IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 RFA.No. 727 of 2008() --------------------- AGAINST THE ORDER DATED 27/06/2008 IN FDIA 55/2007 IN OS.19/1984 of SUB COURT, QUILANDY .................... APPELLANT/2ND RESPONDENT IN FDIA IN OS ---------------------------------------------------------- ELAMBILASSERY KUNHIKANARAN,S/O.UNNEERA, AGED 63 YEARS, AGRICULTURIST, RESIDING AT PONATHIKANDI THAZHEKUNI, VELAM AMSOM, KURICHAKAM DESOM, KOYILANDY TALUK. BY ADVS. SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA RESPONDENT(S): RESPONDENTS/PETITIONERS IN FDIA IN OS ---------------------------------------------------- 1. SOOLANKANDIYIL KALLIANI, D/O.KANNAN, AGED 74 YEARS, HOUSEWIFE,RESIDING AT PUTHANPURAYIL KUTTIADI AMSOM, OORATH DESOM. 2. SOOLANKANDIYIL AMMALU, D/O. KANNAN, AGED 63 YEARS, HOUSEWIFE, RESIDING AT KARUVERATTU HOUSE, MANTHARATHOOR AMSOM, DESOM, VELAM. 3. SOOLANKANDIYIL NANU, S/O. KANNAN, AGED 60 YEARS, AGRICULTURIST, RESIDING AT PUTHANPURAYIL, VELAM AMSOM, CHERUKUNNU DESOM. 4. SOOLANKANDIYIL SANKARAN, S/O. KANNAN, AGED 59 YEARS, AGRICULTURIST, VELAM AMSOM, CHERUKUNNU DESOM. 5. KIZHAKKE MAYINGALATHIL BABY, S/O.BALAN, AGED 48 YEARS, HOUSEWIFE, MANTHARATHOOR AMSOM, DESOM. 6. JANAKI, D/O.KUNHIRAMAN, AGED 52 YEARS, HOUSEWIFE, RESIDING AT MADHANATH, VELAM AMSOM, CHERUKUNNU DESOM, P.O. VELAM, VIA. KOOTHALI. 7. AJITHAN, S/O.KUNHIRAMAN, AGED 32 YEARS, HOUSEWIFE, RESIDING AT MADHANATH, VELAM AMSOM, CHERUKUNNU DESOM, P.O. VELAM, VIA. KOOTHALI. 8. ANIL, S/O. KUNHIRAMAN, AGED 29 YEARS, HOUSEWIFE, RESIDING AT MADHANATH, VELAM AMSOM, CHERUKUNNU DESOM, P.O. VELAM, VIA. KOOTHALI. 9. SUNIL, D/O.KUNHIRAMAN, AGED 29 YEARS, HOUSEWIFE, RESIDING AT MADHANATH, VELAM AMSOM, CHERUKUNNU DESOM, P.O. VELAM, VIA. KOOTHALI. 10. BABU, D/O. CHIRUTHA, AGED 20 YEARS, HOUSEWIFE, RESIDING AT MADHANATH, VELAM AMSOM, CHERUKUNNU DESOM, P.O. VELAM, VIA. KOOTHALI. 11. PRASANNA, D/O. CHIRUTHA, AGED NOT KNOWN, RESIDING AT MADHANATH, VELAM AMSOM, CHERUKUNNU DESOM, P.O. VELAM, VIA. KOOTHALI. 12. SASI, D/O. CHIRUTHA, AGED NOT KNOWN, RESIDING AT MADHANATH, VELAM AMSOM, CHERUKUNNU DESOM, P.O. VELAM, VIA. KOOTHALI. 13. LATHA, D/O. CHIRUTHA, AGED NOT KNOWN, RESIDING AT MADHANATH, VELAM AMSOM, CHERUKUNNU DESOM, P.O. VELAM, VIA. KOOTHALI. ADVS. SRI.A.BALAGOPALAN FOR R7 & 10 SRI.K.SANEESH KUMAR FOR R7 & 10 SRI.A.BALAGOPALAN FOR R1 TO 6,8,9,11 SRI.K.SANEESH KUMAR FOR R1 TO 6,8,9,11 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.F.A 727/2008 ORDER ON I.A. 4606/2008 IN R.F.A NO. 727/2008 DISMISSED. SD/- M.N. KRISHNAN, JUDGE 21.01.2008 //TRUE COPY// P.A. TO JUDGE. M.N. KRISHNAN, J ----------------------- R.F.A.No. 727 OF 2008 --------------------------------- Dated this the 21st day of January, 2009 JUDGMENT This is an appeal preferred against the final decree passed in F.D.I.A. 55/2007 in O.S. 19/84. The suit is one for partition and the plaintiffs are entitled to half share and defendants 1 to 6 are entitled to remaining half. The final decree has been passed and the dispute is with respect to the calculation of the mesne profits. 2. Heard the learned counsel for the appellant as well as the respondents. It is the contention of the learned counsel for the appellant that way back in 1990 when an application for final decree was filed, a Commission was issued. The Commissioner inspected the property and produced Exts. B3 and B4 report and account. The said final decree application was closed and the present final decree application is filed as F.D.I.A. 55/2007. The Commissioner inspected the properties, divided it by metes and bounds and reported that the plaintiffs are entitled to mesne profits at the rate of Rs. 6,161/- per annum. The court accepted the same and fixed the mesne profits at Rs. 6,161/- per annum from the date decree i.e. on 9.3.1984 and the share allotted to the defendants 1 to 6 was R.F.A.No. 727/2008 -2- made a charge. 3. The learned counsel would contend before me that it is always fair to accept the Commissioner's report submitted in the earlier proceedings and much water has flown thereafter. The trees have become old and the yield has become less and therefore the acceptance of the present Commissioner's report is not proper. I had perused the previous Commissioner's report Exts. B3 and B4 as well as present Commissioner's plan and report. There are about 150 coconut trees standing in the property. Some trees were middle aged, some were old and some were planted in the process of time. It has been found by the court below in the preliminary decree itself that the defendants 1 to 6 are in possession and they are liable to mesne profits. So they cannot escape from that liability but whether the mesne profits calculated is reasonable is a matter to be looked into. When the previous Commissioner visited the property and submitted Ext. B4 report, he had taken the yield at 4140 coconuts fixed the value of Rs. 2/- for the coconut and had fixed the arecanut income at Rs. 180/- and other income at Rs. 140/-. Deducted 1/3 for the expenses and found the total profits at Rs. 5,734/- and directed to pay 50% of the same to the R.F.A.No. 727/2008 -3- plaintiff. The present Commissioner found that the total yield is at 5360 coconuts but deducted only 25% as expenses and fixed the value of coconut at Rs. 3/- and calculated the mesne profits. The cost of cultivation has gone up. Manure cost has gone up and even the climbing charges of the trees has gone up considerably. I think in the fitness of things which is not proper to reduce it to 25% alone but it must be 1/3rd of the total yield. The Commissioner's report would reveal that the total coconuts would come to 5360 when 1/3rd is deducted from the same it will come to 3570 coconuts. 4. The next question would be price for a coconut. There cannot be any dispute that in the process of last 25 years the price of the commodity has gone up very high. One cannot precisely find out the exact value for the reason, some time the market value will be much higher than gazetted value. Therefore only a reasonable and probable approach is sufficient. The learned counsel would contend the price of the coconut cannot be taken as Rs. 3/- for 1984 as well as for 2008. He is right in that submission. But what has been done is to take into consideration the totality, the price variation and to take an average price which will be fair. The R.F.A.No. 727/2008 -4- court below has fixed at Rs. 3/- per coconut which I feel is proper and that does not call for interference. So total value would come to Rs. 10,710/-. When 50% alone is due to the plaintiff the amount will come to Rs. 5,355/-. Towards the profit from arecanut trees, I fix at Rs. 200/- per annum instead of Rs. 262.50 considering the price difference at the earlier point of time. So it will come to Rs. 100/- towards plaintiff's share and therefore the total would come to Rs. 5,455/- which I round as Rs. 5,450/-. On all other aspects the order of the court below does not call for any interference. Therefore the R.F.A is disposed of with a modification to the final decree that the petitioners in the final decree application are entitled to mesne profits at the rate of Rs. 5,450/- from D1 to D6 from the date of decree i.e. 9.3.1984 and the plots allotted to them shall be a charge for the said amount. With these modifications the R.F.A is disposed of. M.N. KRISHNAN,JUDGE vkm