IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 RSA.No. 614 of 2011() --------------------- AS.177/2004 of SUB COURT,NEYYATTINKARA OS.859/1987 of PRINCIPLE MUNSIFF COURT,NEYYATTINKARA .................... APPELLANTS/APPELLANTS – DEFENDANTS 1&2 1. DEVANESAN,S/O.DEVADASAN NADAR, SHAJI BHAVAN,KAIVANKALA,KUNNATHUKAL VILLAGE, ELLUVILA PO, NEYYATTINKARA,TRIVANDRUM DISTRICT. 2. ROSSLY LILLY BAI,W/O.DEVANESAN, RESIDING AT -DO- DO- BY ADV. SRI.S.JAMES VINCENT RESPONDENTS/RESPONDENTS 2 TO 11 & 13 TO 16 – Lrs OF DECEASED PLAINTIFFS 1&2 & ADDITIONAL PLAINTIFFS 7 TO 10 1. GNANAMONY MERCY,VADAKKETHATTU PUTHEN VEEDU,KIZHAKKUMKARA,KUNNATHUKAL VILLAGE,ELLUVILA PO,NEYYATTINKARA,TRIVANDRUM DISTRICT. 2. GNANAMONY,PHILOMINA, OF DO. 3. THOMAS FRANCIS , OF DO. 4. GNANAMONY NIRMALA,DO. 5. SAROJINI,W/O.THOMAS GEORGE, ONAMKULAM VEEDU,MALACKODE,EDAKKODU DESOM,ARUMANA, KANYAKUMARI DISTRICT,TAMILNADU. 6. THOMAS GEORGE JOY OF DO. 7. THOMAS GEORGE JOHNY OF DO. RSA.No. 614 of 2011 8. SAROJINI JOLLY OF DO. 9. THANKAMMA SALOMI,THETTIVILA VEEDU, ARUMANA VILLAGE,K.K.DISTRICT,TAMIL NADU. 10. DIVAKARAN ALIAS PATHROSE, S/O.GEORGE DO. 11. ENOSE NESAN,KAIVANKALA PUTHEN VEEDU, THOLICKAL KIZHAKKUMKARA,KUNNATHUKAL VILLAGE, ELLUVILA PO, NEYYATTINKARA,TRIVANDRUM DISTRICT. 12. SUDHA,W/O.GOPI,VINOD BHAVAN, PATHRISSERI,MANINADU,KUNNATHUKAL VILLAGE, NEYYATTINKARA TALUK. 13. VINOD,S/O.GOPI, DO. 14. SHABEER,S/O.GOPI,DO. ADV. SRI.G.S.REGHUNATH FOR CAVATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dmb RSA.No. 614 of 2011 I.A.NO.1369 OF 2011 IN RSA.NO.614 OF 2011 DISMISSED Sd/- M.SASIDHARAN NAMBIAR JUDGE 29.6.2011 //TRUE COPY// P.A. TO JUDGE dmb M.SASIDHARAN NAMBIAR, J. ---------------------------------------- R.S.A.No. 614 OF 2011 -------------------------------------------------- Dated this the 29th day of June, 2011 JUDGMENT Defendants 1 and 2 in O.S.No.859 of 1987 on the file of the Principal Munsiff Court, Neyyatinkara are the appellants. Plaintiff 1, and 3 to 10 are respondents 1 to 10 and the other respondents, the other defendants. Pursuant to the preliminary decree for partition, I.A.No.906 of 2001 was filed by the plaintiffs for division of the property and allotment of the share. During the pendency of the final decree plaintiffs 7 to 10 were impleaded as legal heirs of the deceased. The learned Munsiff appointed a Commission to divide the property in accordance with the preliminary decree. The Commissioner so appointed, divided the properties and submitted Exts.C1 and C2 report and plan. The learned Munsiff based on the division, passed final decree allotting plot OPQV to the plaintiff and plot QRSTUV to the sixth defendant and plot ABPO to the first defendant. Appellants challenged the judgment before the Sub Court, Neyyattinkara in A.S.No.177 of 2004. The learned Sub Judge R.S.A.No. 614 OF 2011 2 confirming the allotment made by the learned Munsiff, dismissed the appeal. It is challenged the second appeal. 2. The learned counsel appearing for the appellants and the learned counsel appearing for the respondents were heard. The argument of the learned counsel appearing for the appellants is that the Commissioner has divided the property, available for partition into three plots and the northern plot was alloted to the first defendant, middle plot to the plaintiff and the southern plot to the sixth defendant and by such allotment, the plot allotted to the plaintiff is on the north and the other properties in the possession of the appellant lies on the west and south on the plots allotted to the plaintiff and if the plot allotted to the plaintiff is shifted to the north and appellant is allotted to the southern plot, it would be most convenient and hence the allotment made by the learned Munsiff as confirmed by the learned Sub Judge is to be modified. Relying on the decision of the Hon'ble Supreme Court in Union Bank of India v. Naresh Kumar and others (1996 (6) SCC 660), the learned counsel argued that even though the appellant had not raised the said R.S.A.No. 614 OF 2011 3 plea before the trial court, in the interest of justice the allotment is to be modified. 3. The learned counsel appearing for the third respondent made available copy of the objection filed by the appellant to the report of the Commissioner before the trial court. In the objection, appellants have no case that the allotment made by the Commissioner is not convenient or the plot allotted to the appellants is to be shifted towards the south. The learned counsel appearing for the appellant vehemently argued that the appellants are in possession of 20 cents of property which lies to the south of TU line and to the west of OVU line and by allotting OPBA plot, appellant was denied direct access from the remaining property and it has resulted in fragmentation of the properties and therefore the allotment is to be modified. 4. Ext.C2 plan shows that the public road proceeds from north to south. It is the eastern boundary of the plots allotted to the plaintiff, the first defendant and the sixth defendant. The eastern boundary of the property which lies to the south of TU R.S.A.No. 614 OF 2011 4 line is also the same road. Therefore, it cannot be said that there is no direct access available to plot OPBA from the remaining property. When the appellants did not raise any objection to the allotment on the basis of convenience or lesser inconvenience, appellants cannot raise the plea for the first time in the second appeal. The decision of the Apex Court in Naresh Kumar's case (supra) has no application to fact situation in this case. In the said circumstances, I find no substantial questions of law involved in the appeal. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE dmb