., four items with regard to the preliminary decree was passed, should be equally divided into two halves and shares should be allotted. The second contention was that the plaint schedule item No.1 is having only an extent of 90 cents whereas the Commissioner has noticed one acre 10 cents and for that reason, the report cannot be accepted. The third contention was that Item No.2 property was not measured by the Commissioner even though specific direction for measuring and dividing the said plot was issued by the court. All the three contentions were found to be unsustainable by the lower Appellate Court. 6. The lower Appellate Court is perfectly justified in taking the view that the partition of the property does not mean that each item has to be equally partitioned. It means equalisation of shares that is to be provided to each of the sharers. The first contention was therefore, rightly rejected. As RSA 206/10 4 regards the extent of properties, the lower Appellate Court has found that the Commissioner had, in fact, measured the property and the appellant had filed IA No.1308/02 praying to remit the plan and report. In the affidavit filed in support of that IA, he had taken an objection to the measurement made by the Commissioner. The lower Appellate Court had gone through the report and plan and found that there is no substance in the said contention. The Commissioner has divided Item No.1 into two shares, allotting 85 cents to the appellant and 25 cents to the respondent. Considering the various aspects, the lower Appellate Court found no reason to interfere with the allocation made by the Commissioner. The objection with reference to Item No.2 was also considered in detail by the court below. It was found that the said contention has no basis and is contrary to the records available in the case. The Commissioner had, in fact, measured the property and the plan submitted by him would reveal this fact. 7. Before this Court, the learned counsel for the appellant contended that at the time when the commission was taken out, the appellant and the respondent had orally agreed RSA 206/10 5 to exchange their shares. That has not been done. 8. There is nothing mentioned about that clause in the Commissioner's report. There is also nothing to show that at the time when the final decree was taken up, it was so agreed upon between the parties. Even before the lower Appellate Court, there was no such contention taken by the appellant. It is for the first time that such a contention is raised before this Court. Both the courts have concurrently found that the allocation made by the Commissioner is just and reasonable and in accordance with the preliminary decree and have accepted the report. There is no justification to interfere with the findings of the courts below. No grounds are made out to interfere with the findings. The appeal is without merits and it is accordingly dismissed in limine. P.BHAVADASAN, JUDGE sta RSA 206/10 6 RSA 206/10 7