IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 AS.No. 77 of 1997() ------------------- AGAINST THE ORDER DATED 29/07/1996 IN IA 682/92 IN OS.56/1982 of SUB COURT, KASARAGOD .................... APPELLANT(S)3RD AND 8TH DEFENDANTS: -------------- 1. BABU POOJARI, RESIDING AT KEREMOOLE OF MULIYAR VILLAGE, POST EDNEER, KASARGOD TALUK. 2. SMT.SARASWATHI, RESIDING AT -DO- -DO- BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA SMT.K.A.MAYA RESPONDENT(S)/PLAINTIFFS & DEFENDANTS 1, 2, 4, 6, 7 & 8 AND LR'S OF 5TH DEFENDANT: --------------- 1. SUBBA POOJARY, RESIDING AT KORAKOD OF TALANGARA VILLAGE, KASARGOD TALUK, POST KASARAGOD. 2. SMT.KALLYANI, RESIDING AT KUDLU OF KUDLU VILLAGE, POST RAMDASNAGAR, KASARAGOD TALUK. 3. KORAGA POOJARI, RESIDING AT KEREMOOLE OF MULIYAR VILLAGE, KASARAGOD TALUK, P.O.EDNEER. 4. SUBBU POOJARY, RESIDING AT KEREMOOLE OF MULIYAR VILLAGE, KASARAGOD TALUK, P.O.EDNEER. 5. SOMPPA POOJARY, RESIDING AT KEREMOOLE OF MULIYAR VILLAGE, POST EDNEER, KASARAGOD TALUK. 6. SMT. KAMALA, RESIDING AT KEREMOOLE OF MULIYAR VILLAGE, P.O. EDNEER, KASARAGOD TALUK. 7. SMT.LAXMI, RESIDING AT KUDLU OF KUDLU VILLAGE, P.O.RAMDASNAGAR. AS NO.77/1997 2 8. SANJEEVA, RESIDING AT KALIYEER IN VORKADY VILLAGE AND P.O., KASARAGOD TALUK. 9. LEELA, RESIDING AT KALIYEER IN VORKADY VILLAGE AND P.O., KASARAGOD TALUK. 10. CHANDRAVATHI, RESIDING AT KALIYEER IN VORKADY VILLAGE AND P.O., KASARAGOD TALUK. 11. MALATHI, RESIDING AT KALIYEER IN VORKADY VILLAGE AND P.O., KASARAGOD TALUK. 12. GEETHA, RESIDING AT KALIYEER IN VORKADY VILLAGE AND P.O., KASARAGOD TALUK. ADV. SRI.K.G.GOURI SANKAR RAI FOR R1 TO R4 & R6 SRI.P.SHRIHARI FOR R5 & R7 TO 12 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- A.S.No.77 of 1997 -------------------------------------- Dated this the 9th day of February, 2009. JUDGMENT Respondents 2 and 5 in the application for final decree are aggrieved by the final decree and have preferred this appeal. 2. Heard both sides. 3. The objections raised by the appellants to the final decree are that the measurements made by the advocate commissioner are not correct, some items though measured more the extent reported by the advocate commissioner is low and the extent of share allotted to the first appellant is not correct as he is entitled to get 34 cents but what is allotted to him is less. Another objection taken is that appellants ought to have been allotted a different plot for their convenient enjoyment than item No.2 in share C and no provision is made for worship of family deity (viniyogas) and hence some portion may be set apart for that purpose. The further objections are that the cow shed situated in the property has been ignored by the advocate commissioner in the matter of valuation and that the income derived from the share allotted to the appellants is shown excessive. Learned counsel for appellants contended that detailed objections were raised by the appellants to Ext.C1, report in the above lines and to consider those objections, the court had remitted Ext.C1 to the advocate commissioner. But, the objections were not considered instead, on the AS No.77/1997 2 specious ground that the surveyor and and village assistant were not available for further measurement, the warrant was returned. According to the learned counsel, court below having remitted Ext.C1 to the commissioner, it was not open to him to refuse to measure the properties for the reason of absence of the surveyor or village assistant. Learned counsel therefore, prayed that the final decree may be set aside and the commissioner may be directed to comply with the directions issued by the court below while remitting Ext.C1. Learned counsel for contesting respondents contended that there is no substance in the objections raised by the appellants and that apart from merely raising some objections for the sake of objection, no attempt was made to substantiate that. It is also contended that there is no mistake in the measurement of the properties in Ext.C1 and the conduct of the appellants disentitled them for any change of the plots. 4. I have gone through Ext.C1, the first report submitted by the advocate commissioner, objections raised by the appellants and Ext.C5, further report submitted by the advocate commissioner. It is true that in the lines contended by the learned counsel for appellants, objections were raised to Ext.C1 and the court below directed Ext.C1 to be remitted to the advocate commissioner for further report. In Ext.C5, the advocate commissioner has stated in answer to objection Nos.3 and 5 that further measurement could not be effected for want of surveyor and the village assistant. Prima facie it may appear that the advocate commissioner has not complied with the direction AS No.77/1997 3 issued by the court below while remitting Ext.C1. But, it is required to consider whether a further remittance of Ext.C1 to the advocate commissioner is required, after 26 years of institution of the suit for partition. 5. In Ext.C5, though the advocate commissioner has reported that he could not again measure the properties as the surveyor and village assistant were not available, he has stated in answer to objection No.2 that measurements had been correctly taken at the time of Ext.C1 which meant that it was not necessary to take a further measurement. It is true that court below had remitted Ext.C1 report to the advocate commissioner but, it is pertinent to note that it was not substantiated before that court before remitting Ext.C1 that there was any such mistake in the measurement. Concededly, appellants made no efforts at any stage to adduce evidence to substantiate their objection. So far as it is not shown that the measurements taken by the advocate commissioner while preparing Ext.C1 report are wrong, I do not think it necessary at this stage to direct that Exts.C1 and C5 be remitted to the advocate commissioner which has only the effect of prolonging the already prolonged litigation. 6. The other main objection raised by the appellants at the time of hearing is that they ought to have been given a different plot than item No. 2 in share C. In Ext.C5, advocate commissioner reported in answer to objection No.3 that during the time of the first inspection (which resulted in Ext.C1) the first appellant had not raised any objection to the allotment of item No.2 in share AS No.77/1997 4 C. It is also reported by the advocate commissioner that more extent was allotted for the share of the first appellant which takes care of the objection raised by the appellants. 7. I have stated that the appellants did not adduce any evidence to substantiate their objections. In these circumstances, I am satisfied that it is not necessary at this stage to set aside the final decree and remit the case. 8. No other point is raised for consideration. Appeal fails. It is dismissed. C.M.P.No.730 of 1997 will stand dismissed. THOMAS P.JOSEPH, Judge. cks AS No.77/1997 5 Thomas P.Joseph, J. A.S.No.77 of 1997 JUDGMENT 9th February, 2009.