IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 RSA.No. 572 of 2009() --------------------- AS.367/2008 of I ADDL. DISTRICT COURT, PALAKKAD OS.560/2004 of MUNSIFF COURT, CHITTUR (IA.874/2007,IA.2183/2006) .................... APPELLANT/APPELLANT/RESPONDENT/DEFENDANT: --------------------------------------------------- MURUGADAS, S/O.CHAMI ASSARI, AGED 38 YEARS, RESIDING AT KAMMANTHARA, KODUVAYUR AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY SMT.A.PREMAKUMARI RESPONDENT/RESPONDENT/PETITIONER/ PLAINTIFF: ------------------------- NANUKUTTY, S/O.CHAMI ASSARI, RESIDING AT KAMMANTHARA, KODUVAYUR AMSOM, CHITTUR TALUK, PALAKKA DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.572 OF 2009 --------------------------- DATED THIS THE 22ND DAY OF JUNE, 2009 JUDGMENT Defendant in O.S.No.560/04 on the file of the Munsiff's Court, Chittur is the appellant. The appeal is directed against the common order in I.A.No.874/2007 in I.A.No.2183/2006 in A.S.No.367/2008 on the file of the Ist additional District Court, Palakkad. The order was passed in I.A.No.874/2007, which is a petition filed by the plaintiff seeking an order to conduct auction of the plaint schedule property in between the sharers. The said I.A. was allowed by the trial court and confirmed in appeal by the Appellate Court. Hence, the second appeal. 2. The matter arises in final decree proceedings. A preliminary decree was passed dividing the plaint schedule property into six shares and declared that the plaintiff is entitled to get 5/6 share and the remaining 1/6 share allotted to the defendant. Preliminary decree also directs that the question of -2- R.S.A.No.572/2009 allotment of building to the share of the defendant on the principles of equity can be considered at the time of passing the final decree. 3. Advocate Commissioner appointed to divide the property and effect partition, reported that it is not possible to effect partition by metes and bounds considering the nature, lie and extent of the property. On the basis of the Commissioner's report, the plaintiff moved an application before the court below for conducting auction in between the sharers. But the defendant contended that the property is partible and one cent of land out of six cents can be demarcated and separate allotment is possible in his favour. The defendant requested the trial court to entrust the task by ear-marking 1 cents of land to the Commissioner. The trial court accepted the request of the defendant and directed the Commissioner to once again inspect the property in the presence of both sides and to examine the proposal and to report about its feasibility. The Commissioner after inspection reported that the house in the plaint schedule property faces to the north, -3- R.S.A.No.572/2009 that it is not possible to carve out one cent as proposed from the northern side and if it is done so, the frontage to the house will be lost and there will be no entrance available to the house and that if such a division is made, the separated plots cannot be conveniently put in use. The trial court and the Appellate Court are convinced that it is not possible to divide the property by metes and bounds without destroying its intrinsic value. Therefore, the trial court allowed the petition and ordered to auction the plaint schedule property in between the sharers in open court. The said order was challenged by the defendant in appeal. The Appellate Court dismissed the appeal confirming the order passed by the trial court. Now the sole defendant filed the second appeal challenging the findings of the courts below. 4. I have also examined the findings entered by the courts below. I am of the considered view that the findings of the courts below are the only possible view that can be arrived at in the given circumstances. I find that it is not possible to take a different view on the basis of the facts and circumstances and the -4- R.S.A.No.572/2009 evidence on record. The findings entered into are based on the evidence and the Commissioner's report and plan. No grounds are made out to interfere in the second appeal under Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this second appeal. The appeal fails and it is accordingly dismissed. HARUN-UL-RASHID, Judge. kcv.