IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 RSA.No. 1325 of 2011() ---------------------- AS.73/2009 of PRL.Sub COURT,THALASSERY OS.578/2004 of PRL.M unsiff COURT.,KANNUR .................... APPELLANT/APPELLANT/DEFENDANT --------------------------------------- M.P.PRAMEELA, W/O.SATHYASHEELAN, AGED 59 YEARS, KALIYAN HOUSE, NEAR MAX NURSERY GARDEN, THALIKAVU, KANNUR. BY ADV. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA SMT.ANUPAMA JOHNY RESPONDENTS/RESPONDENTS/ PLAINTIFFS ------------------------------------------------ 1. M.SOMASUNDARAN, S/O.SHARADA, AGED 63 YEARS, KOLIYAN HOUSE, NEAR MAX NURSERY GARDEN, THALIKAVU, KANNUR. 2. M.P.SARALA, S/O.SHARADA, KOLIYAN HOUSE, NEAR MAX NURSERY GARDEN, THALIKAVU, KANNUR. 3. M.P.SATHEESAN, S/O.SHARADA, AGED 58 YEARS, KOLIYAN HOUSE, NEAR MAX NURSERY GARDEN, THALIKAVU, KANNUR. ADV. SRI.K.V.PAVITHRAN FOR R1-3 SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R1-3 SRI.E.M.UNNIKRISHNAN (MANJERI) FOR R1-3 SRI.K.C.ANTONY MATHEW FOR R1-3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1325 OF 2011 --------------------------------------------- Dated 22nd November, 2011 JUDGMENT Defendant in O.S.578/2004 on the file of Munsiff Court, Kannur is challenging the final decree passed by the learned Munsiff, as confirmed by Sub Court, Thalassery in A.S.73/2009. As per the preliminary decree dated 14/6/2005, the plaint schedule property was found available for partition and first plaintiff is entitled to 2/5 share and plaintiffs 2 and 3 to 1/5 shares each and appellant, the sole defendant, is entitled to 1/5 share. I.A.4405/2005 was filed by respondents/plaintiffs to pass a final decree in accordance with preliminary decree. A commission was appointed to RSA 1325/11 2 divide the property. Before the Commissioner the appellant submitted that upstair portion of the house be allotted to her share. The Commissioner reported that such division is not feasible. The Commissioner divided the property and allotted the house to the respondents, who are together entitled to 4/5 shares. Though an objection was filed by the respondents/plaintiffs, regarding valuation, contending that valuation of the house is excessive, appellant did not file any objection. Learned Munsiff accepting Exts.C1 to C4, passed the final decree. Respondents challenged the decree before Sub Court, Thalassery in A.S.73/2009. Learned Sub Judge on reappreciation of evidence, dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for the RSA 1325/11 3 appellant and learned counsel appearing for respondents who appeared as their own were heard. 3. Learned counsel appearing for the appellant submitted that the appellant has no other house and the house in the plaint schedule property is a palatial house situated in an extent of 5 cents and in such circumstances, it is feasible to allot the upstair portion to the appellant. It was also submitted that even if it is not possible, appellant would be satisfied with a portion of the house even on the ground floor and in such circumstances, the final decree warrants modification. Learned counsel appearing for the respondents pointed out that apart from filing a memo before the Commissioner even after allotment of the house to the respondents RSA 1325/11 4 appellant did not file any objection. Report of the Commissioner shows that allotment of the upstair portion to the appellant is not feasible. It is submitted that no evidence was also adduced by the appellant and in such circumstances, no interference in the final decree is warranted. 4. In view of the vehement submission of the learned counsel appearing for the appellant for allotting a portion of the house to the appellant, learned counsel appearing for the respondents was asked whether case could be settled, if it is sent to the Adalath. Learned counsel appearing for the respondents wanted to ascertain with the respondents for getting instructions. Learned counsel appearing for the respondents then submitted that there is no chance for any settlement and the RSA 1325/11 5 relationship between the appellant and respondents is so strained that it is not possible to have a common residence. It was also pointed out that it is not feasible to allot a portion of the house to the appellant. In the light of the submission, it is clear that no purpose will be served by sending the appeal to the Adalath for amicable settlement. 5. As is clear from the records apart from the filing a memo before the Commissioner for allotting upstair portion of the house to the appellant, who is having only 1/5 share, when the Commissioner reported before the learned Munsiff that it is not feasible to allot portion of the house to the appellant, she did not file any objection. Though respondents filed objection regarding valuation of the building, appellant did not adduce any RSA 1325/11 6 evidence to show that it is feasible to allot a portion of the house to the appellant. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.