IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 RSA.No. 842 of 2008(A) --------------------- AS.280/2006 of DISTRICT COURT,KOZHIKODE OS.477/1992 of PRINCIPAL MUNSIFF'S,KOZHIKODE-I (FDIA 827/03) .................... APPELLANT/APPELLANT/4TH RESPONDENT/5TH DEFENDANT:- --------------------------------------------------------------------- KARTHIAYANI, AGED 60, D/O CHANDU, EDAKKAD PALAKKADA, KACHERI AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS SRI.SRINATH GIRISH RESPONDENT/RESPONDENTS/PETITIONERS/RESPONDENTS 1 to3 &5 to 13/PLAINTIFFS/DEFENDANTS 1 TO 4 AND 7 TO 12 --------------- 1. SREEMATHI, AGED 55, D/O KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM, KOZHIKODE TALUK. 2. PREMA, AGED 50, D/O KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM, KOZHIKODE TALUK. 3. SITA, AGED 47, D/O KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM,KOZHIKODE TALUK. 4. SOBHA, AGED 45, D/O KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM,KOZHIKODE TALUK. 5. PRABHAKARAN, AGED 41, S/O KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM,KOZHIKODE TALUK. R.S.A.NO. 842/2008 : 2: 6. DINESAN, AGED 40, S/O KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM, KOZHIKODE TALUK 7. JAYAN, AGED 39, S/O KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM, KOZHIKODE TALUK 8. THANYYILKANDATHIL RAMANKUTTY,AGED 80, S/O CHANDU, EDAKKAD PALAKKADA, KACHERI AMSOM DESOM KOZHIKODE TALUK. 9. NARAYANAN, AGED 76, S/O CHANDU, EDAKKAD PALAKKADA, KACHERI AMSOM DESOM KOZHIKODE TALUK. 10. MALU, AGED 70, D/O CHANDU, EDAKKAD PALAKKADA, KACHERI AMSOM DESOM KOZHIKODE TALUK. 11. KATTUNGAL PURUSHOTTAMAN, AGED 56, S/O RAMANKUTTY, ELATHUR AMSOM DESOM, KOZHIKODE TALUK. 12. BALAN, AGED 45, D/O THAYYILKANDATHIL CHOYIKUTTY, EDAKKAD PALAKKADA, KACHERI AMSOM DESOM, KOZHIKODE TALUK. 13. SULOCHANA, AGED 40, D/O THAYYILAKANDATHIL CHOYIKUTTY, EDAKKAD PALAKKADA, KACHERI AMSOM DESOM, KOZHIKODE TALUK. 14. KRISHNANKUTTY, AGED 37, S/O THAYYILAKANDATHIL CHOYIKUTTY, EDAKKAD PALAKKADA, KACHERI AMSOM DESOM, KOZHIKODE TALUK. 15. SUNITHA, AGED 42, D/O.THAYYILAKANDATHIL CHOYIKUTTY, EDAKKAD PALAKKADA, KACHERI AMSOM DESOM, KOZHIKODE TALUK. R.S.A.NO. 842/2008 : 3: 16. RATNA KUMAR, AGED 30, S/O THAYYILKANDATHIL CHOYIKUTTY, EDAKAD PALAKKADA, KACHERI AMSOM DESOM, KOZHIKODE TALUK. 17. SUBAJA, AGED 32, W/O EDOTHUPARAMBATH BABU, MOKAVOOR AMSOM DESOM, KOZHIKODE TALUK, 18. DRUSYA, AGED 11 (MINOR), REPRESENTED BY GUARDIAN AND MOTHER SUBAJA, MOKAVOOR AMSOM DESOM, KOZHIKODE TALUK. 19. DRUPIN LAL, AGED 8 (MINOR), REPRESENTED BY GUARDIAN AND MOTHER SUBAJA, MOKAVOOR AMSOM DESOM, KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 842 of 2008 ========================== Dated this the 28th day of October, 2008. JUDGMENT The 5th defendant in O.S. No. 477 of 1992 on the file of the Principal Munsiff's Court, Kozhikode-I is the appellant in this Second Appeal. The suit is one for partition and separate possession of the 1/7 share of the plaintiffs and the 7th defendant over the plaint schedule property. The trial court as per preliminary decree dated 22.12.1995 passed a decree holding that the plaintiff and the 7th defendant are altogether entitled to 1/7 share and defendants 1 to 6 are each entitled to 1/7 share in the plaint schedule property. Thus, the 5th defendant/appellant is entitled to 1/7 share over the property. Thereafter, the plaintiff applied for the passing of final decree as I.A. No. 827 of 2003. The final decree court issued a commission who submitted his report and allotment to which the appellant/5th defendant did not raise any objections. The trial court thereafter passed a final decree dated 01.04.2006 accepting the allotment suggested by the Advocate Commissioner. The appellant preferred an appeal R.S.A.No. 842/2008 : 2: before the District Court, Kozhikode as A.S. No. 280 of 2006 assailing the allotments. The lower appellate court has partly allowed the appeal enhancing the owelty amounts payable to the appellant taking note of the advantages and disadvantages of the parcels of land allotted to the other sharers and the appellant respectively. It is the said judgment which is assailed in this Second Appeal. 2. The learned counsel appearing for the appellant submitted that the lower appellate court has virtually accepted the inequitable allotment of the property by the Final Decree Court and this results in miscarriage of justice to the appellant who is entitled to 1/7 share over the property. 3. I cannot agree. In the first place, the appellant did not file any objections to the allotment suggested by the Advocate Commissioner deputed by the Final Decree Court. In spite of that, the lower appellate court has in the interests of justice, enhanced the owelty amount payable to the 5th defendant. The lower appellate court was not inclined to remand the case back to the Munsiff's Court since it was not found that the allotment was R.S.A.No. 842/2008 : 3: inequitable. Under these circumstances, I do not find any question of law, much less any substantial question of law justifying interference in Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 28th day of October, 2008. V. RAMKUMAR, JUDGE. rv R.S.A.No. 842/2008 : 4: