IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 RSA.No. 644 of 2004(B) --------------------- AS.190/1999 of ADDL.DISTRICT COURT,KOTTAYAM OS.147/1987 of MUNSIF COURT, KANJIRAPPALLY .................... APPELLANT/APPELLANT/1ST DEFENDANT ----------------------------------------------------- FRADARIC PAUL, S/O.POULOUSE, PLACKAL KOCHUPARAMBIL, KORATTY KARA, KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM. BY ADV. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENT(S): PLAINTIFFS 1 TO 3 & D2/RESPONDENTS ------------------------------------------------------------------------------------ 1. K.P.ABRAHAM, KOCHUPARAMBIL HOUSE, THANNIPARA KARA, ARUNAPURAM VILLAGE, UDUMBANCHOLA, IDUKKI DIST. 2. ANDAMMA, PURAYIDATHIL HOUSE, THULAPPALLY KARA, RANNI, PATHANAMTHITTA DIST. 3. MARIYAMMA @ MAMMIKUTTY, PUNNAKUZHIYIL.HOUSE, LAYIKKATTU KARA, PERUNNA VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM. 4. FABIYOLA, PANTHIRUVELIL HOUSE, VADAKKUMBHAGOM MURI, CHIRAKKADAVU VILLAGE, KANJIRAPPALLY, KOTTAYAM. THIS REGULAR SECOND APPEAL COME UP FOR ADMISSION ON 09/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------- R.S.A No. 644 OF 2004 ---------------------------------------- Dated this the 9th day of November, 2011 JUDGMENT 1st defendant in O.S. 147/87 on the file of Munsiff Court, Kanjirappally is the appellant. Respondent No. 1 to 3 are the plaintiffs. 4th respondent is the 2nd defendant. Suit was for partition and separation of share of plaintiffs. The suit was originally dismissed by judgment dated 02/07/1999. It was challenged before District Court, Kottayam in A.S. 190/1999. The appeal was allowed and the suit was remanded after finding that the plaint schedule property belongs to deceased Paily Paulose and it is liable to be divided among the legal heirs of Paily paulose. The suit was remanded for considering only the question of share of mesne profits. Learned Munsiff thereafter by preliminary decree dated 02.07.1999, directed division of the plaint schedule property into six equal shares and allotment of two shares to respondents 1 and 2. It was also found that the respondents 1 and 2 are entitled to share of profit at the rate of 5,000/-(Rupees Five thousand only) per annum. Question of R.S.A. No. 644 of 2004 -2- reservation and equity were left open to be decided in the final decree proceedings. Appellant challenged the decree before Additional District Court, Kottayam in A.S. 190/1999. The learned District judge on re-appreciation of the evidence confirmed the preliminary decree and dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. The only dispute is with regard to the quantum of the mesne profits. The learned Munsiff fixed the quantum at Rs.5,000/- (Rupees Five thousand only) per annum based on the evidence. The learned District Judge confirmed that finding based on re- appreciation of the evidence. That factual finding cannot be interfered in exercise of power under Section 100 of Civil Procedure Code. There is no substantial question of law involved. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE. Kp/