IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 RSA.No. 29 of 2009() -------------------- AS.54/2006 of SUB COURT, KASARAGOD OS.339/2003 of PRL.MUNSIFF, KASARAGOD (FDIA.1260/2005) .................... APPELLANT --------------------- NARAYANA , AGED 68 YEARS S/O. LATE CHERIYAMMA, FISHERMAN, RESIDING AT NEW BANGARA HOUSE, MANIMUNDA, UPPLA VILLAGE & POST KASARGOD TALUK. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): --------------- 1. SEETHAMMA, W/O. LATE KRISHNAPPA, RESIDING AT CHOYYICHIAMMA NIVAS, ADKATHVAIL, NORTH BEACH, KASARGOD POST. 2. SALINI, D/O.LATE KRISHNAPPA, RESIDING AT CHOYYICHIAMMA NIVAS, ADKATHVAIL, NORTH BEACH, KASARGOD POST. 3. CHANDRAVATHI, D/O.LATE KRISHNAPPA, RESIDING AT CHOYYICHIAMMA NIVAS, ADKATHVAIL, NORTH BEACH, KASARGOD POST. 4. INDIRA, D/O.LATE KRISHNAPPA, RESIDING AT CHOYYICHIAMMA NIVAS, ADKATHVAIL, NORTH BEACH, KASARGOD POST. 5. REVATHI, D/O.LATE KRISHNAPPA, RESIDING AT CHOYYICHIAMMA NIVAS, ADKATHVAIL, NORTH BEACH, KASARGOD POST. 6. BINDHU, D/O.LATE KRISHNAPPA, RESIDING AT CHOYYICHIAMMA NIVAS, ADKATHVAIL, NORTH BEACH, KASARGOD POST. 7. NAGESH, S/O. LATE KRISHNAPPA, RESIDING AT CHOYYICHIAMMA NIVAS, ADKATHVAIL, NORTH BEACH, KASARGOD POST. 8. VINDO, S/O. LATE KRISHNAPPA, RESIDING AT CHOYYICHIAMMA NIVAS, ADKATHVAIL, NORTH BEACH, KASARGOD POST. 9. KAMALA, W/O. LATE RAMAPPA RESIDING AT MANIMUNDA, UPPLA VILLAGE AND POST KASARGOD TALUK. 10. SADANANDA, RESIDING AT RAYARA COMPOUND BANGARA, UPPALA VILLAGE AND POST, KASARAGOD TALUK. 11. KUSUMA, D/O. CHERIYAMMA W/O.N.GOPALAN, RESIDING AT KUNNIL HOUSE NELLIKUNNU BEACH ROAD, KASARGOD KASBA VILLAGE & POST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.29 OF 2009 -------------------------------- Dated this the 1st day of October 2010 JUDGMENT The second appellant in a suit for partition has filed this appeal challenging the concurrent decision rendered by the two courts below in respect of the final decree passed in the above suit. The preliminary decree passed, fixing the shares of the parties in the suit property, provided for determination of equitable considerations canvassed by them in the final decree proceedings. The appellant/second defendant had canvassed for having exclusive right over the residential building situate in the property, without any owelty claim of other sharers, contending that it was reconstructed by him after demolishing the previously existing thatched building, wherein, admittedly, the parents of the parties were in occupation. To sustain the claim so canvassed, he got himself examined as RW1, and also exhibited Exts.B1 to Ext.B3 in evidence in the final decree proceedings. His evidence was found to be contradictory by the courts below in the sense that he had given divergent versions as to whether repair was carried to in an existing building or putting up a new construction after demolishing the old one. Whatever that be, he did not tender any documentary evidence to show that a new building was put up after approval of a plan and obtaining of permit from R.S.A No.29 OF 2009 - 2 - the local authority. Under the preliminary decree passed in the suit, the second defendant was alloted 4/20 share in the suit property. That decree also provided for the entitlement of the other sharers to claim mesne profits, with the determination of the quantum thereof relegated to the final decree proceedings, from the second defendant who continued in occupation of the building and enjoyment of the suit property. The trial court, on the materials placed and also considering the facts and circumstances presented was persuaded to extend equitable consideration in favour of the second defendant to the extent of holding that towards his share in the allotment made, the land comprising the building has to be provided. However, his claim to have that building in his share exclusively without any liability of providing owelty money to the other sharers was turned down. The quantum of mesne profits liable to be paid by him to the other sharers as determined by the commissioner was also found acceptable to the trial court. On the above basis, the trial court passed a final decree, which after reappreciation of the materials, was upheld by the lower appellate court turning down the challenges raised against such decree by the second defendant/appellant before that court. R.S.A No.29 OF 2009 - 3 - 2. I heard the learned counsel for the appellant/second defendant. No counter evidence was let in by any of the sharers as against the evidence tendered by the appellant in support of his claim over the building and the appellant had produced documentary materials Exts.B1 to Ext.B3 to sustain his claim, but, it was not considered by both the courts below is the submission of the learned counsel to contend that the concurrent decision rendered by the courts below call for interference. Needless to point out that the lower appellate court is the last fact finding authority on disputed issues involved in a suit or proceeding, and it is not open to this court to examine in detail the correctness of such finding in the absence of satisfaction that a substantial question of law over the decision rendered by the courts below require to be considered, admitting the second appeal, as envisaged under Section 100 of the Code of Civil Procedure. What had been canvassed by the second defendant/appellant was, at the most, only an equitable relief, and he cannot be heard to say that he has any legal right for the claim canvassed over the building. The appellant/second defendant is having only 4/20 share. Admittedly, he continues to be in enjoyment of the building and the entire suit property to the exclusion of other sharers for the last so many years. Whatever be the quantum of R.S.A No.29 OF 2009 - 4 - mesne profits fixed by the commissioner and awarded by the court to be paid as compensation to the other sharers, there cannot be any doubt that the appellant had deprived them of substantial benefits which they would have enjoyed if they were having joint possession and enjoyment of the property. That is also a circumstance to be taken into consideration by the court especially where no convincing material was let in by the appellant/second defendant to sustain his claim for allotment of the building without liability to pay owelty money thereof to the other sharers and that too where the evidence let in by him presented contradictory versions over the claim so mooted. I do not find any impropriety in the concurrent decision rendered by the courts below turning down the claim set up by the second defendant over the building in the suit property. Appeal is devoid of any merit, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv