IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 RSA.No. 989 of 2008(A) ---------------------- AS.75/2007 of ADDITIONAL DISTRICT COURT (ADHOC)-II, KOLLAM OS.39/1971 of ADDL.SUB COURT,KOLLAM .................... APPELLANT/APPELLANT/DEFENDANT NO.16 ------------------------------------------------------- MOHAMMED ALI JALALUDEEN, ELAPPAZHIKOM, ALSO KNOWN AS KRISHNAZHIKOM, THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILLAGE, PARAVOOR, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENT(S): RESPONDENTS/RESPONDENTS ---------------------------------------------------------------------------------- 1. MOHAMMED ABDUL KHADER THAMLEEHA, PADINJARE MULLIAZHIKOM, THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILLAGE, PARAVOOR, KOLLAM. 2. MOHAMMED ABDUL KHADER MOHAMMED MOOSA, KALLAM VEEDU, THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILLAGE, PARAVOOR, KOLLAM. 3. MOHAMMED ABDUL KHADER JALALUDEEN, KALLAM VEEDU, THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILLAGE, PARAVOOR, KOLLAM. 4. MOHAMMED ABDUL KHADER KAMALUDEEN, KOLLAM VEEDU, THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILLAGE, PARAVOOR, KOLLAM. 2 5. UMMER UMMAL EREEM, KALLAM VEEDU, THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILLAGE, PARAVOOR, KOLLAM. 6. MOHAMMED ABDUL KHADER KAMALUDEEN, KALLAM VEEDU, THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILLAGE, PARAVOOR, KOLLAM. 7. MOHAMMED IBRAHIM AAMINA, RESIDING AT KAVINTETHEKKATHIL VEEDU, THEKKUMBHAGOM, PARAVOOR.P;.O, KOLLAM. 8. MOHAMMED ABDUL KHADER SULEKHA, AGED 60, PADINJARE MULLIAZHIKOM, THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILLAGE, PARAVOOR, KOLLAM. 9. MOHAMMED HANEEFA ABUTHALIB, ANEEYAZHIJKATHU VEEDU, THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILALGE, PARAVOOR, KOLLAM. 10. SAFARULLAKHAN, S/O.LATE RAFEEKA BEEVI, KRISHNAZHIKATHU VEEDU ALSO CALLED ELAPPAZHIKOM, THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILLGE,PARAVOOR, KOLLAM. 11. FAZIL HUK, S/O.KASSIM, MUKKUL PUTHEN VEEDU, SITHARA JUNCTION, KOTTIYAM. 12. VAHAB, S/O.KASSIM, MUKKIL PUTHEN VEEDU, SITHARA JUNCTION, KOTTIYAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BEENA BEEVI. 13. JAHANGEER, S/O.KASSIM, MUKKIL PUTHEN VEEDU, SITHARA JUNCTION, KOTTIYAM. 14. BEENA BEEVI, D/O.UMMATHAMEEN, MUKKIL PUTHEN VEEDU,SITHARA JUNCTION, KOTTIYAM. 15. SAINALBDEEN, S/O.SULAIMANKUNJU, KADAPPA VADAKKETHIL HOUSE, PERINAD.P.O, THRIKKADAVOOR VILLAGE, KOLLAM. 16. SHIHABUDEEN, S/O.SULAIMANKUNJU, KADAPPA VADAKKETHIL HOUSE, PERINAD.P.O, THRIKKADAVOOR VILLAGE, KOLLAM. 3 17. NOUSHAD, S/O.SULAIMANKUNJU, KADAPPA VADAKKETHIL HOUSE, PERINAD.P.O, THRIKKADAVOOR VILLAGE, KOLLAM. 18. BABY SAINALBDEEN, S/O.SULAIMANKUNJU, KADAPPA VADAKKETHIL HOUSE, PERINAD.P.O, THRIKKADAVOOR VILLAGE, KOLLAM. 19. NAZEERKHAN, S/O.SULAIMANKUNJU, KADAPPA VADAKKETHIL HOUSE, PERINAD.P.O, THRIKKADAVOOR VILLAGE, KOLLAM. 20. ANZARKHAN, S/O.SULAIMANKUNJU, KADAPPA VADAKKETHIL HOUSE, PERINAD.P.O, THRIKKADAVOOR VILLAGE, KOLLAM. 21. LEEBA BEEGOM, D/O.SHEREEFA BEEVI, KADAPPA VADAKKETHIL HOUSE, PERINAD.P.O, THRIKKADAVOOR VILLAGE, KOLLAM. 22. NAVAB, S/O.SULAIMANKNJU, KADAPPA VADAKKETHIL HOUSE, PERINAD.P.O, THRIKKADAVOOR VILLAGE, KOLLAM. 23. SAHIRKHAN, S/O.ALEFA BEEVI,PUTHEYAM VEEDU,THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILLAGE, PARAVOOR, KOLLAM. 24. THAHIRA BEEVI, D/O.ARIFFA BEEVI, PUTHEYAN VEEDU, THEKKUMBHAGOM CHERRY, KOTTAPPURAM VILLAGE, PARAVOOR, KOLLAM. 25. AMINATHU BEEVI, W/OLATE HUSSAIN, 26. RUBINISSA, MANGOLATHU BUNGLOW, MURUTHAL. B.WARD, THRIKKADAVOOR VILLAGE, PERINAD.P.O, KOLLAM TALUK. 27. ANARKHAM, S/O.DECEASED HUSSAIN, MANGOLATHU BUNGLOW, MURUTHAL B.WARD, THRIKKADAVOOR VILLAGE, PERINAD.P.O, KOLLAM TALUK. 28. SHAMINA, D/O.DECEASED HUSSAIN, MEENATHIL PARIMANAMMUKKU, NEENDAKARA, CHAVARA, KOLLAM. 4 29. MOHAMMED SHAHUL HAMEED, S/O.LATE SAFARULLAKHAN, KARUKKANI, MOHAMMED MUKIL PUTHEN VEEDU. 30. NAJEEM, D/O.LATE SAFARULLAKHAN, KARUKKANI, MOHAMMED MUKIL PUTHEN VEEDU. 31. RAMEELA, D/O.LATE SAFARULLAKHAN, KARUKKANI, MOHAMMED MUKIL PUTHEN VEEDU. 32. NOORJAHAN, D/O.LATE SAFARULLAKHAN, KARUKKANI, MOHAMMED MUKIL PUTHEN VEEDU. 33. SHAKKEELA, D/O.LATE SAFARULLAKHAN, KARUKKANI, MOHAMMED MUKIL PUTHEN VEEDU. 34. RAFEESA, D/O.LATE SAFARULLAKHAN, KARUKKANI, MOHAMMED MUKIL PUTHEN VEEDU. 35. NAFEESA BEEVI, D/O.UMMACHI UMMAL PATHUMMAL, SAFIYA MANZIL, POOTHATTUVILA, NEERAVIL, PERINADU. 36. SAFIYA BEEVI, D/O.UMMACHI UMMAL PATHUMMAL, SAFIYA MANZIL, POOTHATTUVILA, NEERAVIL, PERINADU. 37. RUBY, W/O.ABDUL RASHEED, KADAPPA VADAKKATHIL HOUSE, PERINAD.P.O, THRIKKADAVOOR. 38. RIHAL, KADAPPA VADAKKATHIL HOUSE, PERINAD.P.O, THRIKKADAVOOR. 39. RIFANA, D/O.RUBY, KADAPPA VADAKKATHIL HOUSE, PERINAD.P.O, THRIKKADAVOOR. ADV. SRI.E.K.NANDAKUMAR(CAVEATOR) SRI.A.K.JAYASANKAR NAMBIAR(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.989 of 2008 = = = = = = = = = = = = = = Dated this the 24 th day of October, 2008 JUDGMENT The 16th defendant in O.S.No.39/71 on the file of the Additional Sub Court, Kollam is the appellant in this second appeal. The said suit was one for partition of several items of immovable properties. 2. The properties belonged to 3 brothers, Abdul Khader, Shahul Hameed and Mohammed Ibrahim all of whom are not alive now. Initially, the legal representatives of Shahul Hameed filed a suit for partition as O.S.No.6/1956 before the Sub Court, Kollam seeking partition and separate possession of their 1/3rd right over the properties. That suit resulted in a preliminary decree for partition in respect of the properties described as plaint E and F schedules and they got delivery of their 1/3rd share. Thereafter the present suit was filed in the year 1976 by the 5 legal representatives of the other brother Abdul Khader against Mohammed Ibrahim and the remaining legal heirs of Abdul Khader, for partition and separate possession of their 5/16 R.S.ANo.989 of 2008 2 shares over the 1/3rd right of Abdul Khader. Defendants 2 to 7 in the present suit are the 1st wife and children of Abdul Khader. 16th defendant who is the appellant herein is one of the legal heirs of the 8th defendant who is an assignee from defendants 2 to 7. The trial court passed a preliminary declaring that the plaintiffs are entitled to 5/16 of the 1/3rd right of Abdul Khader. The said preliminary decree has become final. Thereafter the 4th plaintiff who got assignment of the undivided rights of the remaining plaintiffs filed the final decree application as I.A.No.1439 of 1998 for the passing of a final decree. The appellant who is one of the legal representatives of deceased 8th defendant had filed objections to the report and account of the Advocate Commissioner raising, inter alia, the following grounds:- 1. Eventhough Item No.2 of the plaint A schedule admeasuring 18.33 cents is available for partition as per the preliminary decree, the Advocate Commissioner deputed by the final decree court excluded a kudikidappu situated in the property and reported that what was available for partition is only 9.91 cents out of which, eventhough the final decree applicant is entitled to R.S.ANo.989 of 2008 3 only 1.45 cents , he has been actually alloted 2.83 cents. 2. The Commissioner had treated Items 8 to 11 of the plaint A schedule as a single plot and had allotted the best part of that area comprising of 22 cents to the plaintiff. 3. The 4th plaintiff, final decree applicant had obtained an assignment of only the undivided right over the property from the other plaintiffs who had not assigned the decree for mesne profits. 4. 25 cents of the western portion of the plaint A schedule item No.5 was in the possession of his father Mohammed Ali who is not a party to the present suit. The said Mohammed Ali was holding the said 25 cents on the strength of Ottikuzhikanam of the year 1110 ME and the said 25 cents was not partiable. The very same contention had been raised by his father Mohammed Ali in O.S.No.6/1956 and the same was upheld by the Executing Court as per Ext.B3 order. 3. With regard to the contention based on the non- availability of 25 cents of item No.5 of the plaint A Schedule on the strength of the otti kuzhikanam relied on by the appellants, R.S.ANo.989 of 2008 4 the lower appellate court has observed that when the whole property is shown as available for partition in the plaint, the appellant ought to have raised his objections before the trial court before the passing of the preliminary decree. When the preliminary decree has shown the whole item available for partition it is no more open to the appellant to contend that the whole of item 5 is not available for partition. I see no reason to disagree with the aforesaid reasoning of the lower appellate court in view of Section 97 C.P.C. When the preliminary decree was passed, the above contention regarding the non availablility of item No.5 of plaint A Schedule for partition was neither raised nor upheld. Hence, it is not open to the appellant to raise the very same point in the Final decree proceedings. 4. Hence, with regard to the rest of the objections, the judgments of both the courts below are silent . When the judgment is silent about a point having been urged before it, it should be presumed that the said point was not urged before that court. The presumption in law is that the said point was abandoned and should be treated as rejected. If on the other hand, the party has a contention that the said point was very R.S.ANo.989 of 2008 5 much urged but the court failed to consider the same, the remedy of the party is not appeal but a review of that order. I do not find any good ground to entertain the objections now raised for the first time before the second appellate court. No questions of law, much less any substantial question of law arises for consideration in this second appeal. The substantial questions of law formulated in the memorandum of appeal do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 24 th day of October, 2008. V. RAMKUMAR, JUDGE sj