IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 RSA.No. 590 of 2008 --------------------------------- AS.251/2004 of DISTRICT COURT, THALASSERY OS.453/1997 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANT/APPELLANT/1ST DEFENDANT: PUNCHAKKARA KUNHIKRISHNAN, S/O.DAMU, AGED 48 YEARS, TAILOR, MANANTHERI AMSOM, CHITTARIPARAMBU DESOM, THALASSERI TALUK. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENTS/RESPONDENTS/PLAINTIFFS & D2: 1. PUNCHAKKARA NARAYANI, W/O.DAMU, AGED 65 YEARS, NO OCCUPATION, KOLAYAD AMSOM AND DESOM, P.O. KOLAYAD. 2. PUNCHAKKARA SUMATHI, D/O.NARAYANI, AGED 46 YEARS, DO. DO. 3. PUNCHAKKARA SARATH CHANDRAN, S/O.NARAYANI, AGED 43 YEARS, DO.DO. 4. PUNCHAKKARA SUJATHA, D/O.NARAYANI, AGED 39 YEARS, DO.DO. 5. PUNCHAKKARA MAHINA MADHAVAN, D/O.NARAYANI, AGED 37, NO OCCUPATION, DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No.590 of 2008 --------------------------- JUDGMENT The first defendant in O.S.No.453/97 on the file of the Munsiff's Court, Kuthuparamba has come up with this Regular Second Appeal assailing the final decree passed in the said suit, which was upheld by the first appellate court. 2. The brief facts necessary for consideration of this appeal can be narrated as follows: The plaintiffs instituted the suit for a decree of partition and separate possession of their 5/7 share in the scheduled property, describing it as having an extent of 54 cents. Defendants 1 and 2 are the son and daughter of the first plaintiff. They were entitled to 1/7 share each. The claim of the plaintiffs was upheld by the trial court decree, whereby, the scheduled property was allowed to be partitioned by metes and bounds into seven equal shares and for allotment of five such shares to the plaintiffs, one such share to the first RSA 590/08 2 defendant and one such share to the second defendant. The trial court decree also directed that the house in the property shall be reserved to the share of the first defendant, but after valuation. The trial court decree further directed that the first defendant shall pay the share of profits to the plaintiffs and to the second defendant from the date of suit and the quantum was deferred to be decided in the final decree proceedings. This, obviously, means that the appellant/first defendant was in possession and enjoyment of the entire property on behalf of the co-owners. 3. In the final decree proceedings, Commissioner was deputed to effect division by metes and bounds of the scheduled property and he submitted Exhibit C1 report, Exhibit C2 plan, Exhibit C3 valuation account and Exhibit C4 share list. The first defendant objected to the Commissioner's report. As per order in I.A.No. RSA 590/08 3 2481/02, the report was remitted back to the Commissioner for filing a fresh report, considering the objection and the counter thereto. I.A.No. 2481/02 and the order passed thereon are not produced nor even submitted for perusal. The fresh report submitted by the Commissioner on 7.1.2003, which is produced along with the final decree, shows that as per the objection, he has excluded the house in B plot and value of land alone is shown in the report and that since the value of the house is excluded, necessary changes are made in general valuation account of B plot and the total value of estate, value of one share and value of non judicial stamps and a fresh share list also is submitted. It is also seen stated in the report that since both the parties want to exclude the mesne profit, the mesne profit account is excluded from the report. This means, the first defendant, who was in occupation of the scheduled property, was being given the benefit of having the house RSA 590/08 4 allotted to his share without valuation and the claim for mesne profits was also given up in his favour by his mother, brother and sisters, who are plaintiffs 1, 2, 4 and 5 and the second defendant/ respondents 1 to 5 herein. 4. It is vehemently contended before me by the learned counsel for the appellant/first defendant, not being satisfied with the favours shown to him by his mother, brother and sisters, that the Commissioner has shown the extent of property as having only 47¼ cents, whereas, the extent of the scheduled property shown is 54 cents with side measurements and that the property should have been measured as per the links measurements given in the schedule to the plaint and 54 cents should have been partitioned and not 47¼ cents. 5. It is worthy to note that the plaintiffs and the second defendant had no case that the entire property is not measured and divided by the Commissioner. Even the appellant/first defendant RSA 590/08 5 had no case that on any side of the scheduled property, any extent is left out. He also does not say that he has pointed out to the Commissioner the exact boundaries, but the Commissioner has refused to take that into account. His only objection is that the property has to be 54 cents because the scheduled property is described as 54 cents with side measurements. The Commissioner cannot, while effecting division, plot out the properties which are not in possession of the sharers and allow a decree being passed accordingly. The appellant/ first defendant has miserably failed to establish that any portion of the scheduled property is left out of measurement. He should have stated specifically as to whether the Commissioner has left out any extent, especially when, he was the one in possession of the entire scheduled property and he knew the boundaries better than the plaintiffs and the second defendant. To substantiate the objection filed by the appellant/ RSA 590/08 6 first defendant to the second Commissioner's report and plan, which are Exhibits C1 and C2 made part of the final decree, he has not even examined the Commissioner or got himself examined. In the circumstances, it is evident that attempt of the appellant/first defendant is only to protract the litigation to the detriment of other sharers, who are his own mother, sisters and brother and not because there is any merit in his objection even to his own knowledge. There is absolutely no merit at all in this Regular Second Appeal and it is ill- conceived. There is no question of law and much less, any substantial question of law or even equity that can be said to exist in this appeal. This appeal is devoid of merit and is dismissed but without costs, as the appeal is dismissed in limine without notice to the respondents. 11th July, 2008 (K.P.Balachandran, Judge) tkv