IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 RSA.No. 68 of 2009 ------------------------------- AS.52/2006 of ADL.SUB COURT, THALASSERY FDIA.1087/2004 IN OS.218/2002 of MUNSIFF COURT, THALASSERY .................... APPELLANTS/APPELLANTS/DEFENDANTS: 1. P.KAMALA, D/O.NARAYANI, MANIKOTH HOUSE, TEMPLE GATE, THALASSERY, 2. P.SURESH, S/O.NARAYANI, CHANDRAKANTHAM, CHONADAM, ERANHOLI, THALASSERY. 3. P.GANGADHARAN, S/O.NARAYANI, KOROTH HOUSE, TEMPLE GATE, THALASSERY. BY ADV. SRI.M.SASINDRAN RESPONDENT/RESPONDENT/PETITIONER(LR): K.YESHODA, W/O.GOPALAN, KOLATHIL HOUSE, AZHIYOOR AMSOM DESOM, VADAKARA, KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.68 of 2009 -------------------------- JUDGMENT Appellants are the defendants in a partition suit filed by the original plaintiff, whose legal representative is the respondent. The appeal is filed assailing the final decree passed by the trial court, which was confirmed in appeal by the first appellate court. 2. As per the final decree, the entire plaint schedule property, including the house therein and other usufructs, together measuring 8¾ cents shown in Exhibit C2 plan, corresponding to Share No.1 in Exhibit C3(B) share list, stands allotted to the one half share of the appellants/defendants and the respondent was held entitled to get an amount of Rs.1,02,646.50 from the appellants as owelty to be paid within a period of two months for equalisation of shares. The owelty so payable is made a charge also on the property allotted to the share of the appellants. RSA 68/09 2 3. It is the contention of the counsel for the appellants, assailing the concurrent decrees passed by the courts below, that the value of land fixed by the courts below towards the share of the respondent on the basis of the valuation of land at Rs.15,000/- per cent is highly excessive and that the property will be worth only half of that value and therefore, the owelty ordered to be paid to the respondent in lieu of her share is highly excessive and exorbitant. 4. It is a case, where owelty is ordered to be paid to the respondent in lieu of her share in the scheduled property of 8¾ cents with a building therein, as it was found not feasible to effect division of the property by metes and bounds. Counsel for the appellants was asked whether the appellants would be prepared to share the property by metes and bounds and allow one half to be taken by the respondent, to which, he submitted that the appellants will not be amenable. Next he was asked as to whether the appellants would be prepared to RSA 68/09 3 accept the entire owelty amount ordered to be paid by them to the respondent and to give the scheduled property with the building therein to the share of the respondent, to which also, he submitted that his party is not amenable. He also submitted that when a similar question was asked by the court below, their counsel agreed for that and the appellants consequently got the vakkalath changed from that Lawyer and gave engagement to another Lawyer to contest the matter. In the circumstances, there is absolutely no merit in preferring this Regular Second Appeal. 5. It is submitted by counsel for the appellants that the appellants are in exclusive possession and occupation of the scheduled property and the building despite the final decree passed as early as on 13.1.2006 directing the appellants to make payment of Rs.1,02,646.50 as owelty to the respondent within a period of two months therefrom. Not a pie is deposited yet and the appellants are continuing in occupation of the building and the RSA 68/09 4 entire scheduled property without paying the due share to the respondent preferring appeals and second appeals when actually they themselves are aware that the valuation made by the Commissioner is not excessive. Even the amount, which according to the appellants would be reasonable and payable by way of owelty, has not been deposited at least to show their bona fides. Not only that, there is no substantial question of law arising for consideration in this Regular Second Appeal. This Regular Second Appeal is ill-conceived and is intended to cling on to possession of the scheduled property to the exclusion of the respondent, who is also entitled to half share in the scheduled property without making any payment to her. This Regular Second Appeal, in the circumstances, is dismissed being devoid of any merit and any substantial question of law arises for consideration. 10th February, 2009 (K.P.Balachandran, Judge) tkv