IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 RSA.No. 746 of 2008() --------------------- AS.8/2004 of PRL.SUB COURT,THALASSERY OS.459/1999 of ADDL.MUNSIFF COURT, KANNUR (IA.4363/2001) .................... APPELLANT/PLAINTIFFS: ----------------------------------------- 1. KUNDAN PARU AMMA, W/O.KUNJIRAMAN, NO OCCUPATION, AGED 74 YEARS, RESIDING AT KUNDAN HOUSE, AZHIKODE AMSOM AND DESOM, KANNUR. 2. KUNDAN PADMAJA, W/O.MUKKOTH BHARATHAN, AGED 54 YEARS, NO OCCUPATION, RESIDING AT PRASEETHALAYAM, AZHIKODE, KANNUR. 3. KUNDAN VANAJA, W/O.RAMAKRISHNAN, AGED 52 YEARS, NO OCCUPATION, RESIDING AT KUNNDAN HOUSE, AZHIKODE, KANNUR. BY ADV. SRI.C.A.JOSEPH SRI.K.K.MOIDEEN RESPONDENT(S): DEFENDANTS: -------------------------- 1. KUNDAN KARUNAKARAN NAIR, S/O.KUNJAPPA NAIR, AGED 66 YEARS, BUSINESS, RESIDING AT KUNDAN HOUSE, P..O.AZHIKODE, KANNUR. 2. KUNDAN PUSHPAJA, W/O.LAKSHMANAN, AGED 50, RESIDING AT KUNDAN HOUSE, AZHIKODE. 3. KUNDAN GIRIJA, W/O.RAGHAVAN, AGED 48 YEARS, NO OCCUPATION, RESIDING AT KUNDAN HOUSE, AZHIKODE, KANNUR. 4. KUNDAN GIREESHAN, S/O.KUNHIRAMAN NAIR, BUSINESS, RESIDING AT KUNDAN HOUSE, AZHIKODE P.O., KANNUR. ADV. SRI.V.R.KESAVA KAIMAL FOR R1 SRI.N.M.MADHU FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.746 OF 2008 -------------------------------- Dated this the 20th day of January 2011 JUDGMENT Plaintiffs in a suit for partition have filed this appeal challenging the correctness of the final decree passed in the suit. Nature of the challenge canvassed is confined to the allotment of the residential building situate in the plaint property by way of equitable considerations to the first respondent, who is admittedly in occupation of that building. The first respondent under the preliminary decree was found entitled to 6 out of 48 shares in the plaint property having an extent of 71.5 cents. On fixation of his share, he was found entitled to 9 cents in the property. Plaintiffs and also the first respondent set up claim for having the residential building situate in the property allotted in their share. The commissioner deputed by the court for measurement and also to fix the allotment in terms of the shares fixed to the parties under the preliminary decree prepared three lists showing various modes of allotments. The lists prepared by him, by which the building was alloted in the plot earmarked for the first respondent, was found acceptable to the trial court taking into consideration the equities pleaded by him to have the continued occupation of that building in the property alloted as his share. R.S.A No.746 OF 2008 - 2 - Subject to his liability to pay the owelty amount for equalisation of shares, a final decree was passed by the trial court accepting the above list prepared by the commissioner. Challenge raised by the plaintiffs impeaching the correctness of the allotment so made by way of an appeal, after reappraisal of the evidence, was turned down by the lower appellate court. Feeling aggrieved, the plaintiffs have preferred this Second Appeal. 2. Notice given, the respondents have entered appearance through counsel. I heard the counsel on both sides. The learned counsel for the appellant reiterated the pleas canvassed by them before the two courts below to impress me that the building should have been alloted in the share of the plaintiffs who are entitled to a major share in the suit property. The first plaintiff is an aged lady, who is not having any building of her own for occupation is also highlighted by the counsel to contend that the courts below went wrong in accepting the claim over the building by the first respondent. After going through the judgments rendered by both the courts below, I find no infirmity leave alone any illegality in accepting the claim over the building by the first respondent, when he is having its occupation with the members of his family. The circumstances pleaded by him, which are R.S.A No.746 OF 2008 - 3 - narrated in the judgment of the trial court, spell out that in considering the equities to be taken note of, the first respondent who is in occupation of the building has a better claim for allotment of the building in his share. There is no merit in the appeal, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv