IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N. KRISHNAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 AS.No. 573 of 2002() ------------------- AGAINST THE ORDER DATED 25/06/2001 IN IA. 3122 /1998 IN OS.1048/1991 of PRL.SUB COURT,TRIVANDRUM ................... APPELLANT / 4TH CR.PETITIONER/4TH DEFENDANT: ----------------------------------------------------------------------------- RADHAMANI, D/O. KAMALAMMA, T.C.3/2025, OPP.GIRLS HIGH SCHOOL, PATTOM, TRIVANDRUM. BY ADV. SRI.R.S.KALKURA RESPONDENTS / PETITIONER / PLAINTIFF / CR.PETITIONER 1 TO 3 & 5 TO 7 / --------------------------------------------------------------------------------------------------------------- DEFENDANTS 1 TO 3 AND 5 TO 7 : ------------------------------------------------ 1. K.S. SUSEELA, D/O. K.KAMALAMMA, RESIDING AT KANJIKKAL HOUSE, HOUSE NO.VIII/582, MAVARATHALAKONAM, KALLAMPALLY, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 2. A. KAMALAMMA, D/O. AMMALU, RESIDING AT T.C.3/2025, OPPOSITE GIRLS HIGH SCHOOL, PATTOM, THIRUVANANTHAPURAM. 3. THANKAPPAN, S/O. LATE KUPPAYYAN, EMPLOYEE, HOSPITAL COOK, T.B. HOSPITAL, PULAYANARKOTTA, THIRUVANANTHAPURAM. 4. GOPI, S/O. LATE KUPPAYYAN, KALIKONAM HOUSE, VATTAPPARA P.O., THIRUVANANTHAPURAM. 5. T.K. MADHAVAN, PROPRIETOR, INTERNATIONAL TAILORS, T.C.3/2022, PATTOM, THIRUVANANTHAPURAM. 6. DILEEPKUMAR, PROPRIETOR, CHELLAN COLD STORAGE, T.C.3/2023, PATTOM, THIRUVANANTHAPURAM. ...2/- AS.No. 573 of 2002() -2- 7. VIJAYAN, PROPRIETOR, JAYA PROVISIONS STORES, T.C.3/2024, PATTOM, THIRUVANANTHAPURAM. R1 BY ADVS. SRI.G.GOPALAKRISHNAN NAIR SRI.R.BINDU (SASTHAMANGALAM) R5 BY ADV. SRI. VISHNU S. CHEMPAZHANTH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...3/- AS.No. 573 of 2002() -3- ORDER ON C.M.P. NO. 7138/2002 & I.A. NO. 3338/2006 IN AS. NO. 573/2002 DISMISSED 13/12/2010 SD/- M.N. KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 573 OF 2002 = = = = = = = = = = = = = = = Dated this the 13th day of December , 2010. J U D G M E N T This appeal is preferred against the final decree passed in I.A.3122/98 in O.S.1048/91. Heard the counsel for both the sides. At the out set I may like to state that the court below has not really adverted its mind to the contentions of the appellant while passing the final decree. The suit is one for partition. As per the preliminary decree the plaintiff is allotted one out of five shares and the 4th defendant is entitled to 4 out of five shares. Now a Commissioner was appointed and the Commissioner had partitioned the property. The 4th defendant had filed objections to the Commissioner's plan and report stating that the mode of valuing the property and calculating the construction cost A.S. 573 OF 2002 -2- of the building and the value of the building are totally incorrect. There is also a prayer for setting aside the Commissioner's plan and report in that application. I had perused the Commissioner's plan and report. The Commissioner had not given any basis for how he has calculated the value of the building and how he is estimating the value of the same. The Commissioner himself has stated that the value of the building will be three lakhs. This is not the method by which things have to be done. Learned counsel for the appellant would submit before me that without giving an opportunity for evidence the trial Court took the matter for orders and pronounced the judgment. One thing is very clear from the judgment that the trial Court did not advert its mind at all to the objections raised by the parties. Therefore the A.S. 573 OF 2002 -3- matter requires reconsideration. I am informed that the building is not in existence now and there has been some acquisition with respect to the building. If it is acquired and compensation fixed it can be divided in the ratio stated in the preliminary decree. Otherwise parties be permitted to adduce additional evidence for the purpose of ascertaining the value. 2. Therefore the final decree passed by the trial Court is set aside and the matter is remitted back to the trial Court for passing a fresh final decree after permitting all parties to adduce evidence in support of the contentions raised by them and if necessary by remitting Commissioner's plan and report and then dispose of the matter in accordance with law. Parties are directed appear before the trial Court on A.S. 573 OF 2002 -4- 17.1.2011 and being an old matter steps be taken to complete the evidence and hearing as expeditiously as possible. M.N. KRISHNAN, JUDGE. ul/- A.S. 573 OF 2002 -5- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.573 2002 = = = = = = = = = = = J U D G M E N T 13th December, 2010.