IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 RSA.No. 1341 of 2010() ---------------------- AS.101/2003 of DISTRICT COURT, PATHANAMTHITTA OS.122/1998 of MUNSIFF COURT, RANNI (IA 1377/1998) .................... APPELLANT/APPELLANT/LR OF 2ND DEFENDANT ----------------------------------------------------------- T.M.JACOB, S/O T.C.MATHEW, THERVARTHOTTATHIL HOUSE, KUMARAMPEROOR THEKKEKARA MURI, VADASSERIKKARA VILLAGE. BY ADV. SRI.P.R.VENKETESH SRI.R.AZAD BABU SRI.P.R.RAJA RESPONDENT(S): RESPONDENTS/PLAINTIFFS AND OTHER DEFENDANTS ---------------------------------------------------------- 1. T.C.JACOB, S/O CHACKO, BENEDICT NAGAR, NO.U.P./863, MALANCHIRA, THIRUVANANTHAPURAM. 695001. 2. SARAMMA GEORGE, THEVARTHOTTATHIL ESTATE, RANNY PERUNADU MURI, R-PERUNADU VILLAGE 699645. 3. ALEYAMMA SAMUEL, MANIRNANNIRATHU HOUSE, KOONAMKUZHI, PUNALUR 691305. 4. MARIAMMA GEORGE, CHAKKALAYIL VEEDU 691305. 5. T.G.SAMUEL, DEVASWOM LANE, OPPOSITE MALAYIL HOUSE, KESAVADASAPURAM, THIRUVANANTHAPURAM. 695001. 6. ALICE ASOKAN, PATHALIL VEEDU, EDAPPAVOOR P.O., KOTTATHOOR, VIA RANNY TALUK, FROM THEVARTHOTTATHIL HOUSE, KUMARAMPEROOR, THEKKEKKARA MURI, VADASSERIKKARA VILLAGE 689662. RSA.No. 1341 of 2010() 2 7. T.M.ASOKAN, S/O T.C.MATHEW, THEVARTHOTTATHIL HOUSE, KUMARAMPEROOR, THEKKEKKARA MURI, VADASSERIKKARA VILLAGE 689662. 8. THOMAS MATHEW, T.C.MATHEW, THEVERTHOTTATHIL HOUSE, KUMARAMPEROOR, THEKKEKARA MURI, VADASSERIKKARA VILLAGE. 9. MARIYAKUTTY MATHEW, W/O MATHEW, THEVARTHOTTATHIL HOUSE, KUMARAMPEROOR, THEKKEKKARA MURI, VADASSERIKKARA VILLAGE 689662. 10. P.S.SAMUEL, MANIMANDIRAM HOUSE, KOONAMKUZHY, PUNALUR P.O., 691305. 11. SAJI SAM, -DO- -DO-. 691305. 12. DARLI SAM, -DO- -DO- 691305. 13. GIJI ALEX, C/O T.M.ALEXANDER, 202/RADHA APARTMENT, NEAR I.OC. PUMP, AHAMMEDABAD-15. 14. MATHEW GEORGE @ PONNACHAN, CHARUVILA PUTHENVEETTIL, PUTHUTHADAM JUNCTION, KARAVALOOR P.O. 15. SAJI MON GEORGE, CHARUVILA PUTHENVEEDU, PUTHUTHADAM JUNCTION, KARAVALOOR P.O., 691318. 16. SAM MON @ MONI, CHARUVILA PUTHENVEEDU, PUTHUTHADAM JUNCTION, KARAVALOOR P.O., 691318. 17. MARYKUTTY GEORGE, -DO- -DO- 18. SHERLY GEORGE, -DO- -DO- 19. GIJIKUTTY GEORGE, -DO- -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1341 OF 2010 -------------------------------- Dated this the 17th day of December 2010 JUDGMENT Challenge in this appeal is against the concurrent decision rendered by the two courts below in a suit for partition by which the properties involved were partitioned and separate possession in accordance with the shares was determined under the final decree and judgment. The second defendant has preferred this appeal. Suit property involved has an extent of two acres and 9.5 cents, which was described as a single plot. However, during the final decree proceedings when the advocate commissioner conducted local inspection and measured out the property with the assistance of a qualified surveyor, it was found to be lying as two separate plots with some properties of others in between. The predecessor of the present appellants and also raised some other defendants challenged the identification of the suit property and also raised some other objections as well over the determination of the value of trees and building assessed and owelty fixed for regularising the allotment made to the sharers. In the final decree proceedings, the second defendant was examined as DW1 and the advocate commissioner who prepared R.S.A No.1341 OF 2010 - 2 - the report and plan as DW2. After meticulously considering the materials tendered, the trial court, negativing the objections raised by the contesting defendants, passed a final decree directing that Ext.C4 plan prepared by the advocate commissioner shall form part of that decree. Challenge raised against that decree by the second defendant by preferring an appeal was turned down by the lower appellate court, which concurred with the conclusion drawn by the trial court. Feeling aggrieved, the second defendant has filed this appeal. 2. I heard the learned counsel for the appellant. Learned counsel fairly submitted that at the time the appeal was preferred, delivery in accordance with the final decree passed in the suit had already been effected. In fact, delivery had been effected on 19/12/2006 even before the disposal of the appeal by the lower appellate court confirming the decree of the trial court. Whatever that be, if there is some merit in the challenges canvassed by the appellant to impeach the final decree passed in the case, delivery had taken place may not be of much significance as he would be entitled to restitution under Section 144 of the Code of Civil Procedure. However, after going through the judgment rendered by the two courts, I find that the objections raised by the appellant R.S.A No.1341 OF 2010 - 3 - to resist the report and plan prepared by the advocate commissioner were rightly and correctly turned down. Within the boundaries of the property shown in the suit, as described in the plaint, on determination and measurement, it was found, the property was lying in two plots. Suit was one for partition and all parties to the suit are bound to assist the commissioner to identify the property involved. Merely because the property was described as a single plot and on identification measurement it was found to be lying as two plots, that alone, would not in any way show that the preliminary decree passed in the case is rendered nugatory and no further steps for passing of final decree can be proceeded with. So far as the other objections raised with respect to the valuation made, it is seen, when the second defendant was examined as DW1, he did not press into service such objections at all. His only challenge was confined to determining of the suit property as two plots when it had been described in the suit as a single plot. The learned Munsiff has carefully considered that objection with reference to the description of the boundaries of the suit property and concluded that the property found in two plots has got only innocuous value in the case. The lower appellate court, which is the last fact finding authority, after reappreciating R.S.A No.1341 OF 2010 - 4 - the materials, found no reason to disturb the conclusion drawn by the trial court. When such be the case, I find, no interference with the concurrent decision rendered by the two courts below is called for especially where there is no apparent infirmity leave alone any illegality noticed in the judgments rendered by the courts below. Appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv