IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 SA.No. 689 of 2001(F) --------------------- AS.635/1998 of I ADDL.DISTRICT COURT, THRISSUR IA.3432/1986 in O.S.No. 683/85 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANT/APPELLAT/PETITIONER: ----------------- P.V.VENKITACHALAM, S/O.VENKITARAMA IYER, PAZHAYANADAKKAVU, THRISSUR. BY ADV. SRI.K.PRABHAKARAN RESPONDENTS/ DEFENDANTS 1 TO & PLAINTIFF: ---------------------- 1. R.PARAMESWARA IYER, S/O.T.C.RMANATHA IYER, SANKER CAFE HOTEL, OPPOSITE TO MADRAS TELEPHONES, NSC BOSE ROAD, PARRYS, MADRAS-1. (DIED) 2. R.SANKARANARAYANAN, S/O.T.C.RAMANATHA IYER, (DIED) 15, GANARTH, CHEDDP NAGAR, CHEMBAR, BOMBY. 3. R. GOPALAKRISHNAN @ MUTHUKRISHNAN, S/O.RAMANATHA IYER, 25/616, PAZHAYANADAKKAVU, TRICHUR. 4. R. BALASUBRAMANIAN, S/O.LATE RAMANATH IYER, RESIDING AT 44, MUNIYAPPA NAIKKEN STREE, PERAMBUR, MADRAS. ADDL. 5. RAJAMMAL, W/O.LATE R. PARAMESWARA IYER, 25, 1252, PAZHAYANADAKKAVU, THRISSUR DISTRICT. (ADDL.R5 IS IMPLEADED AS PER ORDER DATED 13/2/2007 IN I.A.NO.2659/06) '' 6 .SARADA, W/O.LATE R. SANKARANARAYANAN, (DIED) GANARATH, CHIDDA NAGAR, CHEMBUR, BOMBAY. '' 7. RAGHUNATHAN, S/O.R.SANKARANARAYANAN, -DO- -DO- '' 8. ARJUN (MINOR), S/O.LATE PUSHKALA, -DO- -DO- '' 9. ANJALI (MINOR), D/O.LATE PUSHKALA, -DO- -DO- -2- S.A.NO.6809/2001 (ADDL.R 6 TO 9 ARE IMPLEADED AS THE L.RS. OF THE DECEASED 2ND RESPONDENT VIDE ORDER DTD. 3/8/07 IN I.A.NO.1372/07) (ADDL. R7 TO 9 ARE RECORDED AS THE LRS. OF THE DECEASED ADDL.6TH RESPONDENT VIDE ORDER DTD. 9/2/10 IN MEMO BEARING CF 601/10) ADV. SRI.N.SUBRAMANIAM FOR R1 TO 3 & ADDL.R5 TO 9 SRI.M.S.NARAYANAN FOR R1 TO R3 & ADDL.R5 TO R9 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.1601/2001 IN S.A.NO.689/2001 ------------------------- Dismissed 14/6/2010 Sd/- Harun-Ul-Rashid, Judge. HARUN-UL-RASHID,J. ------------------------------ S.A.NO.689 OF 2001 ------------------------------- DATED THIS THE 14TH DAY OF JUNE, 2010 JUDGMENT Petitioner in I.A.No.3432/86 in O.S.No.683/85 on the file of the Principal Munsiff's Court, Thrissur is the appellant. The appellant filed I.A.No.3432/86 for passing final decree. The final decree court allowed the said I.A. The Lower Appellate Court confirmed the findings of the final decree court. The 4th defendant in the suit is the appellant/applicant. The suit is one for partition. The plaint schedule property is an extent of 8 cents with a twin building. It is the case of the appellant that he is residing in one portion from the year 1958 onwards. The trial court passed a preliminary decree partitioning the property into four shares allotting ¼ th share to the plaintiff and the balance share to the defendants 1, 2 and 3. The 4th defendant is the purchaser of the 1/4th share allotted to the plaintiff. 2. While I.A.No.3432/86 filed by the appellant is -2- S.A.689/2001 pending consideration before the preliminary decree court, defendants 1 to 3 filed IA.No.3748/88 under Section 4 of the Partition Act stating that they are willing to purchase the 1/4th share assigned in favour of the appellant on payment of consideration to be fixed by the trial court. A Commissioner was deputed to make a valuation and to fix the share value of the appellant and he submitted a report with the assistance of an expert. 3. The final decree court by order dated 13/7/1992 allowed I.A.No.3748/1988, against which the appellant filed A.S.No.316/92 before the District Court, Thrissur. The District Court dismissed the said appeal confirming the order passed by the final decree court. The final decree court passed orders holding that the plaint schedule property shall be allotted to the joint share of defendants 1 to 3, that they shall pay Rs.2,24,850/- to the appellant as the value of the share and that the property allotted to the share of defendants 1 to 3 shall have charge for the -3- S.A.689/2001 amount found liable to pay to the appellant. 4. The learned counsel for the appellant contended that the final decree court went wrong in holding that Section 4 of the Partition Act will apply to the case, that the building situated in the plaint schedule property is a twin house having two separate house numbers, electric connections etc. and that the court below should have taken into consideration the fact that the appellant is living with his family in one of the twin house from 1958 onwards as a tenant and that there is a vacant land having more than 2 cents, which can be allotted to the appellant, which the final decree court fail to do so. 5. The order passed in I.A.No.3748/88 was confirmed by the Lower Appellate Court, which was again confirmed by this Court in S.A.No.715/97. Therefore, the only course open to the final decree court is to fix the consideration for the 1/4th share allotted to the appellant/applicant. The petitioner is a stranger and the defendants 1 to 3 are the joint -4- S.A.689/2001 owners of the building and property. The courts below observed that since the order in I.No.3748/88 has become final, Section 4 of the Partition Act is applicable and the entire property is liable to be allotted to defendants 1 to 3 provided they pay the value of 1/4th share allotted to the appellant/applicant. The trial court also examined the oral and documentary evidence adduced by the applicant as well as the respondents. After considering the respective contentions of the parties and the opinion of the expert the court below found that the property may fetch Rs.50,000/- to Rs.1,50,000/- in the locality and that the final decree court fixed Rs.1,00,000/- per cent as the value for the land, which is just and reasonable. The final decree court accepted the valuation in Ext.C1(a) and held that the 1/4th value comes to Rs.2,24,850/- and ordered that the petition schedule property shall be allotted to defendants 1 to 3 provided they pay Rs.2,24,850/- as the share value of the property belonging to the applicant/appellant. Based on the decision taken in the above manner, the findings and -5- S.A.689/2001 conclusions arrived at by the final decree court were confirmed by the Lower Appellate Court. 6. I have examined the contentions of the appellant and the contesting respondent. I find that the valuation made with the assistance of the expert and the allotment made by the courts below in the given circumstances are just and reasonable. I do not find any reason to interfere with the findings arrived at by the final decree court, which was confirmed in appeal. 7. The learned counsel for the respondents 1 to 3 brought to this Court's notice that the respondents have deposited the share value due to the appellant on 12/2/2001. In the result, the appeal fails and accordingly dismissed. No order as to costs. Sd/- HARUN-UL-RASHID, JUDGE. kcv.