IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 AS.No. 277 of 2003() ----------------------------- AGAINST THE ORDER DATED 15/11/2001 IN IA. 946 /1998 IN OS.168/1993 of ADL.SUB COURT, THALASSERY .................... APPELLANT(S): 7TH RESPONDENT/8TH DEFENDANT ------------------------------------------ KAKKAN SREEDHARAN, S/O. RAMAN, AGED 48 YEARS, RESIDING AT KADIRUR AMSOM, DESOM, TELLICHERRY TALUK. BY ADVS. MR.T.A.RAMADASAN MR.A.K.ALEX RESPONDENT(S): PETITIONER & R1 TO 6 AND 8 PLAINTIFF/DEFTS.1 TO 7 --------------------------------- 1. KAKKAN RAGHAVAN, S/O. SANKARAN, AGED 68 YEARS, RETIRED ENGINEER, RESIDING IN SANKAR NIVAS, KADIRUR AMSOM, DESOM, TELLICHERRY TALUK. 2. KAKKAN CHATHU S/O. SANKARAN, AGED 70 YEARS, DOCTOR, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, TELLICHERRY TALUK. 3. SISTER, KAKKAN SULOCHANA, 59 YEARS, SANTHI NAGAR COLONY, KANNUR-2. 4. SISTER, PROBHAVATHI, NO OCCUPATION, 53 YEARS, DEVI NAGAR COLONY, QUARTERS NO.16 BILATHIKULAM, KOZHIKODE-6. 5. THEKKAN HAREENDRAN S/O. KALLIANI, AGED 45 YEARS, BUSINESS, KADIRUR AMSOM, DESOM, TELLICHERRY TALUK. 6. BROTHER, THAKKAN RAVEENDRAN, AGED 55 YEARS TEXTILE INSPECTOR, KADIRUR AMSOM, DESOM, TELLICHERRY TALUK. A.S. NO.277/2003 7. THOTTANVEETTIL SHEEBA, W/O. PANKAJAN, AGED 31 EARS, NO OCCUPATION, KURIKKILADI, VADAKARA, KOZHIKODE DISTRICT. 8. C.H.SUSHAMA D/O. MATHAVI, 51 YEARS, PRASANTH NAGAR, ULLOOR, THIRUVANANTHAPURAM. BY ADVS. MR.K.V.PAVITHRAN FOR R1,2,4 TO 7 MR.SHEJI P.ABRAHAM FOR R1,2,4 TO 7 MR.P.P.RAMACHANDRAN FOR R1,2,4 TO 7 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.2259/2003 IN AS. NO.277/2003 Dismissed 20.01.2009 SD/- P.N.RAVINDRAN, JUDGE TRUE COPY P.A. TO JUDGE TSS P.N.RAVINDRAN, J. ============== A.S. No.277 of 2003 ===================== Dated this the 20th day of January, 2009. J U D G M E N T The eighth defendant in O.S.No.168 of 1993 on the file of the Court of the Subordinate Judge of Thalassery, who is also the seventh respondent in I.A.No.946 of 1998 in O.S.No.168 of 1993 is the appellant in this appeal. The first respondent is the plaintiff in the suit and respondents 2 to 8 are defendants 2 to 7 and 9 therein. In O.S. No.168 of 1993, a preliminary decree for partition of the suit properties into eight equal shares and allotment of one such to the plaintiff was passed on 25-11-1997. Defendants 1 to 4 and 7 and 8 were held entitled to 1/8th share each and defendants 5 and 6 were jointly held entitled to one share. The first defendant passed away while the suit was pending and on her death, the ninth defendant was impleaded as her legal heir. 2. The suit property consists of two items of lands, item No.1 having an extent of 48 cents and item No.2 having an A.S.No.277 of 2003 -: 2 :- extent of 3 cents. The plaintiff moved for the passing of a final decree by filing I.A.No.946 of 1998. In the final decree application, the court below appointed an Advocate Commissioner to partition the suit property. The Advocate Commissioner appointed by the court below filed Ext.C1 report, Ext.C2 valuation accounts, Ext.C3 share list and Exts.C4 and C4 (a) plans. The appellant objected to the report submitted by the Advocate Commissioner and filed I.A.No.420 of 2000 praying that the report submitted by the Advocate Commissioner may be remitted to him. By passed order on 7-11-2001, I.A.No.420 of 2000 was dismissed holding that it lacks merit and has been filed only to protract and delay the passing of the final decree in the suit instituted in the year 1993. 3. The Advocate Commissioner allotted plot 'A' marked in Exhibit C4 plan jointly to the share of the plaintiff and defendants 1 to 3, 5 to 7 and 9 and plot 'B' to the share of the eighth defendant. Plot 'C' in Exhibit C4(a) plan was allotted to the share of the fourth defendant. In Exhibit C3 share list, the A.S.No.277 of 2003 -: 3 :- Commissioner had reported that the appellant/eighth defendant is entitled to receive the sum of Rs.10,329/- from the plaintiff and defendants 1 to 3, 5 to 7 and 9 towards owelty. The Advocate Commissioner had also reported that the fourth defendant is likewise entitled to receive the sum of Rs.14,087/- from the plaintiff and defendants 1 to 3, 5 to 7 and 9. The court below accepted the report and plans submitted by the Advocate Commissioner and passed a final decree in terms thereof. The eighth defendant has filed this appeal challenging the final decree passed by the court below. 4. The appellant does not dispute the allotment of plot 'A' in Exhibit C4 plan to the plaintiff, defendants 1 to 3, 5 to 7 and 9 jointly or plot 'C' in Exhibit C4(a) plan to the share of the fourth defendant. His only grievance is that the Commissioner ought to have instead of payment of owelty, allotted some more extent of land to him so that he can conveniently build a house in the land allotted to his share. I have gone through the reports and plans submitted by the Advocate Commissioner. A mere look A.S.No.277 of 2003 -: 4 :- at Exhibit C4 plan submitted by the Advocate Commissioner discloses that the land allotted to the share of the appellant has more road frontage than the land jointly allotted to the share of the plaintiff and defendants 1 to 3, 5 to 7 and 9. The report and plans submitted by the Advocate Commissioner disclose that a house is situated in the parcel of land jointly allotted to the share of the plaintiff, defendants 1 to 3, 5 to 7 and 9 and that it was taking into account the valuation of the house in the land allotted to the plaintiff, defendants 1 to 3, 5 to 7 and 9; that they were held liable to pay Rs.10,329/- to the appellant as owelty. The report and plans also disclose that there is adequate space available in plot 'B' in Exhibit C4 plan wherein the appellant can conveniently build a house. Going by the materials on record, it cannot be said that the division and allotment made by the Commissioner and accepted by the court below is unjust or inequitable. The land allotted to the share of the appellant has an area of approximately 7 cents. It cannot be said that a building cannot be conveniently put up therein. As noticed earlier, the land allotted to the appellant also has adequate road frontage. In A.S.No.277 of 2003 -: 5 :- fact, the road runs along the entire southern boundary of the land allotted to the appellant. I accordingly hold that no grounds have been made out warranting interference with the final decree passed by the court below. In the result, the appeal fails and is accordingly dismissed. No costs. P.N.RAVINDRAN, Judge. skr