IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 RSA.No. 191 of 2010() --------------------- AS.69/2008 of SUB COURT, HOSDRUG OS.421/1999 of MUNSIFF COURT, HOSDRUG (IA.2348/2007) .................... APPELLANTS/ APPELLANTS/DEFENDANTS ----------------------------------------- 1. MADHAVI.P., AGED 65 YEARS, D/O.LATE P.CHIRUTHA, R/AT MADHURAKKOT, THEEYARPALAM, AMBALATHARA VILLAGE, HOSDURG TALUK, P.O.ACHIKANAM, KASARAGOD DISTRICT. 2. KUMARAN.P., AGED 60 YEARS, S/O.LATE P.CHIRUTHA, R/AT PALLOT IN AJANUR VILLAGE, HOSDURG TALUK, P.O.AJANUR, KASARAGOD DISTRICT. 3. BALAN.P., AGED 57 YEARS, S/O.LATE P.CHIRUTHA, R/AT PALLOT IN AJANUR VILLAGE, HOSDURG TALUK, P.O.AJANUR, KASARAGOD DISTRICT. 4. NARAYANI.P., AGED 52 YEARS, D/O.LATE P.CHIRUTHA, R/AT PALLOT IN AJANUR VILLAGE, HOSDURG TALUK, P.O.AJANUR, KASARAGOD DISTRICT. BY ADV. SRI.K.P.HARISH,SC,KERALA KHADI BOARD RESPONDENTS/RESPONDENTS/PLAINTIFFS ------------------------- 1. K.V.MEENAKSHI, AGED 62 YEARS, W/O.LATE KUNHAMBU, R/AT KALARIYIL HOUSE, THEEYARPALAM, AMBALATHARA VILLAGE, HOSDURG TALUK, P.O.ACHIKANAM, KASARAGOD DISTRICT. 2. K.PREETHI, AGED 37 YEARS, D/O.K.V.MEENAKSHI & LATE KUNHAMBU, R/AT KALARIYIL HOUSE, THEEYARPALAM, AMBALATHARA VILLAGE, HOSDURG TALUK, P.O.ACHIKANAM, KASARAGOD DISTRICT. 3. UDAYAKUMAR, AGED 34 YEARS, S/O.K.V.MEENAKSHI & LATE KUNHAMBU, R/AT KALARIYIL HOUSE, THEEYARPALAM, AMBALATHARA VILLAGE, HOSDURG TALUK, P.O.ACHIKANAM, KASARAGOD DISTRICT. 4. K.SANDHYA, AGED 30 YEARS, D/O.K.V.MEENAKSHI & LATE KUNHAMBU, R/AT KALARIYIL HOUSE, THEEYARPALAM, AMBALATHARA VILLAGE, HOSDURG TALUK, P.O.ACHIKANAM, KASARAGOD DISTRICT. 5. P.JANAKI, AGED 53 YEARS, D/O.PULUKOOL RAMAN NALPADI, R/AT PULUKOOL HOUSE, THEEYARPALAM, AMBALATHARA VILLAGE, HOSDURG TALUK, P.O.ACHIKANAM, KASARAGOD DISTRICT. 6. P.NISHANTH, AGED 22 YEARS, D/O.P.JANAKI & KUNHAMBU, R/AT PULUKOOL HOUSE, THEEYARPALAM, AMBALATHARA VILLAGE, HOSDURG TALUK, P.O.ACHIKANAM, KASARAGOD DISTRICT. 7. P.NISHA, AGED 22 YEARS, D/O.P.JANAKI & KUNHAMBU, R/AT PULUKOOL HOUSE, THEEYARPALAM, AMBALATHARA VILLAGE, HOSDURG TALUK, P.O.ACHIKANAM, KASARAGOD DISTRICT. 8. P.KUNHIMANIKKAM, AGED 62 YEARS, WIDOW OF P.KRISHNAN, R/AT PERIYANKOT IN AMBALATHARA VILLAGE, HOSDURG TALUK, P.O.ACHIKANAM, KASARAGOD DISTRICT. 9. KAIRALI.P., AGED 37 YEARS, D/O.LATE P.KRISHNAN, R/AT PERIYANKOT IN AMBALATHARA VILLAGE, HOSDURG TALUK, P.O.ACHIKANAM, KASARAGOD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.191 of 2010 --------------------------------------- Dated this 18th day of February, 2010 JUDGMENT This appeal arises from judgment and decree of learned Sub Judge, Hosdurg in A.S.No.69 of 2008 confirming the final decree passed by learned Munsiff, Hosdurg as per order on I.A.No.2348 of 2007 in O.S.No.421 of 1999. As per the preliminary decree property was directed to be divided into six equal shares to be alloted to plaintiff Nos.2 to 4 and defendant Nos.1 to 5. It was directed in the preliminary decree that the house constructed by defendant No.4 is to be alloted to his share without valuation and that defendant Nos. 1 to 5 will be liable for payment of future mesne profits. Plaintiff Nos. 2 to 4 applied for passing final decree. The Advocate Commissioner submitted report and plan. It is submitted by learned counsel that appellants/defendant Nos. 2 to 4 preferred objection to the report and plan. Trial court allowed I.A.No.2348 of 2007 and passed a final decree. First appellate court confirmed that. Hence the second appeal. It is contended by learned counsel that the final decree is not in tune with the preliminary decree in that preliminary decree directed division of property into six equal shares while division made by the Advocate Commissioner is not in that line. It is also contended that three items are kept without partition and that the plot allotted to R.S.A.No.191 of 2010 2 respondent No.5 (plot No.480/4F) is more advantageous as it has road frontage on two sides. According to the learned counsel valuation of the property is also not correct. Objection preferred by appellants/defendant Nos.1 to 4 as to the report and plan were not considered by the courts below. 2. As per the report and plan submitted by the Advocate Commissioner, plot No.480/4H which is 1.38 cents was found to be in the possession of a third party. Plot No.480/4J – 2.550 cents was found to be part of a natural stream running along the northern extremity of the property available for partition. Hence those items were not partitioned. Plot No.480/4I is the common pathway provided for access to the various plots. I do not find anything illegal in the said three items being not divided. When preliminary decree directed division of property into six equal shares it only meant division of property which is available for partition (which is required to be decided in the final decree). 3. So far as difference in the extent and valuation of plots is concerned, there is the possibility of some difference and that is why provision is made for payment of owelty for equalisation. Though appellants/defendant Nos.1 to 4 are said to have preferred objection to the report and plan submitted by the Advocate Commissioner, nothing was done to substantiate the objection if any. Appellants did not R.S.A.No.191 of 2010 3 adduce any evidence to substantiate their objection. First appellate court has gone through the contention raised by the appellants and held that there was no formidable objection raised by the appellants as to the acceptability of the report and plan. I do not find any substantial question of law involved in the matter requiring decision. Accordingly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/