IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 RFA.No. 423 of 2004() --------------------- AGAINST THE ORDER DATED 15/09/2003 IN IA.NO.619/1999 IN OS.112/1997 of ADDL.SUB COURT, KOCHI .................... APPELLANT/1ST RESPONDENT IN IA/PLAINTIFF IN OS: ---------------------------------------------------------------- V.N. SURESH BABU, S/O. V.J. NARAYANA PRABHU, 18/478, VEMBRAKATT HOUSE, WATER LAND ROAD, PALLURUTHY VADAKKUM MURI, RAMESWARAM VILLAGE, KOCHI-6. BY ADV. SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI RESPONDENTS: PETITIONER/RESPONDENT 2 TO 5 IN IA: ------------------------------------------------ 1. V.J. NARAYANA PRABHU, S/O. JANARDHANA PRABHU, 18/478, VEMBRAKATT HOUSE, WATER LAND ROAD, PALLURUTHY VADAKKUM MURI, RAMESWARAM VILLAGE, KOCHI-6. 2. SAKUNTHALA, W/O. NARAYANA PRABHU, 18/478, VEMBRAKATT HOUSE, WATER LAND ROAD, PALLURUTHY, KOCHI-6. 3. PUSHPALATHA, D/O. V.J. NARAYANA PRABHU, 18/478, VEMBRAKATT HOUSE, WATER LAND ROAD, PALLURUTHY, KOCHI-6. 4. SANTHA, D/O. V.J. NARAYANA PRABHU, 18/478 (B), VEMBRAKATT HOUSE, WATER LAND ROAD, PALLURUTHY, KOCHI-6. 5. DIVAKARA PRABHU, S/O. C.N. VAMANA PRABHU CHENNASSERY HOUSE, OPP.PALLURUTHY, INDL.ESTATES, PALLURUTHY VADAKKUM MURI, RAMESWARAM VILLAGE, KOCHI-6. -2- R.F.A.NO.423/2004 ADDL. 6. MR.A.JOSEPH, AMBALATHINKAL, KUKMBALANGI P.O., KOCHI-7. (Addl. R6 is impleaded as per order dated 17/7/2008 in I.A.NO.1808/2005) BY ADV. SRI.S.R.DAYANANDA PRABHU FOR R5 SRI.K.S.RAJESH FOR R5 SMT.V.A.KASTHURI FOR R1 SRI.N.N.SUGUNAPALAN (SR.) FOR ADDL.R6 SRI.S.SUJIN FOR ADDL.R6 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.F.A.NO.423/2004 ORDER ON I.A.NOS.2598/04 & 1809/O5 IN R.F.A.NO.423/04 ------------------------------- Dismissed. Sd/- P.R.RAMAN, JUDGE. 17/7/2008 Sd/- T.R.RAMACHANDRAN NAIR, JUDGE. P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- R.F.A.NO.423 OF 2004 -------------------------------- Dated this the 17th day of July, 2008 JUDGMENT Raman,J. Appellant is the plaintiff in O.S.No.112/97 on the file of the Additional Sub Court, Kochi. The suit was one for recovery of possession, partition and mesne profits. There are 6 items of property. Respondents are the defendants in the suit. A preliminary decree was passed on 9/9/1998 partly decreeing the suit. Recovery possession from defendants 3 and 4 were allowed and decree was passed to divide item 1 excluding the property in possession of the 5th respondent and item 5 of the plaint schedule properties into two shares each for the appellant/plaintiff and the lst respondent/lst defendant. Partition of item 2 to 4 and 6 were disallowed. Though an appeal was preferred as A.S.No.596/99 against the preliminary decree, that was dismissed as per judgment dated 11/2/2002. Thus, the preliminary decree became final. -2- R.F.A.No.423/2004 Thereafter, an application was moved for passing a final decree. A Commissioner was appointed to value the items in the property sought to be divided. Report was filed by the Commissioner. Though an objection was filed, after examining the Commissioner, by a detailed order the objection was overruled and Commission report was accepted. Admittedly, the property was allotted to the plaintiff/appellant where a building is situated. The value of the building was assessed by the Commissioner with the help of a valuer. The court below accepted the valuation. There was a shop building in item 5. After taking into consideration of the valuation and after making adjustments, the court below directed the plaintiff to pay in all an amount of Rs.1,54,952/- by way of owelty to the lst defendant. The lst defendant died during the pendency of the proceedings and his legal representatives are on the party array as respondents herein. 2. The learned counsel for the appellant raised two contentions; (1) that the valuation of the building in the property -3- R.F.A.No.423/2004 allotted to the plaintiff was on the higher side and (2) that the building situated in item 5 was not available for partition and further assessment of value for the reasons is wrong and there is only one room in the building in item 5. The learned counsel for the respondents however supported the order passed by the court below. 3. Heard both sides. 4. The contention that the property in item 5 is not available for partition is only to be rejected. The plaintiff is the appellant and as per the plaint schedule, this property is also sought to be partible. A preliminary decree has already been passed and hence became final. It is fairly submitted that such an objection was also not raised before the court below. Then the only question is regarding the valuation made by the Commissioner. The commissioner has inspected the property and assessed the value of the building with the help of the Valuer. He found that it is a shop building consisting of two rooms, which is purely a finding of fact. -4- R.F.A.No.423/2004 The Commissioner was also examined in the case. The court below, after analysing the evidence in the matter, has considered all the aspects of the matter and directed to pay owelty. 5. In the circumstances and in the absence of further materials to show that such finding arrived at by the court below is in any way perverse or wrong warranting interference. The contention lacks merit. No other question was argued. Appeal is accordingly dismissed. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.