IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 RSA.No. 858 of 2008() --------------------- AS.13/2002 of SUB COURT, MUVATTUPUZHA OS.510/1988 of MUNSIFF COURT,MUVATTUPUZHA (IA.2072 A/93) .................... APPELLANT MADHAVAN, S/O. KUNJAN, AGED 78 YEARS, THANNICHUVATTIL HOUSE, OLAPPURAM KARA, THIRUMARADY VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT(S): 1. KAUSALYA, D/O. KUNJAN, THANNICHUVATTIL HOUSE, OLIAPURAM KARA, THIRUMARADY VILLAGE. 2. THANNICHUVATTIL SREEDHARMA SASTHA KSHETRAM, OLIAPPURAM, REPRESENTED BY ITS KSHETRA BHARANA COMMITTEE, PRESIDENT KUNJAN, S/O. ACHUTHAN, PARAKANTHIL HOUSE, NORTH PALAKUZHA KARA, THIRUMARADY VILLAGE. 3. PURUSHOTHAMAN, S/O. DAMODARAN, CHITTAMADATHIL HOUSE, OLIAPURAM KARA, THIRUMARADY VILLAGE. 4. KRISHNAN, S/O. SANKU, CHELAPPURATHU HOUSE, OLIAPPURAM KARA, THIRUMARADY VILLAGE. 5. BIJU, S/O. KUNJAPPAN, CHELAPPURATH HOUSE, OLIAPPURAM KARA, THIRUMARADY VILLAGE. 6. RAJAPPAN, S/O. KUMARAN, KALLOKLICKAL HOUSE, KIZHAKOMBU KARA, THIRUMARADY VILLAGE. ADV. SRI.K.K.CHANDRAN PILLAI FOR R1 SRI.A.S.SAJUSH PAUL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.858 of 2008 = = = = = = = = = = = = = = Dated this the 29 th day of September, 2008 JUDGMENT The sole defendant in O.S.No.510 of 1988, who is the brother of the sole plaintiff in the said suit, challenges the final decree for partition passed in the said suit concurrently by the courts below. 2. The plaint consists of an A schedule as well as B schedule. Plaint B schedule property is 68 ½ cents of land and the plaint A schedule property consists of 1.16 Acres of land with a house thereon shown as comprised in Survey No.202/16 (35 cents), 202/17 (40 cents) and 202/15 (41cents). A preliminary decree was passed by the Munsiff's Court, Muvattupuzha on 30.03.1991 declaring the plaintiff's right over ½ share over the plaint schedule properties. The quantum of mesne profit was left open to be decided in the final decree proceedings. The plaintiff's brother who was the sole defendant was restrained by prohibitory injunction from committing waste in the plaint schedule properties or creating any document with respect to R.S.ANo.858 of 2008 2 the plaint schedule properties. The defendant filed A.S.No.49 of 1991 before the Sub court, Muvattupuzha challenging the preliminary decree and on 31.01.08 the preliminary decree was confirmed dismissing the appeal filed by him. Thereafter the plaintiff filed I.A.No.2072 A/ 1993 in O.S.No.510 of 1988 for the passing of a final decree. In the final decree proceedings, an Advocate Commissioner was appointed by the Munsiff's Court for effecting division of the properties by metes and bounds after measuring all the properties with the help of the Taluk Surveyor. The Commissioner filed Exts.C1 report dated 31.8.94, C1(a) and C1(b) survey plans and C2 report dated 30.2.95. Ext.C2 report was regarding the market value of the properties. The plaintiff filed an application to amend the plaint so as to include 112.69 cents of property comprised in survey No.203/2 which is a temple property instead of the property comprised in survey No.202/17. The said application was allowed in the light of the reports and plan submitted by the Advocate Commissioner. It is pertinent to note that the sole defendant in the suit who was the 1st respondent in the final decree proceedings did not raise any objection to the inclusion of the R.S.ANo.858 of 2008 3 temple property in the plaint schedule by way of an amendment. He did not challenge the order allowing the amendment of the plaint by the final decree Court which has given detailed reasons as to why the reports and plans submitted by the Commissioner were not liable to be set aside. In the meanwhile 5 persons got themselves impleaded in the final decree proceedings as Additional respondents 2 to 6 claiming that there is an ancient temple in the property and that they are the office bearers of the Committee which was managing the temple. They also filed I.A.No.1487/1996 to set aside Ext.C1(a),(b),C2 etc. Their contention was that the property over which the temple was situated was not liable to be partitioned and was wrongly included in the plaint schedule property description. As per the final judgment dated 22.2.01, the final decree court accepted the allotment of shares as well as the quantification of the mesne profits by the Advocate Commissioner and passed the final decree accordingly. Eventhough the final decree was challenged by the appellant by filing an appeal before the Sub Court, Muvattupuzha, that court dismissed the appeal confirming the findings of the final decree court. Hence this Second Appeal. R.S.ANo.858 of 2008 4 3. Eventhough the appellant/1st respondent/defendant has raised six questions as substantial questions of law at Pages 9 and 10 of the memorandum of appeal, I am not satisfied that those questions arise for determination in this second appeal. The attempt of the appellant is only to see that his sister who was the plaintiff is continuously kept away from enjoying the fruits of the decree which she has obtained after a relentless fight put up against her brother. This Second Appeal is accordingly dismissed in limine. Dated this the 29 th day of September, 2008. V. RAMKUMAR, JUDGE sj