IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 RSA.No. 1021 of 2008() ---------------------- OS.208/1978 OF MUNSIFF COURT, VAIKOM A.S. 237/2001 OF DISTRICT COURT, KOTTAYAM .................... APPELLANT/ APPELLANT/APPELLANT --------------------------------------- MINIYAN SIDHIQUE, THAYYADAYIL HOUSE IRUMPOOZHIKKARA MURI,VADAKEMURI VILLAGE VAIKOM TALUK. BY ADV. SRI.M.NARENDRA KUMAR RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS ------------------------------------------------------------------------------------- 1. PARIYATHKUTTY S/O. MUHAMMED KUNJU, RESIDING AT KODALICHIRAYIL, ETTOKANDATHIL VEETTIL,KIZHAKKUMCHERI, VAIKOM MURI, NADUVILE VILLAGE,VAIKOM TALUK. 2. ASIYOUMMA, D/O.MAMMU,ETTAKANDATHIL,VALLKOM MURI, NADUVILA VILLAGE,(DIED) (IST DEFENDANT) 3. SHAREEFA UMMA, D/O. MUHAMMED KUNJU THAIPARAMBU HOUSE, SAKARIYA BASSAR LJANATH WARD, ALAPPUZHA SOUTH (2ND DEFENDANT) 4. MUHAMMED PARIYATHU, PUTHENPURAYIL FROM VANCHITHARA, VELLOOR KARA KOTTAYAM VILLAGE, (DIED) (3RD DEFENDANT) 5. NABEESA UMMA, VANCHITHARAYIL PUTHENPURAYIL HOUSE, VELLOOR KARA KOTTAYAM -3 (5TH DEFENDANT) 6. SYNABA SHAHURDEEN, KOLATH PUTHENPURAYIL HOUSE, PUNNAPRA P.O. ALAPPUZHA (6TH DEFENDANT) 7. MUHAMMADALI PAREETH VANCHITHARA PUTHENPURAYIL HOUSE, VELLOOR KARA,KOTTAYAM-3 (7TH DEFENDANT) 8. JAMEELA, W/O. NOWSHAD,PLANATHARA HOUSE MADHUMULA, VAZHAPPALLY P.O. CHANGANACHERRY (8TH DEFENDANT) 9. YUSAFF PAREETH, VANCHITHARAYIL PUTHENPURAYIL HOUSE, VELLOOR KARA KOTTAYAM -3 (9TH DEFENDANT) ADV. SRI.K.R.KURUP FOR CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. 369/2009 IN R.S.A. NO.1021 OF 2008 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 22.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 1021 of 2008 ---------------------------------------- Dated this the 22nd day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. 237/2001 on the file of the District Court, Kottayam which arises from the decree and judgment in O.S. No. 208/1978 on the file of the Munsiff Court, Vaikom. The suit is for partition. The trail court passed a final decree in terms of the preliminary decree and the final decree was confirmed in appeal by the lower appellate court. Being aggrieved, the 4th defendant in the Suit filed the Second Appeal. The parties hereinafter referred to as plaintiff and defendants as arrayed in the Suit. 2. The dispute arises from the final decree proceedings The plaintiff filed I.A No. 1069/1987 for passing the final decree. Ext.C1 is the report and Ext.C1(a) is the sketch produced by the Advocate Commissioner. the Commissioner was examined as PW1. Before the trial court the 4th defendant interalia contended that he is entitled to value of improvements that the quantum of mesne profits assessed, is excessive and therefore liable to be corrected. The trial court examined the said questions and held that being a co-owner, the 4th defendant is not entitled to any value of improvements, that the assessment of mesne profits made by the Commissioner is just and fair. In the said circumstances the trial court passed a final decree in terms of the preliminary decree. R.S.A. No. 1021 of 2008 -2- 3. Before the lower appellate court, the very same questions were agitated by the 4th defendant The lower appellate court also examined the questions on the basis of evidence on record. The lower appellate court , concluded that the allotment and division of shares, the assessment of mesne profits and the decision to decline the value of improvements to the 4th defendant by the trial court are just and fair and the objections raised against the final decree is untenable. I have also perused the order and judgment respectively passed by the courts below. I find that the findings arrived at by the courts below are solely based on the facts, evidence and circumstances. It is not possible to take a different view from the views taken by the courts below. There is no scope for invoking Section 100 of the C.P.C . No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 1021 of 2008 ---------------------------- JUDGMENT 22nd June, 2009