IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 RFA.No. 184 of 2008() --------------------- AGAINST THE ORDER IN FDIA.2453/05 IN OS.269/2003 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANTS(S)/RESPONDENTS 1 TO 4/DEFENDANTS 1 TO 4: ------------------------------------------------------------------------------------- 1. PALATT RAVINDRAN S/O.MOOTHORAN,VAZHAVALAPPIL PARAMBA PANNIYANKARA AMSOM DESOM,KOZHIKODE TALUK. 2. PALATT SURENDRAN,S/O.MOOTHORAN, VAZHAVALAPPIL PARAMBA PANNIYANKARA AMSOM DESOM,KOZHIKODE TALUK. 3. PALATT SARSWATHY D/O.MOOTHORAN,VAZHAVALAPPIL PARAMBA PANNIYANKARA AMSOM DESOM,KOZHIKODE TALUK. 4. PALATT MEENAKSHI,D/O.MOOTHORAN, VAZHAVALAPPIL PARAMBA PANNIYANKARA AMSOM DESOM,KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/PETITIONER & RESPONDENTS 5 & 6/PLAINTIFF & DEFENDANTS 5 & 6: ---------------------------------------------------------------------------------------------- 1. PALATT SAMIKUTTY,S/O.PALATT KUTTAMAN VAHZAVALAPPIL PARAMBIL,PANNIYANKARA AMSOM DESOM KOZHIKODE TALUK. 2. PALLATT NAYADI @ P.M.KOYA S/O. KUTTAMAN,KOVILAKAM PARAMBU, PANNIYANKARA AMSOM DESOM KOZHIKODE TALUK. 3. PALLAT RAMADS,S/O. KUTTAMAN VAZHAVALAPPIL PARAMBA, PANNIYANKARA AMSOM DESOM KOZHIKODE TALUK. ADV. SMT.PRABHA R.MENON FOR R1 SRI.M.KRISHNAKUMAR FOR R1 SMT.PRABHA R.MENON FOR R2 P.CHALY FOR MEDIATOR THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 26/06/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 184 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June, 2009. JUDGMENT Bhavadasan, J, This appeal arises out of the final decree proceedings in O.S. 269 of 2003. 2. A preliminary decree was passed, which reads as follows: “1. Plaint A schedule shall be divided into 4 equal shares. 2. Plaintiff is entitled for one such share. 3. Defendants 1 to 4 together are entitled for one such share. 4. Defendant No.6 is entitled for one such share. 5. Defendants 1 to 4 are also entitled for the share of defendant No.5. They being the legal heirs of the assignee of defendant No.5 under Ext.B1 document. 6. Plaintiff is entitled for mesne profits for three years prior to the suit and future mesne profits till the date of allotment of separate shares. 7. Plaintiff is also entitled for costs.” R.F.A. 184/2008. 2 3. It appears that defendants 1 to 4 had challenged the preliminary decree in R.F.A. 492 of 2005 before this court. While that was pending, final decree was passed. No stay of the final decree proceedings was obtained by the appellants. 4. In the meanwhile, plaintiff filed I.A. 2453 of 2005 for passing the final decree. The main contention by defendants 1 to 4, who are the appellants herein was that since the appeal from the preliminary decree is pending, no final decree can be passed. However, the court below appointed a Commissioner, who submitted a report and plan. Even though an application was filed by defendants 1 to 4 to set aside the commission report, that was not accepted. Accepting the commission report, a final decree was passed. Accordingly, defendants 1 to 4 filed this appeal. 5. Learned counsel for the appellants pointed out that the court below was not justified in passing a final decree when an appeal from the preliminary decree was pending in this court. It is also pointed out that the defendants had raised substantial contentions against the passing of the final decree and the R.F.A. 184/2008. 3 commission report and sketch have not been properly considered. According to them, the commission report is totally unacceptable and that should not have been relied on by the court below to pass a final decree. According to them, the final decree is untenable on facts and in law. 6. Learned counsel appearing for the respondents in this appeal on the other hand points out that the contesting defendants had not paid court fee and have not sought separate allocation of property by metes and bounds. It was under those circumstances that defendants 1 to 4 were given one fourth share jointly. According to the learned counsel, the court below was perfectly justified in accepting the commission report in the circumstances of the case and there is no justification for interfering with the same. 7. The main grievance of the appellants appears to be that the house is seen to have set apart to the plaintiff in the suit. Learned counsel for the appellants pointed out that in fact defendants 1 to 4 were residing in the house and the result of the R.F.A. 184/2008. 4 final decree is that they will be thrown out. According to learned counsel for the appellant, plaintiff and her son are residing at Vadakara and under such circumstances, the house ought to have been allotted to defendants 1 to 4. 8. The fact remains that defendants did not pay court fee for having their separate shares allotted. May be that merely because of the said fact that final decree could not have been passed to their prejudice. The final decree passed reads as follows: “1. The decree schedule available for partition is A B C D E by its location, extent and measurements as shown in Ext.C2 plan. 2. Plot DEFG in Ext. C2 plan by its location, extent and measurements with structures, Chamayam and Kuzhikkoors therein allotted as the share of the petitioner/plaintiff. 3. The remaining extent of land excluding DEFG plot is that available for allotment of shares due to respondents 1 to 4 and 6. 4. For share value equalization the petitioner shall be liable to pay an amount of Rs.53,509.86 as owelty amount to the respondents. There shall be charge over R.F.A. 184/2008. 5 plot A in Ext.C2 plan allotted as the share of the petitioner till the owelty amount due is paid to the respondents or deposited in court. 5. Petitioner is entitled for the costs of the final decree proceedings. Petitioner shall produce value of NJ stamp to engross final decree within six months. 6. Petitioner is entitled for delivery of plot A with structures, improvements and kuzhikoors within its extent by the process of law. 7. Ext.C2 plan shall form part of the final decree.” 9. Commission report, which was accepted by the court below with the sketch was made available for perusal to this court. Commission report and the plan were marked as Exts.C1 to C5. The court below on going through the commission report was satisfied that the Commissioner had done effective and equitable partition of the property. The valuation adopted by the Commissioner seems to be just and proper. It is also noticed by the court below that the Commissioner had taken the assistance of an expert for valuation. Since the defendants had not paid separate court fee for allocation of their share, they were given R.F.A. 184/2008. 6 their share jointly. They are simply challenging the commission report on the ground that no separate allotment was shown in their favour. 10. On going through the report, it is seen that the partition has been effected almost in an equitable manner. The allocation and extent of the property is available from the commission report. 11. It is seen that inspite of best efforts on the part of the petitioner before the court below, the matter could not be settled due to the adamant attitude of the appellants. In fact, even before this court, the petitioner before the court below was prepared to pay the owelty amount due and also to forego the mesne profits, which would come nearly Rs.80,000/-. It is true that the house has been set apart to the plaintiff. It may be that the claim of the contesting defendants that they have no house to live may also be true. So is the case of the plaintiff also. 12. On going through the commission report, it is seen that the Commissioner was able to locate two houses. In the R.F.A. 184/2008. 7 Tarwad house, which bears No.30/1633, the commissioner found the plaintiff and respondents 1 and 2's were residing with their families. In the other house found nearby, it was noticed by the commissioner that the sixth defendant is residing there with his family. There is a claim that the said house was constructed by sixth defendant himself. Commissioner has mentioned the circumstances under which he was constrained to allot the house to the plaintiff. There is nothing to indicate that the said act has caused substantial prejudice to the defendants, since they have no case that the property set apart to them jointly is not sufficient. Plaintiff is prepared to pay the owelty amount to the defendants. 13. Since the appellants were not agreeable to any settlement at all and since they have not been able to show that the commission report is erroneous in any manner, the court below was perfectly justified in passing the final decree. 14. Before this court learned counsel appearing for the first respondent in this appeal points out that the first respondent is willing to pay Rs.Two Lakhs and prepared to forego the mesne R.F.A. 184/2008. 8 profits. That was not acceptable to the appellants. One should remember that this is in addition to the sum of Rs.53,000/- and odd to be paid by the plaintiff to the appellants as owelty. It is clear that the attempt is only to protract the proceedings. In such circumstances no interference is called for with the order of the court below. It is accordingly confirmed. The appeal is without merit and it is accordingly dismissed. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.