IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 SA.No. 748 of 1997(E) ------------------------------- AS.5/1996 of SUB COURT, KASARAGOD OS.263/1985 of PRL.MUNSIFF, KASARAGOD (IA 1099/86) .................... APPELLANT(S): APPELLANT/3RD RESPONDENT/ 3RD DEFENDANT ------------------------ T.AMBU, SON OF POKKANTE APPA, RESIDING AT NITTOORMOOLE IN MULIYAR VILLAGE OF KASARAGOD, TALUK, P.O. IRIYANNI. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT(S): RESPONDENTS/PETITIONER/PLAINTIFF AND RESPONDENT ---------------------------- NO. 2 DEFENDANT NO.2. 1. BALAKRISHNAN, SON OF APPA 2. T.ACHUTHAN, S/O. KORAPPALU. NO. 1 IS RESIDING AT PARAPPE IN KUTTIKOLE VILLAGE AND POST, KASARAGOD TALUK, NO.2 IS RESIDING AT KURICHIINADUKKAM, BEEMUNGAL, BADADKA VILLAGE AND POST, KASARAGOD TALUK. R1 BY ADV. SRI.S.VINOD BHAT THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J. ---------------------------------------- S.A.No.748 of 1997 ---------------------------------------- Dated this the 9th day of July, 2010 JUDGMENT Third defendant in a suit for partition has filed this appeal challenging the final decree passed in that suit, as confirmed by the first appellate court. In the final decree proceedings an Advocate Commissioner deputed by the court after carrying out measurement of the suit property filed a report and plan showing the division to be effected in terms of the preliminary decree. The appellant/3rd defendant objected to the report, and, on enquiry, the objections having been found meritless, they were negatived by a separate order. Acceptance of the report filed by the Commissioner resulted in the passing of the final decree in terms thereof. The final decree so passed was challenged by the 3rd defendant preferring an appeal before the Sub Court, Kasaragod. After considering the grounds canvassed to impeach the final decree and finding them to be meritless, the appeal was dismissed, confirming the decree passed by the court below. S.A.No.748 of 1997 :: 2 :: 2. Perusing the impugned judgment rendered by the learned Sub Judge, it is seen, the challenges canvassed were essentially with respect to the merit of the preliminary decree and not of any proceeding relating to the final decree. It is also noticed that the appellant/3rd defendant had remained ex parte in the preliminary decree proceedings, and the main greivance espoused by him in the appeal was that by fraudulent means a vakalath had been filed on his behalf to show that he had contested the proceedings. In the appeal against the final decree, the learned Sub Judge rightly and correctly held that the questions canvassed by the appellant whether he was ex parte in the preliminary decree proceedings or had filed a vakalath do not arise for consideration. So far as the Commission report and plan, on the basis of which the final decree was passed, it is stated in the impugned judgment by the learned Sub Judge that no challenge was raised at the time of hearing, though in the final decree proceedings he had filed objections to the report. S.A.No.748 of 1997 :: 3 :: 3. Perusing the memorandum of appeal impeaching the judgment of the learned Sub Judge and also the materials of the case, it is seen, the grounds canvassed relate to the merit of the preliminary decree granted and not in respect of any matter covered in the final decree proceedings. The appeal being one against the final decree passed accepting the report and plan prepared by the Commissioner in respect of which no tenable ground has been canvassed or substantiated, the irresistible conclusion follows that it deserves no consideration, but only to be dismissed. Appeal dismissed, directing the parties to suffer their costs. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//