IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 RFA.No. 142 of 2008() --------------------- AGAINST THE FINAL DECREE PASSED IN FDIA 1570/2005 IN OS.63/1994 of SUB COURT, QUILANDY .................... APPELLANT/2ND RESPONDENT -------------------------------------------- O.GOPALA KURUP, S/O.RAMAN NAMBIAR, KUNHICHELILI HOUSE, CHERAPURAM, BADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.JESWIN P.VARGHESE SRI.K.RADHAKRISHNAN NAIR RESPONDENTS: PETITIONER & RESPONDENTS 1,3 & 4 ----------------------------------------------- 1. K.SAVITHRI, D/O.RAMAN NAMBIAR, MYLOTH HOUSE, VELAM, NOW RESIDING AT RATHI HOUSE, PUTHIYANGADI, KOZHIKODE DISTRICT. 2. MEETHALE VEETTIL MADHAVI AMMA, D/O.RAMAN NAMBIAR, CHERAPURAM, BADAKARA TALUK, KOZHIKODE DISTRICT. 3. K.MURALEEDHARAN, S/O.NARAYAN KURUP, KEEZHPADUKANDIYIL HOUSE, VELOM AMSOM, CHERUKUNNI DESOM, BADAGARA TALUK, KOZHIKODE DISTRICT. 4. M.V.RAJEEVAN, S/O.NARAYANAN NAMBIAR, METHALE VEETTIL, CHERAPURAM, BADAGARA TALUK, KOZHIKODE DISTRICT. R1, R2 & R4 BY ADV. SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.1224 OF 2008 IN R.F.A.NO.142 OF 2008 DISMISSED. 6.11.2008 SD/- PIUS C.KURIAKOSE, JUDGE. PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No.142 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 6th November, 2008 JUDGMENT This appeal by the 2nd respondent in the final decree application, the 1st defendant in the suit, is directed against the final decree in a suit for partition. The ground which is prominently raised is that the extent of the decree schedule property as per the preliminary decree which has become final, is 2 acres and 54 cents and that as per Ext.C1 plan submitted by the Commissioner appointed by the final decree court, the extent of the property measured and found is only 1 acre and 17 cents. According to the appellant, since on the terms of the preliminary decree, he is entitled for one-half, i.e. 1 acre and 27 cents, the entire property actually measured by the Commissioner and recommended by the Commissioner to be alloted amongst various sharers should have been allotted to him. He has also raised a ground that since there he was under treatment he was not able to file any objections to the Commissioner's report. 2. Heard Mr.Jeswin P.Varghese, counsel for the appellant and Mr.Ranjith Narayanan, counsel for respondents 1, 2 and 4, namely, plaintiff and defendants 5 and 7. RFA No.142/08 - 2 - 3. Making submissions on the basis of the grounds raised, learned counsel for the appellant drew my attention to the preliminary decree and highlighted that the same shows the extent of the property ordered to be partitioned as 2 acres and 54 cents. He submitted that the appellant being admittedly entitled for one-half of the above mentioned 2 acres and 54 cents is entitled to retain that much of extent towards his share since he is entitled under the preliminary decree to one half of the decree schedule property. Learned counsel submitted that the Advocate Commissioner omitted to measure the balance portion of the plaint schedule (preliminary decree schedule property) which is also covered by the preliminary decree and the application for passage of the final decree. 4. Learned counsel for the contesting respondents would oppose the submissions of learned counsel for the appellant and would support the impugned final decree. 5. I have considered the rival submissions and I have gone through the lower court records which are available. It is seen from the lower court records that the Commissioner submitted his report together with Ext.C1 plan which will show that the property which RFA No.142/08 - 3 - was actually found by the Commissioner on measurement to be available for division amongst the parties was only 1 acre and 17 cents. The appellant did not file any objections to the Commissioner's report. If the appellant was having any objections regarding the extent found by the Commissioner or regarding the properties actually measured by the Commissioner, it was for him to raise those objections. It is not as though the Commissioner's report and plan was straightway accepted by the court below. The 5th respondent in the suit filed an application to remit the Commissioner's report on various reasons. Importantly, the correctness of the extent reported by the Commissioner was not a reason stated for remittance of the Commissioner's report. The remittance application was allowed and the matter was remitted to the Commissioner. The present Ext.C1 is a plan submitted by the Commissioner pursuant to such remittance. On the day when the final decree application stood posted for enquiry, it was submitted by all parties that they do not propose to adduce any oral evidence and that Exts.C1 to C7 can be marked in evidence. The appellant was appearing through Adv.A.K.Sukumaran and the records reveal that Mr.Sukumaran also did not make any RFA No.142/08 - 4 - request for adducing oral evidence by his party or raise any objection to the marking of the documents. I am not at all impressed by the appellant's ground in the appeal memo that he was under treatment on that day (reference being obviously to the day on which measurement took place) and that the Commissioner had not given notice to the appellant's counsel. The complaint that the Commissioner had not given notice to the appellant's counsel stands belied by the Commissioner's report itself. Even if it is assumed that the appellant's version that on account of the treatment, he could not be present during inspection is correct, then also it has to be seen that after the report was filed, the matter stood posted before the trial court for orders. No medical evidence is produced by the appellant regarding the nature of the illness and the duration of the treatment undergone. Whatever that be, having been represented by an Advocate, it was always possible for the appellant to file objections to the Commissioner's report if he had objections. The preliminary decree has attained finality. On the terms of the preliminary decree, the appellant is entitled for only one-half of the preliminary decree schedule property which is now found on measurement by the RFA No.142/08 - 5 - Commissioner having an actual extent of 1 acre and 17 cents. It is clear that the appellant has exclusive enjoyment of the property all these years and that is why he is made liable for payment of mesne profits. I do not find any reason to interfere with the final decree passed by the trial court. The appeal fails and the same will stand dismissed. No costs. srd PIUS C.KURIAKOSE, JUDGE