IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 RFA.No. 688 of 2010() --------------------- I.A.(FD)NO.1362/08 IN OS.17/2007 of SUB COURT, TIRUR .................... APPELLANT ----------------------------- MUHAMMEDKUTTY, AGED 66 YEARS, S/O.KOTTAMPARA MALIYEKKAL AALASSAN, TIRUR TALUK, VADAKKUMBRAM AMSOM, MAVANDIYOOR AMSOM, P.O.IDAYOOR NORTH, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S): ----------------------- 1. PATHUMMAKUTTY, D/O.YAHUTTY, AGED 53 YEARS, POTTARATH HOUSE, TIRUR TALUK, VADAKKUMBRAM AMSOM, MAVANDIYOOR DESOM, (NOW RESIDING AT PONNANI TALUK, TRIKKANAPURAM AMSOM, DESOM). 2. IYYATHUTTY UMMA, W/O.MUHAMMEDMMAD @ MAN, AGED 62 YEARS, TIRUVEGAPPURAM AMSOM, KAIPPURAM DESOM, P.O.KAIPPURAM, OTTAPPALAM TALUK. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 08/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- R.F.A.No.688 OF 2010 ------------------------------------------- Dated this the 8th day of November, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. One of the defendants in a suit for partition, where there are only three parties, is in appeal against the final decree. Pursuant to the preliminary decree, the plaintiff applied for passing of the final decree. None objected. This is followed by the issuance of a Commission. Following that, Exts.C3 and C4 report and plan were submitted by the Commissioner in view of earlier directions. The court below has recorded that none of the parties taken any oral evidence. There was also no objection filed to the report. This situation is not challenged even before us. In terms of Order XXVI Rule 14 (1) and (2), the procedure to be adopted is that when report is filed by Commissioner, the court, after hearing any objections that the parties may make to the report, shall confirm, vary or set aside it. When the court confirms or varies the report, it shall pass a decree in RFA.688/10 2 accordance with the same as confirmed or varied. In the case in hand, report and plan were not objected to. There was no evidence adduced. The Commissioner was not challenged. Obviously the court below is justified in passing the final decree. We are not impressed by the submission on behalf of the appellant that the Commissioner had made the report in chambers when the court below has recorded that the Commissioner has stated in his report that as directed by the court, he had again inspected the property and necessary changes were made as required. There was no objection filed to the Commissioner report and the Commissioner was not even summoned and examined. In this state of affairs, we find no merit in this appeal. The appeal fails. The same is dismissed in limine. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.08/11.