IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 RSA.No. 526 of 2009() --------------------- AS.90/1999 of SUB COURT, OTTAPPALAM OS.12/1984 of MUNSIFF COURT, OTTAPPALAM (IA.316/1997) .................... APPELLANTS ------------------------------ 1. LAKSHMIKUTTY, AGED 60 YEARS, D/O.VILAKKATHALA LATE AMMALU AMMA, THRIKKANGOD AMSOM, MANISSERY DESOM, OTTAPALAM TALUK. 2. KALYANIKUTTY, AGED 55 YEARS, D/O.VILAKKATHALA LATE AMMALU AMMA, THRIKKANGOD AMSOM, MANISSERY DESOM, OTTAPALAM TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON RESPONDENTS -------------------- 1. SARADHA, AGED 54 YEARS, D/O.VILAKKATHALA LATE PARUKUTTY AMMA, MUNDAKKOTTUKURUSSI AMSOM AND DESOM, OTTAPALAM TALUK. 2. GIRIJA, AGED 51 YEARS, D/O.VILAKKATHALA LATE PARUKUTTY AMMA, MUNDAKKOTTUKURUSSI AMSOM AND DESOM, OTTAPALAM TALUK. 3. RAJAN, AGED 46 YEARS, S/O.VILAKKATHALA LATE PARUKUTTY AMMA, MUNDAKKOTTUKURUSSI AMSOM AND DESOM, OTTAPALAM TALUK. 4. PRABHA.V., AGED 55 YEARS, W/O.LATE PADMANABHAN, VILAKKATHALA, THRIKKANGOD AMSOM, MANISSERY DESOM, OTTAPALAM TALUK. 5. PRAVITHA, AGED 26 YEARS, D/O.PRABHA.V., DEVARSHOLA, GOODALUR, NILAGIRI DVN. NO.1, TAMILNADU. 6. PRAJITHA, AGED 20 YEARS, D/O.PRABHA.V., DEVARSHOLA, GOODALUR, NILAGIRI DVN. NO.1, TAMILNADU. 7. PRASANTH, (MINOR 13 YEARS), REPRESENTED BY GUARDIAN MOTHER PRABHA.V., DEVARSHOLA, GOODALUR, NILAGIRI DVN. NO.1, TAMILNADU. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 &3 SRI.T.C.SURESH MENON FOR R1 &3 SRI.JIBU P THOMAS FOR R1 &3 SRI.P.S.APPU FOR R1 &3 SRI.A.R.NIMOD FOR R1 &3 SRI.C.A.ANOOP FOR R1 &3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 526 of 2009 ---------------------------------------- Dated this the 30th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 90/1999 on the file of the Subcourt, Ottappalm which arises from the order in I.A. No. 316/1997 in O.S. No. 12/1984 on the file of the Munsiff Court, Ottappalam. The dispute arises in the final decree proceedings. A preliminary decree was passed by the trial court by which plaint B schedule property is directed to be divided into 7 shares by metes and bounds. The plaintiffs got 3 shares and the defendants got 4 shares. In the final decree application filed by the plaintiffs, a commissioner was deputed and he filed a Commission report (Ext.C1) and plan (Ext.C2). The parties hereinafter referred to as plaintiffs and defendants as arrayed in the suit. 2. The Commissioner has allotted the northern portion of the property to the defendants along with residential building and southern portion is allotted to the plaintiffs. The total length of the property is 30 koles north-south and the width of the property is 24 koles east-west on the southern side and 25 ½ koles east-west on the northern side. The Commissioner has set apart the residential building to the defendants, which is situated almost in the middle portion of the property set apart to the defendants. The well is in the middle portion of the property set apart R.S.A. No. 526 of 2009 -2- to the plaintiffs. On the eastern as well as southern side of the entire property there is a pathway. 3. The defendants contended that the well should be set apart to them otherwise, there might be severe hardship to themselves and they cannot reside in the house situated in the portion of the property which is set apart to them. 4. On the other hand the plaintiffs submitted that the Commissioner has allotted the property in a way which is most equitable to the parties and that the property on the northern and western sides is set apart to them as suggested by the defendants, they cannot conveniently enjoy that property for the reason that the residential building belonged to the defendants will come very near to their property. 5. The trial court rightly held that if the property is divided into two longitudinally, definitely, the well, as well as the house can be set apart to the defendants .But the remaining property on the western side will remain as a strip of land having more length than width. It is held by the trial court that in such an event the defendants cannot conveniently use their share and therefore such a course cannot be adopted in this case. The trial court concluded that if the properties on the western side R.S.A. No. 526 of 2009 -3- as well as northern side are allotted to the plaintiffs , then the property will having an 'L' shape and cannot conveniently enjoyed by the plaintiffs. For all the above reasons the trial court declared that it is not possible to set apart the well to the share of the defendants The defendants/appellants re-agitated the contentions before the lower appellate court. The lower appellate court also agreed with the findings of the trial court and held that the division and allotment of the property is equitable, and reasonable. I am of the view that no other feasible division is possible considering the lie of the property. Since the division and allotment of the plaint schedule property is rightly made by the final decree court, which was confirmed in appeal by the lower appellate court, I find no sufficient grounds for interference under section 100 of the C.P.C. in this appeal. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal is devoid of any merit and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 526 of 2009 ---------------------------- JUDGMENT 30th July, 2009