IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 RSA.No. 37 of 2009() -------------------- AS.224/2005 of ADDL.DISTRICT COURT, KOZHIKODE OS.455/1995 of PRL.M.C.KOZHIKODE-I .................... APPELLANT/APPELLANT/RESPONDENT IN FD PETITION -------------------------------------------------------------------------------------------- T.M.BALAKRISHNAN, S/O.RAMAN, 'RAM VIHAR' WEST HILL, EDAKKAD AMSOM, DESOM, KOZHIKODE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S): RESPONDENTS/PETITIONER ---------------------------------------------------------------------------- 1. T.M.JANU, D/O.RAMAN, NADUVILE MALAKKAL THEKKUM MADATHIL, EDAKKAD AMSOM DESOM, KOZHIKODE. 2. T.M.DEVAKI, D/O.RAMAN,'RAM VIHAR' WEST HILL, EDAKKAD AMSOM DESOM, KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.37 of 2009 = = = = = = = = = = = = = = Dated this the 21 st day of January 2009 JUDGMENT The 1st defendant in O.S.No.455 of 1995 on the file of the Munsiff's Court, Kozhikode is the appellant in this second appeal. The said suit was one for partition and separate possession of one item of plaint schedule property having an extent of 79.96 cents. As per the preliminary decree which has become final, the appellant is entitled to 18/30 shares and the plaintiff is entitled to 3/30 shares and the 2nd defendant to 9/30 shares. In the final decree proceedings initiated as I.A.No.1328 of 2003, the final decree court appointed a Commissioner. The Commissioner deputed by the final decree court submitted the Exts.C1 to C5 reports and plan indicating the allotment. Plot No.1 admeasuring 8 cents was allotted to the plaintiff. Plot No.2 admeasuring 47.96 cents together with the residential house and the additional block, a shed and a well situated therein was alloted to the appellant/1st defendant. Plot No.3 admeasuring 24 cents was allotted to the 2nd defendant. The final decree court R.S.A.No.37 of 2009 2 has passed a final decree accepting the allotment suggested by the Commissioner and passed the final decree which has been confirmed in appeal. Hence this Second Appeal. 2. The following are the questions of law formulated in the memorandum of second appeal:- 1. Were the courts below have construed the Advocate Commissioner's plan and report legally and correctly while passing the final decree? 2. Were the allotment of plot No.1 to the 1st respondent herein is legal and proper? 3. The learned counsel for the appellant submitted that plot No.1 which has been allotted to the plaintiff and abutting the lane on its west and forming the western boundary of the northern portion of plot No.2 allotted to the appellant is proposed to be sold by the plaintiff to strangers. If the said proposal materializes, the privacy of the appellant will be lost. The appellant is therefore willing for the allotment of a plot situated to the south of plot No.2 to the plaintiff in exchange for plot No.1 which has been alloted to her. R.S.A.No.37 of 2009 3 4. The final decree court was not inclined to accept the said contention of the appellant. The plaintiff was not a consenting party to the above proposal. Even assuming that the plaintiff assigns plot No.1 alloted to her, it need not necessarily give rise to any problem of privacy for the appellant. Even if such a problem arises, the appellant can construct a compound wall along the lane “HI” in the plan submitted by the Commissioner. The plaintiff who has been deprived of her share all these years and who has been finally alloted Plot No.1 abutting the lane forming the western boundary of plot No.1 cannot be pushed away to an inconvenient plot towards the southern portion of plot No.2 admeasuring 47.96 cents to her disadvantage and detriment. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal, which is accordingly dismissed in limine. Dated this the 21st day of January, 2009. V. RAMKUMAR, JUDGE sj