IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 RSA.No. 514 of 2009() --------------------- AS.34/2007 of SUB COURT, QUILANDY OS.39/2007 of MUNSIFF-MAGISTRATE COURT, PAYYOLI .................... : APPELLANT:APPELLANT/2ND DEFENDANT: ------------------------------------------------------ MALU, DAUGHTER OF KANNAN, AGED 50 YEARS, KUZHIKANDATHIL HOUSE, KARUVANCHERI AMSOM AND DESOM, P.O.PALAYADUNADA, VADAKARA TALUK. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENTS:RESPONDENTS/ PLAINTIFF, 1ST DEFENDANT AND DEFENDANTS 1: -------------------------------------------------------------------------------------------------- 1. KALLYANI, W/O.KUNHIRAMAN, AGED 64 YEARS, TAREPPAMALAYIL HOUSE, KARUVANCHERI AMSOM, CHELLATTUPOYIL DESOM, VADAKARA TALUK, P.O.PALAYADAUNADA, KOZHIKODE. 2. KUNHIRAMAN, S/O.KANNAN, AGED 64 YEARS, KURUNGOTTUTHAZHAKUNI HOUSE, KARUVANCHERI AMSOM, VADAKARA TALUK, P.O.PALAYADUNADA, KOZHIKODE. 3. K.K.VELAYUDHAN, S/O.KANNA, AGED 45 YEARS, TEACHER, KIZHAKKEPARAMBATHU HOUSE, KARUVANCHERI AMSOM, DESOM, VADAKARA TALUK, P.O.PALAYADUNADA, KOZHIKODE. ADV. SRI.ZUBAIR PULIKKOOL FOR R1 TO 3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.514 of 2009 ---------------------------------------- Dated this the 30th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 34/2007 on the file of the Sub Court, Koyilandy which arises from the judgment and decree in O.S. No. 39/2007on the file of the Munsiff- Magistrare Court, Payyoli. The trial court passed a preliminary decree declaring that the Plaintiff, 1st defendant and 3rd defendant are entitled to ¼ th share each in respect of the plaint schedule property and they are entitled for separate possession . The trial court also held that the issue regarding equity and reservation shall be considered at the time of passing of the final decree. In the first appeal preferred by the 2nd defendant the decree and judgment passed by the trial court was confirmed by the lower appellate court. Hence the second appeal. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. It is the case of the plaintiff that originally the plaint schedule property belongs to her father Kannan. The defendants are her brothers and sister. On the death of their father the property devolved upon the plaintiff and the defendants. The defendants also admitted that the plaintiff's right over the property and that each of the sharers are entitled R.S.A. No. 514 of 2009 -2- for ¼ th share over the property. The defendants 1 and 3 paid separate court fee for their separate share. The trial court concluded that the plaint schedule property is partiable and that the plaintiff and defendants 1 and 3 are entitled to ¼ th share each over the property. 3. The 1st defendant contended that he is residing in the house situated in the plaint schedule property and he had renovated the said house by utilisiing his own funds and that he does not have any other place of residence. On the basis of the said contentions the trial court deputed a commissioner to effect division 4. In the first appeal also no party has raised any dispute with regard to the shares. The contentions raised by the 2nd defendant before the lower appellate court is that the measurement of the property shown in the plaint is incorrect and that his father Kannan has got more property than what is shown in Ext.A1 document. It is clear in law that after declaring the shares of the parties and the identity of the property to be partitioned in a preliminary decree , a civil court appoints a Commissioner in the final decree stage to suggest the mode of partition as per Order 26 Rule 13 of the C.P.C. The lower appellate court held that the trial not went wrong in holding that the issue regarding equity and reservation shall be considered at the time of passing the final decree especially in the R.S.A. No. 514 of 2009 -3- circumstance,where the 2nd defendant has not disputed the identity of the plaint schedule property. 5. So in the above circumstances the 2nd defendant's contentions as above will not lie and no other contentions are remains to be answered in the Second Appeal. I am of the firm view that the view taken by the lower appellate court that the questions raised by the 2nd defendant are not germane for consideration before the passing of the final decree by the trial court is a valid one. The lower appellate court rightly held that the trial court's findings cannot be interfered with. I think that the courts below are justified in entering such findings in the given circumstances. No questions of law much less any substantial question of law arises for consideration in this appeal. No grounds are made out to invoke this Court's jurisdiction under Section 100 of the C.P.C. in this appeal. This appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 514 of 2009 ---------------------------- JUDGMENT 30th July , 2009