IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 AS.No. 840 of 1997() -------------------- AGAINST THE ORDER DATED 05/03/1997 IN IA 815/95 IN OS.150/1993 of SUB COURT, KASARAGOD .................... APPELLANTS/RESPONDENTS 1 TO 6 IN IA: --------- 1. GANAPATHI BHAT, S/O.GOVINDAKUDLU VISHNU BHAT, RESIDING IN GOVINDAKUDLU, KUMBADAJE VILLAGE, KASARAGOD TALUK, P.O.KUMBADAJE. 2. VISHNU BHAT, S/O. -DO- -DO- 3. PURUSHOTHAMA BHAT, S/O. -DO- -DO- 4. RAMAKRISHNA SHARMA,S/O. -DO- -DO- 5. SUMATHI, D/O. -DO- AND W/O.P.MAHALINGA BHAT, RESIDING IN PATNADKA HOUSE, NIRCHAL VILLAGE, KASARAGOD TALUK, P.O.ULODI. 6. SAVITHRI, D/O. -DO- AND W/O. MAHALINGA BHAT, RESIDING IN MADWA HOUSE, KODOOR VILLAGE, KASARAGOD TALUK, P.O. KODYEMME. BY ADV. SRI.S.V.BALAKRISHNA IYER SMT.M.M.TEENA RESPONDENTS/RESPONDENTS 1 TO 16 IN AS, 7 TO 16 IN IA. ---------- 1. G. VENKATESHWARA BHAT, S/O.GOVINDAKUDLU VISHNU BHAT, RESIDING IN THAMBU RAMA NIVAS, KUMBADJE VILLAGE, KASARAGOD TALUK, P.O.YETHADKA. 2. HONNAMMA, W/O.MAHALINGA BHAT & D/O.VENKITESHWARA BHAT, RESIDING IN KALLARI HOUSE, MACHINA VILLAGE, BELTHANGADI TALUK, P.O.PANAKAJE. 3. SARASWATHI, W/O.GANGADHARA BHAT & D/O.VENKATESHWARA BHAT, RESIDING C/O.MAHESHWARI, SRISHALIA, VIDYANAGAR, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK, KASARAGOD POST. -2- A.S.NO.840/1997 4. SHANKARI, W/O.SUBRAYA BHAT & D/O.VENKATESHWARA BHAT, KEVALA HOUSE, KUNTUR VILLAGE, PUTTUR TALUK, P.O. PERABE, VIA. UPPINANGADI. 5. SHARADA, W/O. NARASIMHA BHAT & D/O.VENKATESHWARA BHAT, KANAVU HOUSE, P.O.PERVAJE, VIA. BELLOARE, SULLIYA TALUK. 6. S. VENKATRAMANA BHAT, S/O. K.V.GANAPATHI BHAT, RESIDING IN BEERANTHADKA HOUSE, KUNTUR VILLAGE, PUTTUR TALUK, P.O. PERABLE, V IA. UPPINANGADI. 7. K. GANAPATHI BHAT, S/O. -DO- -DO- 8. S.VISHNU BHAT, S/O. -DO- -DO- 9. K.KRISHNA BHAT, S/O. -DO- EMPLOYED IN IRON STEEL COMPANY, BHADRAVATHI P.O.BHADRAVATHI, KARNATAKA STATE. 10.K.SHAMA BHAT, S/O.-DO- RESIDING IN BEERANTHADKA HOUSE, KUNTUR VILLAGE, PUTTUR TALUK, P.O.PERABE, VIA,. UPPINANGADE. 11.D.R.GANESHA, S/O. RAMA BHAT, TTTB COURSE NO.15-64 NO.15. PARTY S.T.I., UPPALA, HYDERABAD 500 039. 12.D.R.SUBRAHMANYA BHAT, S/O.-DO- NO.675, 2ND MAIN, 11TH CROSS, GOKULAM III STAGE, MYSORE-570 002. 13.ISHWARI, W/O. THIMMANNA BHAT, RESIDING IN PADYANA HOUSE, KAROPADI VILLAGE, BANTWAL TALUK, P.O. KAROPADI. 14.GOWRI, W/O. D. RAMA BHAT, RESIDING IN PERIYA HOUSE, MUNNAD VILLAGE, KASARAGOD TALUK, P.O.MUNNAD. 15.SHANTHAKUMARI, W/O.K.VENKATRAMANA BHAT, RESIDING IN PARAMESHWARAMOOLE HOUSE, BADAGANNUR VILLAGE, PUTHUR TALUK, P.O.BADAGANNUR. 16.KALAVATHI, W/O. KRISHNA BHAT, RESIDING IN HITHILU MANE, KOKKADA VILLAGE, BELTHANGADI TALUK P.O., KOKKADE, D.K. R1 BY ADV. SRI.K.G.GOURI SANKAR RAI THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 04/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NOS.6100/97 & 676/98 IN A.S.NO.840/97 ------- Dismissed Sd/- P.R.RAMAN, JUDGE. 4/2/2008 Sd/- V.K.MOHANAN, JUDGE. P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- A.S.NO.840 OF 1997 -------------------------------- Dated this the 4th day of February, 2008 JUDGMENT Raman, J. This is an appeal against the final decree in a partition suit. Defendants 1 to 6 are the appellants. A preliminary decree was passed dividing plaint A schedule properties into 7 shares and allotted one share to the plaintiff and 6/7 shares to the defendants and it become final. Subsequently, I.A. No.815/95 was filed for passing of final decree. A Commissioner was appointed and he submitted report and plan (Exts.C1 and C2) as early as on 18/1/1996. On the objection of the defendants, the report was again remitted to the same Commissioner and a fresh report (Ext.C3) was filed on 13/9/1996. Again dissatisfied with the report, defendants 1 to 6 preferred a further application, (I.A.No.1110/96) to refer back to the report to the same Commissioner. That application was dismissed and final decree was passed accepting the commission report and plan, against which this appeal is filed. 2. We have heard the arguments of the learned counsel Sri S.V.Balakrishna Iyer appearing for the appellant and also the learned -2- A.S.No.840/1997 counsel Sri K.G. Gouri Shankar Rai appearing for the lst respondent. 3. Though several grounds are urged in the appeal memorandum, what was seriously pressed into service is the dispute related to the allotment of Item No. 1 of plaint A schedule. That is 19 cents of land in Sy.No.66/4A shown in blue shaded portion in the plan. Besides yet another portion in Sy.No.64/1B shown in blue shaded portion was also allotted, which was a dry land, in respect of which there is no dispute. The portion allotted in Sy.No.66/4A is a garden land. The objection raised is that the property has been divided and measured in the north-west direction and if the total extent of 19 cents is allotted by measuring in east-west direction, the defendants will also be given more access to the kumki land. The Commissioner has considered this aspect of the matter and answered the objection in Ext.C3. It is stated that if it is done so as suggested by the appellant, it will become a narrow strip. Further help by the Surveyor was also made available. We have considered this objection. As a matter of fact, the defendants have been allotted land in Sy. 66/4B1 also, which has got direct access to the land in Sy. 66/2B which is admittedly a kumki land. It is pointed out by the learned counsel Sri Gouri Shankar Rai appearing for the lst respondent that the big plot in Sy.No.58/1 on the western side adjacent to Sy.No.58/2A and 58/2B admittedly was allotted to the defendants. Therefore, there is no inequity -3- A.S.No.840/1997 in the matter of allotment of the shares to the parties and both sides have been given plots having excess to the kumki land. There is force in this contention. As a matter of fact, the defendants are entitled to 6/7 shares. So, the larger extent of the land has been allotted to the defendants. On a perusal of the plan it could be seen that the land already allotted to the defendants have got access to the kumki land. Likewise, they have also got access to the land in Sy.No.67/2B. But considering the totality of the circumstances, we do not find any illegality as such committed by the court below in accepting the Commission report in this regard. Further it is also submitted that based on the final decree passed, delivery was taken even before the appeal was filed and the parties are enjoying the respective shares. Therefore, it may not be in the interest of either side to disturb the peaceful enjoyment of the property of the parties for all these years. No interference as such is called for. In the result, we find no merit in the appeal. Accordingly, the appeal is dismissed. P.R.RAMAN, Judge. V.K.MOHANAN, Judge. kcv.