IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 RSA.NO. 1096 OF 2010() ---------------------- {IN AS.325/2007 OF II ADDITIONAL SUB COURT, THRISSUR IA.10695/2003 OS.3225/2001 OF III ADDITIONAL MUNSIFF'S COURT,THRISSUR .................... APPELLANT (S):/APPELLANT/RESPONDENT/1ST DEFENDANT --------------------------------------------------------------------- PYLOTH, S/O.NEELANKAVIL ANTHONY, KUTTUR VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): RESPONDENT 1 TO3/PETITIONERS/PLAINTIFFS ------------------------------------------------------------------------- 1. THRESSIA,W/O.NEELANKAVIL ANTHONEY MUNDUR VILLAGE, DESOM, THRISSUR. 2. ELYA W/O. NOORKULANGALARA JOHNY,POTHORE VILLAGE, THRISSUR TALUK. 3. ROSE W/O.CHNGETH ITIYECHAN, ADATT VILLAGE, DESOM, THRISSUR. 4. MARIYAM,W/O.CHAKKALKKAL ALIYAKKAN, AUGUSTY, NETTISSERY VILLAGE, THRISSUR TALUK. R1 TO R3 BY ADV. SRI.K.G.BALASUBRAMANIAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------------------- R.S.A.No.1096 of 2010 ---------------------------------------------- Dated this the 4th day of January, 2011 JUDGMENT Final Decree passed in a suit for partition is challenged in the appeal. 1st defendant in the suit is the appellant. He alone resisted the claim for partition. Negativing the contentions raised by the 1st defendant, a preliminary decree was passed holding that the plaintiffs are entitled to 3/5 shares in the suit property, which was described as having 32 cents. No decree was granted in favour of the two defendants, including the present appellant/1st defendant in the suit. It appears, there was no challenge against the preliminary decree by any of the parties to the suit. In the final decree proceedings, when a commission was taken out to give effect to the division and allotment of the property in terms of the preliminary decree in favour of the plaintiffs, it was found that for providing suitable enjoyment of the shares by the parties, a pathway through the property giving R.S.A.No.1096 of 2010 :: 2 :: access to the plots to the respective shareholders has to be carved out in the property. Accordingly, the commissioner, after carving out a pathway, which took in an extent of 4.15 cents divided, the rest of the property found available and shares due to the plaintiffs were allotted as B, C and E schedule properties. Defendants 1 and 2, who were entitled to 2/5 shares in the suit property, both together were provided with A schedule having 9.85 cents. Though objections were raised to the commission report by the present appellant/1st defendant, such objections were not substantiated by any material whatsoever. However, after the commission report was accepted and a final decree was passed in terms in terms thereof, taking into account the concessions made at the time of hearing by which the plaintiffs even relinquished the owelty amount due to them in respect of the valuation made over the residential building situate in the A schedule property, the present appellant challenged the decree by way of R.S.A.No.1096 of 2010 :: 3 :: an appeal contending that the objections raised by him to the report and plan prepared by the commissioner have not been considered by the trial court. After examining the materials, the lower appellate court found no merit in the challenges raised by the 1st defendant/appellant and his appeal was dismissed. Feeling aggrieved, he has come up with this second appeal. 2. Notice given the respondents/plaintiffs have entered appearance. I heard the counsel on both sides. 3. The learned counsel for the appellant contended that the allotment made by the advocate commissioner under Ext.C1(a) plan is highly inconvenient and further the only well situate in A schedule property has now become practically rendered unusable as the pathway carved out takes in a major portion of that well. It is the further submission of the counsel that the pathway demarcated by the commissioner in Ext.C1(a) plan, if given effect to, would cause damage to the R.S.A.No.1096 of 2010 :: 4 :: existing building in A schedule property. 4. Perusing the judgments rendered by both the courts below, I find no merit in the submissions made by the learned counsel to assail the concurrent decision rendered accepting Exts.C1 report and C1(a) plan prepared by the advocate commissioner without any modification. 5. It is seen from Ext.C1(a) forming part of the final decree that the pathway provided through western extremity of the property is only the area available for providing access to the plots allotted to sharers, and any modification or alternate way cannot be formed without causing damage to the building in A schedule property. Further more, it is seen that the preliminary decree does not provide for separate allotment to the defendants and the decree was passed granting 3/5 shares in favour of the plaintiffs in the suit alone. The judgment rendered by the trial court would also reveal that, at the time of hearing, there was, in fact, no challenge on any aspect R.S.A.No.1096 of 2010 :: 5 :: covered by the commission report and the plaintiffs have given up the owelty amount, which was determined as due to them by the advocate commissioner. Counsel on both sides, it is seen from the judgment, agreed for passing a decree with such modification as reflected in the judgment of the trial court. When such be the case, further challenge taken against that decree by the present appellant/1st defendant was not at all entertainable as it was essentially a decree based on consent. There is no merit in the appeal and it is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.