IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 RFA.No. 32 of 2008() -------------------- OS.67/1969 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/1ST RESPONDENT/1ST DEFENDANT: --------------------------------------------------------------------- CHANDRAMATHY AMMA, AGD 74 YEARS, D/O. LATE SANKARA PILLAI AND PARVATHY AMMA, RESIDING AT HOUSE NO.(OLD) XIX/517, KALOOR ROAD, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE. BY ADV. SRI.K.S.SAJEEV KUMAR SRI.LAJI SAM ZACHARIAH RESPONDENT(S): 2ND PETITIONER/2ND PLAINTIFF: ------------------------------------------------------------------------ DIVAKARAN NAIR, AGED 72 YEARS, S/O.LATE SANKARA PILLAI, NARAKKATT HOUSE, RESIDING AT KUMARI NIVAS, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK. ADV. SRI.T.B.THANKAPPAN SRI.T.T.HARIKUMAR THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 32 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of June, 2009. JUDGMENT Bhavadasan, J, The appeal is directed against the final decree in O.S. No. 67 of 1969 dated 23.1.2007. The first respondent before the court below is the appellant. The parties and facts are hereinafter referred to as they were available before the court below. 2. The suit was one for partition. A preliminary decree was passed on 17.1.1972. Thereafter petitioner filed I.A. 4095 of 1983 for the passing of the final decree. In that petition the trial court issued a commission to effect the partition of the plaint schedule property by metes and bounds. The commissioner filed a report. However that petition was dismissed for default. Thereafter I.A. 7096 of 1994 was filed for the passing of a final decree. That application was disposed of on 30.1.1996. The first respondent in that application, who is the appellant herein, took up the matter in appeal as A.S.611 of 1996 before this court. The appeal was allowed and the matter was remanded to the trial court R.F.A. 32/2008. 2 to be reconsidered. Thereafter Commissioner was appointed to have the property divided by metes and bounds and to submit a plan. Exts.C1 and C1(a) are the Commission report and plan. Accepting the commission report, final decree was passed in the following terms. “1. The petitioner/plaintiff's 2/3rd share is fixed as plot B in Ext.C1(a) plan having an extent of 8.154 cents with the building thereon. 2. One third share of the 1st defendant is fixed as plot A in Ext.C1(a) plan having an extent of 4.07 cents. 3. The petitioner/plaintiff is directed to pay an amount of Rs.1,50,000/- as owelty to the 1st defendant. 4. Ext.C1(a) plan will form part of the final decree. 5. For the purpose of engrossing final decree the value of the property is fixed as Rs.3,86,750/- the value of the lesser share. 6. The parties shall bear their respective costs.” 3. The first respondent in I.A. 7096 of 1994 assailed the final decree passed by the court below. The contentions taken are that the court below was not justified in accepting the Commission report and passing a final decree on that basis. Even though the first R.F.A. 32/2008. 3 respondent had taken serious objections to the Commission report and wanted to examine the Commissioner and had taken steps for the same, he was not permitted to do so. The allocation made by the Commissioner is unjust and unfair. It is also contended that the appellant was precluded from adducing evidence in support of her contention. 4. Learned counsel appearing for the contesting respondents on the other hand pointed out that there is no merit in any of the contentions taken by the appellant. Several opportunities were given to the appellant to adduce evidence and she failed to do so. As far as the objection to the commission report are concerned, the only objection of the appellant was that the valuation adopted by the Commissioner was not correct and fair. No other objection whatsoever was taken by the appellant before the court below. 5. On a reading of the final decree, it is seen that the claim of the appellant was that she was precluded from adducing evidence is not correct. The objection to the commission report, which was made available for perusal would indicate that the sole objection taken before R.F.A. 32/2008. 4 the court below was that the valuation adopted by the Commissioner was not correct. The objection was that the property situates very near to Veekshanam road and the price in that place is Rs.17,50,000/- per cent. The commissioner has omitted to note the important establishments in the locality and the valuation adopted therefore by the commissioner is incorrect. 6. The claim of the appellant therefore that she has taken objections to various aspects in the commission report does not appear to be correct at all. Before this court, it is also contended that there is a dispute regarding the inclusion of a pathway as a part of the share of the appellant. No such objection is seen taken by the appellant before the court below. Complaint was raised regarding the allocation of the residential building to the petitioner before the court below. Again this too is an objection raised at the appellate stage, which does not find a place in the objection filed before the court below. 7. Learned counsel appearing for the appellant then pointed out that she may be given an opportunity to raise her contentions again. R.F.A. 32/2008. 5 8. One needs to note that the suit is of the year 1969 and 40 years have elapsed. The appellant had several opportunities to raise her contentions. The first objection against Exts.C1 and C1(a) the only complaint of the appellant was that the valuation adopted by the Commissioner is incorrect. Even assuming it so, that has no bearing on the decision in the case. One must notice here that the owelty amount directed to be paid by the petitioner before the court below to the first respondent was in respect of the residential building. So that even assuming that the valuation of the property by the Commissioner is low, that has no impact on the final decree passed by the court below. 9. It is brought to the notice of this court that in fact after the evidence was closed and the matter was posted for hearing, the appellant had filed a petition to re-open the evidence. That was allowed and she was given an opportunity to adduce evidence. For reasons best known to the appellant, she chose not to adduce any evidence. The court below has also observed in paragraph 3 of its judgment that sufficient opportunities were given to the appellant to R.F.A. 32/2008. 6 examine the Commissioner. There was no attempt on the side of the appellant to do so. The court below has also observed that on going through the order sheet it could be seen that the appellant had availed of several opportunities to adduce evidence. 10. It must be noticed that the Commissioner had given notice of his visit to the parties. The court below has noticed that the petitioner before the court below did not press the claim for mesne profits. The court below has also noticed that considering the nature and lie of the property, the only practical way is to set apart a share of the first defendant only as shown in Ext.C1(a) plan. The Commissioner fixed the owelty at Rs.1,01,325/-. The court below on a consideration of the above aspects fixed the owelty amount at Rs.1,50,000/-. The court below has also chosen to increase the value of the building based on which the owelty amount was fixed. There is nothing to indicate that any injustice has been done to any of the parties by the court below while passing final decree. With the available materials and evidence the court below tried to allot the plots shown in the commission report amicably and equitably to the R.F.A. 32/2008. 7 respective parties. 11. No grounds are made out to interfere with the final decree passed by the court below. It has already been noticed that four decades have elapsed. Atleast now, it is necessary to put an end to the litigation and let the parties enjoy the fruits of the decree. This appeal is without merits and it is dismissed confirming the final decree passed by the court below. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.