IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 RSA.No. 191 of 2011() --------------------- AS.31/2010 of ADL.SUB COURT, THALASSERY OS.146/2006 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANT/APPELLANT/DEFENDANT NO.4 ------------------------------------------------------ JAYAKRISHNAN,S/O.BARATHAN,AGED 64 YEARS, RESIDING AT KRISHNA NIVAS,THILLERI, POST OFFICE ROAD, KANNUR-1. BY ADV. SRI.C.P.MOHAMMED NIAS SMT.M.LISHA RESPONDENT(S): RESPONDENT/PLAINTIFFS,D1TOD3 AND D5 TO D9. --------------------------------------------------------- 1. MALINI SHANKARAN, D/O.LATE DHANJAYAN, AGED 78 YEARS, RESIDING AT AE 124,(79B HUDCO)SHANTHY COLONY,4TH AVENUE, ANNA NAGAR, CHENNAI. 2. GEETHANJALI RAVI, D/O.LATE KRISHNAVENI AGED 50 YEARS,RESIDING AT 3263 SECTOR B,POCKER III VASANT KUNJ, NEW DELHI-110070 3. SHEILA VENKATESHWARALU, D/O.LATE KRISHNAVENI, AGED 47 YEARS, RESIDING AT S 14, CROSS STREET, CHENNAI-30. 4. D.SATHYANAND,S/O.LATE DHANANJAYAN, AGED 64 YEARS, C/O.ANOOP SATHYANAND, 44, SHYAMPUR ROAD, K.G.HALLI, NEAR AMBEDKAR MEDICAL COLLEGE, BANGALORE-45. 5. PUSHPA, D/O.LATE DHANANJAYAN, AGED 59 YEARS, RESIDING AT MINI VILLA, TALAP, KANNUR-670002. 6. RENUKA SIVARAM,D/O.LATE DHANANJAYAN, AGED 56 YEARS,FLAT NO.H.NUTESCHREYA, 20,8TH CROSS STREET, CHENNAI-30. 7. SREELATHA, D/O.LATE DHANANJAYAN,. AGED 52 YEARS, KUYYATTIL HOUSE, NEAR ENGLISH CHURCH, THAVAKKARA, KANNUR-670 001. 8. ROOPA JAYADEV,W/O.LATE JAYADEV AGED 52 YEARS, B6 439/1/A/5, SATHYANARAYANA NAGAR, DOUIDIMALKAPUR,HYDERBAD,PIN 500028. 9. AJAY JAYADEV,S/O..LATE JAYADEV AGED 25 YEARS, RESIDING AT B6.439/1/1/5 SATHYANARAYANA NAGAR, DOUIDIMALKAPUR,HYDERBAD,PIN 500028. 10. RADHAKRISHNA BHARATHAN,S/O.LATE BHARATHAN,AGED 76 YEARS, PARVATHI NURSING HOME, OLD NO.798, JECOADNAM SALAI, K.K.NAGAR,CHENNAI 600 078. 11. ARUNA PRABHAKARAN, D/O.LATE MEERA, AGED 50 YEARS, RESIDING AT SILVER OAKS, NADAKKAVU WEST, KOZHIKODE-11 12. VIVEK RAJAPADMANABHAN, S/O.LATE MEERA, RESIDING AT 202, GARGAN VASATHI, 7, BOREBANK ROAD, BENSON TOWN, BANGALORE 560 046. 13. SHANKAR KALLAT, S/O.LATE CHITHRA, AGED 48 YEARS, RESIDING AT 101, GARGAN VASATHI, 7, BOREBANK ROAD, BENSON TOWN, BANGALORE 560 046. 14. ANAND KALLAT S/O.LATE CHITHRA, AGED 47 YEARS, RESIDING AT 101, GARGAN VASATHI, 7, BOREBANK ROAD, BENSON TOWN, BANGALORE 560 046. 15. REVATHI HEMLAL, D/O.LATE RETHNA, RESIDING AT PUTHIYA PURAYIL HOUSE, THUVAKODE PO, VIA QUILANDY-673304,KOZHIKODE. 16. GOVIND CHANDRASEKHARAN, S/O.LATE RETHNA AGED 35 YEARS RESIDING AT KINGSLEY, VENGALAM PO, VIA KORAPPUZHA,673 303, ELATHUR, CALICUT. 17. REVI BHASKARAN, S/O.LATE SREEMATHI, AGED 6 YEARS, RESIDING AT 234, RAILWAY COLONY, 3RD STREET, AMANJIKKARAI, CHENNAI-600 029. 18. HARI BHASKARAN, S/O.LATE SREEMATHI, AGED 57 YEARS, RESIDING AT 306, CLIFFTON APTS,, CHARMWOOD VILLAGE, SURAJ KUNNDH ROAD, HARYANA 121 009. 19. VIDYA SURENDRAN, D/O.LATE HEMA, AGED 37 YEARS, BLOCK 1 C FLAT 103, WELLINGTON APARTMENTS, PHASE 5 DLF, GURGAON 122001 HARYANA. 20. GEETHA BHASKARAN,W/O.LATE VENUGOPAL AGED 60 YEARS, RESIDING AT SURYAKIRAN APARTMENT, FROGER TOWN, BANGALORE-5. 21. ANAND BHASKARAN,S/O.LATE VENUGOPAL AGED 38 YEARS, RESIDING AT SURYAKIRAN APARTMENT, FROGER TOWN, BANGALORE-5. 22. PREETHY BHASKARAN, W/O.LATE JAYAPAL, AGED 55 YEARS, RESIDING AT KALYANI, AC BLOCK NO.21,ANNA NAGAR, CHENNAI-40. (RES NO.1-4,6 ,8 ,22 THROUGH THEIR PA HOLDER PUSHP PA DHANANJAYAN D/O.LATE DHANANJAYAN,RESIDING AT MINI VILLA,NEAR SUNDARESWARA TEMPLE,TALAP,KANNUR-2 23. GOVINDAKRISHNAN, S/O.LATE BHARATHAN, AGED 66 YEARS OCCUPATION IS NOT KNWON, RESIDING AT CHITRAVATHI, CHITTOOR ROAD, KACHERIPADI, ERNAKULAM. 24. MOHANKRISHNAN,S/O.LATE BHARATHAN, AGED 65 YEARS, OCCUPATION IS NOT KNOWN, RESIDING AT NO/.2 SAILATHA, BISHOP WALACE AVENUE, MYLAPUR, CHENNAI-4. 25. SATHIDEVI, D/O.LATE BAHARATHAN, AGED 63 YEARS, NO OCCUPATION, RESIDING AT 2C MAY FLOWER ANNAPOORNA APARTMENTS,IV STREET, K.K.PUDUR PO, COIMBATORE-641 038. 26. NISHA D/O.LATE JAYADEV, AGED 28 YEARS, OCCUPATION NOT KNOWN, RESIDING AT 71, POND STREET, APT.14/A QUNICY, MA.02169 USA. 27. REENA, D/O.;LATE HEMA, AGED 35 YEARS, OCCUPATION NOT KNOWN,RESIDING AT 14,UNDERWOOD DRIVE, DORWALE MELBOURNE,VICTORIA 3111,AUSTRALIA. 28. DEEPA,D/O.LATE HEMA, AGED 32 YEARS, OCCUPATION NOT KNOWN,RESIDING AT C/O.BAHWAN AUTOMOTIVE CENTRE,PO.BOX NO.3168,RUWI,POSTAL CODE 112, MUSCAT, SULTANATE OF OMAN, 29. SANJAY, S/O.LATE JAYAPAL, AGED 32 YEARS, OCCUPATION NOT KNOWN, RESIDING AT AT 1793, INDEPENDENCE BLOOD APARTMENT,NO 104, SALINAS CA 93903 USA. 30. RAJESH, S/O.LATE JAYAPAL, AGED 31 YEARS, OCCUPATION NOT KNOWN, RESIDING AT 425,SOUTH NUBHARDAS LANE, APARTMENT NO.167,LOUISVI LA,KY 40207. ADV. SRI.A.MOHAMED MUSTAQUE FOR CAVEATOR SRI.T.PRAVEEN FOR CAVEATOR SMT.LAKSHMI RAJAN FOR CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.191 OF 2011 --------------------------------------------- Dated 14th February, 2011 JUDGMENT Fourth respondent in I.A.3326/2007 in O.S.146/2006 on the file of Munsiff's Court, Kannur filed this appeal challenging dismissal of A.S.31/2010 filed before Sub Court, Thalassery challenging the final decree. 2. Learned counsel appearing for the appellant and learned counsel appearing for respondents 4 and 5 were heard. 3. As per the final decree learned Munsiff divided the plaint schedule property and allotted plot B of Ext.C2 plan to the appellant and plot A to the share of plaintiff and defendants 5 to 9 and plot C RSA 191/11 2 to defendants 1 to 3. Plaintiffs 5 to 9 were directed to pay Rs.2,06,232.83 to defendants 1 to 3 and Rs.10,507.10 to the appellant as owelty amount towards equalization of the shares. Appellant filed A.S.31/2010 before Sub Court, Thalassery challenging the allotment contending that as appellant has been residing in the house for the last 25 years, it should have been allotted him. As is clear from the judgment of the learned Sub Judge, before the first appellate court the only contention which was pressed was, the prayer for time to vacate the house in plot A of Ext.C2 plan. Judgment shows that before the trial court two years time was sought for which was repeated in the appeal memorandum. Judgment further shows that appellant had prayed for two months time and finding that there was somersault and eight RSA 191/11 3 months already elapsed after passing the final decree it was held that appellant is not entitled to get further time. The appeal was dismissed. It is challenged in the second appeal. 4. Fifth respondent has filed a caveat. Therefore, notice was served on the counsel who filed the caveat. Subsequently, same counsel has filed vakalath for fourth respondent also. 5. Argument of the learned counsel appearing for the appellant is that in spite of the specific contention that appellant is entitled to get a period of two years to vacate the house, first appellate court took it as two months. It was on the ground that eight months already elapsed, the appeal was dismissed. It is submitted by the learned counsel that RSA 191/11 4 appellant is to be granted two years time. Learned counsel appearing for respondents 4 and 5 opposed the prayer for further time, pointing out that final decree was passed on 29/9/2009. 6. Considering the entire facts, I do not find that any substantial question of law is involved in the appeal. But as the appellant has been admittedly residing in that house he is granted five months time to vacate the house, provided he files an affidavit before executing court undertaking to unconditionally vacate the possession of the building in plot A in Ext.C2 plan on expiry of five months from today. If such an affidavit is filed, delivery shall not be effected for five months. It is made clear that if the affidavit is not filed within ten days from today, appellant is not RSA 191/11 5 entitled to get any further time and the executing court is to deliver the property including the house. M.SASIDHARAN NAMBIAR, JUDGE. uj.