IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 RFA.No. 76 of 2010 --------------------------- (AGAINST THE JUDGMENT DTD. 13/02/2009 IN IA .NO.2528/2006 IN OS.20/1987 OF ADDL.SUB COURT,KOTTAYAM) .................... APPELLANT/RESPONDENT/DEFENDANT: ----------------------------------------------------------- C.J.AUGUSTINE, AGED 76, S/O.LATE OUSEPH, CHERIMALAYIL, AMBIKA MARKET, P.O,VECHOOR, VAIKOM TALUK. BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR, SRI.P.VISWANATHAN, SRI.G.JAYASANKAR, SRI.AJU MATHEW, SRI.V.VARUN. RESPONDENTS/PETITIONERS/PLAINTIFFS: -------------------------------------------------------------- 1. THANKAMMA THOMAS, AGED 70, W/O.LATE V.E.THOMAS, PALLIVATHUKKAL HOUSE, 13/674, A.GREESHMA, B.M.C. P.O, COCHIN. 2. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. R1 BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE, R2 BY SR. GOVT. PLEADER SRI. P.K. BABU, ADV.SRI.S.SUJIN FOR CAVEATOR. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.F.A. NO. 76/2010: ORDER ON I.A. NO. 424/2010 IN R.F.A. NO. 76/2010 DISMISSED 01/06/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. ........................................... R.F.A.NO.76 OF 2010 ............................................. Dated this the 1st day of June, 2010. J U D G M E N T This is an appeal preferred by the 1st defendant against the final decree passed by the Additional Subordinate Judge, Kottayam in I.A.No.2528/2006. A fight between a brother and sister started way back in 1987 and ultimately the sister succeeded in getting her half share over A schedule property declared and therefore, she moved an application for passing of the final decree. The sister also in that process decided to forgo the mense profit as well as 50% of the value of the building fixed by the Commissioner. 2. Now the dispute centers around item 3 described in A schedule. The schedule would reveal that it has got a total extent of 34 cents 430 sq. links. The Commissioner has divided the same equally i.e., 17 cents 215 sq. links to the brother and sister. The brother moved an objection contending that he must be allotted the entire item 3 of the property. But it did not weigh with the court below and it accepted the Commissioner's plan and report. : 2 : R.F.A.NO.76 OF 2010 3. The learned counsel for the appellant would submit before me that when the property is divided into two different halves in the way which the Commissioner has done, there will be only four finger space left after the wall of the building and therefore it may cause the party all the difficulties. It has to be remembered that the wall always operates as the boundary of the building and this was not in the contemplation of the appellant at all . When he files his objection before the court on the Commissioner's report, he did not move his little finger to object to the said method of allotment but only contended that the entire item 3 should be alloted to him. On the other hand, the sister adopted an attitude whereby she wanted to put an end to the litigation thereby decided to forgo the mense profits as well as value of the building which is due to her. Again the attempt is to get whole things reopen and the matter to be protracted. The sister is entitled to 17 cents and 215 sq.links. The Commissioner had visited the property and he had demarcated the property and no portion of the building intrudes into the : 3 : R.F.A.NO.76 OF 2010 property alloted to the sister. Just because immediately on one side of the building there is a property allotted to sister,it will not cause any inconvenience to the brother. The sister has stated that there is need for their good relationship and let there be a final end to the litigation. 4. I feel in the absence of any objection raised, it will not cause any detrimental loss to the appellant and as the Commissioner's allotment appears to be just and reasonable, I do not propose to interfere with the allotment made by the Commissioner which is accepted by the court below. Therefore the appeal lacks merit and it is dismissed. M.N. KRISHNAN, JUDGE. cl : 4 : R.F.A.NO.76 OF 2010 M.N. KRISHNAN, J. ........................................... R.F.A.NO.76 OF 2010 ............................................. 1st day of June, 2010. J U D G M E N T