IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 RSA.No. 864 of 2011() --------------------- AS.162/2008 of ADDL.SUB COURT, IRINJALAKUDA OS.374/2007 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT/APPELLANT/7TH DEFENDANT : ------------------------------ SASI @ SAIKUMAR, AGED 46, S/O. PAIKKAT VALIYAPARAMBIL KAMALAKSHI AMMA, KODUNGUKULAM AMSOM DESOM, METHALA VILLAGE, KODUGNALLUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI K PARIYARATH RESPONDENT(S): RESPONDENTS -------------------------- 1. GEETHA, D/O. PAIKKATT VALIYAPARAMBIL KAMALAKSHI AMMA, METHALA VILLAGE DESOM, KODNUNGALLUR TALUK, PRESENT ADDRESS GEETHA SANTHASREE, CHANDAPADI, PONNANI TALUK, PONNANI P.O. MALAPPURAM DISTRICT- 679577. 2. KAMALAKSHI AMMA, D/O. PAIKKAT VALIYAPARAMBIL LASHMIKUTTY AMMA, METHALA VILLAGE DESOM, KODNUNGALLUR TALUK, PRESENT ADDRESS GEETHA SANTHASREE, CHANDAPADI, PONNANI TALUK,PONNANI P.O. MALAPPURAM DISTRICT- 679577. 3. SANTHAKUMARI, D/O. PAIKKAT VALIYAPARAMBIL KAMALAKSHY AMMA, METHALA VILLAGE DESOM, KODNUNGALLUR TALUK, PRESENT ADDRESS GEETHA SANTHASREE, CHANDAPADI, PONNANI TALUK,PONNANI P.O. MALAPPURAM DISTRICT- 679577. 4. RADHALAKSHMI, D/O.PAIKKAT VALIYAPARAMBIL KAMALAKSHY AMMA, METHALA VILLAGE DESOM, KODNUNGALLUR TALUK, PRESENT ADDRESS RADHALAKSHMI,W/O. BALAKRISHNAN, VALIYAPARAMBIL HOUSE, T K S PURAM, KODUNGALLUR P.O 680664. 5. CHANDRIKA, D/O. PAIKKAT VALIAYAPARAMBIL KAMALAKSHY AMMA, METHALA VILLAGE DESO, KODUNGALLUR TALUK, PRESENT ADDRESS, CHANDRIKA, SANTHASREE, CHANDAPADI, PONNANI TALUK, PONNANI, P.O.MALAPPURAM DISTRICT. PIN - 679577. 6. JAYALAKSHMI, D/O. PAIKKATT VALIYAPARAMBIL KAMALAKSHI AMMA, METHALA VILLAGE DESOM, KODUNGALLUR TALUK, PRESENT ADDRESS JAYALAKSHMI, SANTHASREE, CHANDAPADI, PONNANI TALUK, PONNANI P.O. MALAPPURAM DISTRICT - 679577. 7. RAVEENDRAN, S/O. PAIKKAT VALIYAPARAMBIL KAMALAKSHMI AMMA, METHALA VILLAGE DESOM, KODUNGALLUR P.O., KODUNGALLUR - 680664. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No. 864 of 2011 ............................................ DATED THIS THE 14th DAY OF OCTOBER, 2011 JUDGMENT Seventh defendant in O.S.374 of 2007 on the file of Munsiff Court, Kodungallur is the appellant. First respondent is the plaintiff and other respondents, other defendants in the suit. Suit was filed for partition. The appellant contended that though the plaint schedule property is available for partition, he constructed a house in the plaint schedule property with his own funds and that house is to be excluded from partition. Learned Munsiff found that it is established that appellant built a new house in the plaint schedule property and it stands within five cents and as appellant is entitled to six cents of the property as his share, no prejudice will be caused if that portion where the house is built is alloted to the appellant and therefore subject to the said reservation, a preliminary decree was passed. Appellant, along with 6th defendant filed A.S.162 of 2008 challenging the preliminary decree contending that at the time of partition, house shall not be valued and it is to be alloted to the appellant. RSA 864/2011 2 Learned Sub Judge on re-appreciation of the materials including evidence found that when the building was admittedly constructed by the appellant, the building cannot be valued and without valuing it is to be alloted to the appellant as far as it is feasible. The modified final decree is being challenged in the appeal. 2. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that house itself is standing in about five cents of the property and the building is in the middle of a property, and in such circumstances, when trial court found that the building is to be excluded from partition, first appellate court was justified in the appeal filed by the appellant to restrict the excluded extent of the property against the interest of the appellant and therefore the preliminary decree warrants modification. 3. On hearing the learned counsel, I do not find any substantial question of law is involved in the appeal. Appellant is admittedly one of the co-owners who is only entitled to 1/8 share. Even if the appellant constructed a building in a co- ownership property, when that construction was not with the RSA 864/2011 3 consent of all the shareholders, in law, he is not entitled to contend that the said particular item of the property is to be alloted to him. But in equity, when admittedly one of the sharers constructed a building out of his own funds, as far as possible and feasible, that property where the building stands, is to be alloted to that sharer, but subject to feasibility. First appellate court only observed the same. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk