IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 RFA.No. 369 of 2009() --------------------- AGAINST THE ORDER DATED 19/12/2008 IN IA 738/2004 IN OS.338/1993 of SUB COURT,KATTAPPANA .................... APPELLANTS/DEFENDANTS/ADDL. RESPONDENTS 2 TO 4: ---------------------------------------------------------------- 1. MURALEEDHARAN, BIJU BHAVAN, BLOCK NO.403, THOOKKUPLAM KARA, KALLAR POST, KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK. 2. BIJIMOL.M., BLOCK NO.406, THAMARAN HOUSE, .DO. .DO. 3. BIJUMON BLOCK NO.403, BIJU BHAVAN, THOOKKUPLAM KARA, .DO. .DO. BY MR.MATHEW JOHN (K), ADVOCATE MR.AJEESH K.SASI, ADVOCATE RESPONDENT/PLAINTIFF/PETITIONER: ------------------------------------------ VALSALA, W/O. SOMAN RESIDING AT BLOCK NO.413, PUTHENPURACKAL HOUSE, THOOKUPALAM KARA, KALLAR POST, KARUNAPURAM VILLAGE UDUMBANCHOLA TALUK. BY MR.MILLU DANDAPANI, ADVOCATE FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ========================= R.F.A.No.369 of 2009 ========================= Dated this the 15th day of December, 2009 JUDGMENT The matter arises in final decree proceedings. The appeal is preferred by legal heirs of the original defendant against the order passed in I.A.738/2004 on the file of the Principal Sub Court, Kattappana. I.A.738/2004 was filed for passing final decree in terms of the preliminary decree. The suit was one for partition. The preliminary decree directs the property to be divided into two equal shares. The trial court in the preliminary decree reserved the right in favour of the defendant with respect to the room where he is conducting business. 2. In the final decree stage, the commissioner was deputed to divide the property by metes and bounds with the assistance of a Civil Engineer or a Surveyor. On the front side of the property there are two rooms which are used for commercial purposes. The eastern room is having an area of 33.28 sq.mtrs and the area of western room is 16.175 sq.mtrs. Appellants herein are in possession and occupation of the room having 33.285 sq.mtrs. Since the decree passed is for division of R.F.A.No.369/2009 2 property into two equal parts by metes and bounds, in order to have an equitable division of the building the commissioner suggested a method to divide the said building in two equal halves of 24.64 sq.mtrs each and separate sketches were also prepared. The commissioner also reported that a new wall has to be constructed in between the above said two rooms at the marking indicated by the civil engineer in his Annexure-II-C sketch attached to the report. The dividing line is marked in Annexure-I sketch in red line. Thus the commissioner and the civil engineer did the work of compartmentalisation by construction of a new wall. A small way is earmarked in between the two rooms as a common passage for access to the respective plots which lies on the southern side adjacent to the building portion. 3. The appellants filed serious objection to the commissioner's report. According to him, it is equitable for permitting him to retain the eastern room having 33.285 sq.mtrs. In such circumstances the appellant filed a petition to set aside the commissioner's report. The court below rejected the said R.F.A.No.369/2009 3 petition and accepted commissioner's report and passed a final decree. The appellant challenged the order passed by the trial court before this Court in W.P.(C).No.6977/2009. This Court considered the matter at length and held for the very same reasons stated above that the report and plan submitted by the commissioner with the assistance of the surveyor and engineer appears to be correct and it is the only way in which this tiny piece of land can be divided. This Court confirmed the decision passed by the trial court and held that the court below was right, did not interfere with the said report and did not find any ground to set aside the commissioner's report and plan. 4. The learned counsel for the appellants contended that if the division proposed by the commissioner is accepted, that will prejudice the appellants adversely for the reason that they have been conducting the business in the eastern room for the last 15 years and such a division may cause lot of hardship to the appellants. He pleaded that it is only just and equitable that the said room was allotted to the share of the appellants and that they are prepared to pay the owelty amount for the purpose of R.F.A.No.369/2009 4 equalisation of the value of the shares to be ordered by this Court. The learned counsel for the appellants contended that the commissioner, at the time of measurement and demarcation, found that there is excess extent of .68 cents which is an unregistered extent. It is pointed out that unless and until the said portion is identified, the division made by the court below without identifying the said portion may cause injury and hardship to one of the sharers. It is true that on measurement it was found that the extent of property is more than the registered holding. In fact, the commissioner ought to have identified that portion for the purpose of division. The very same question was considered by this Court in the writ petition referred above. This Court observed that the appellants pointed out that the non-patta land is lying as a way having a width of 3 feet and exclusively allotted to the share of the defendant for his ingress and egress. For the said reason this Court held that the said allotment need not have to be disturbed and directed that no land value is to be given to the defendant for the said pathway. So, the question now raised before this Court was given a quietus while R.F.A.No.369/2009 5 considering the legality of the order under challenge in the writ petition. 5. The trial court considered the respective contentions of the parties in I.A.738/2004 and passed the impugned order. After considering all the questions raised by the appellants as well as the plaintiff in the suit, the court below found that the commissioner along with the experts meticulously conducted measurement and filed Ext.C1 report accompanied by C1(a) and C1(b) sketches. The commissioner had made provisions for equalisation of the shares to the parties. The trial court elaborately discussed the commissioner's report. Commissioner's report and sketches were subject of meticulous scrutiny by the said court and subsequently by this Court in the writ petition. The allotment of building equally among the parties by construction of an additional wall for the use of a passage through the exact middle portion of the building is the finest method according to me for equalising the shares of the parties. This Court in the writ petition also concluded that the arrangement made by the commissioner with the help of an R.F.A.No.369/2009 6 expert for equalisation of the shares of the building does not require any interference. In this circumstances, I do not find any reason to interfere with the order passed by the trial court. In the result, the appeal fails and accordingly it is dismissed. No order as to costs. HARUN-UL-RASHID,JUDGE dvs