IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 AS.No. 625 of 1998(A) ------------------------------- AGAINST THE ORDER DATED 30/06/1997 IN IA 719/95 IN OS.141/1990 of SUB COURT, KASARAGOD .................... APPELLANT/8TH RESPONDENT/8TH DEFENDANT: -------------------------------------------------------------------------- K.VASUDEVA BHAT, S/O.VISHNU BHAT, RESIDING AT AVALA IN BAYAR VILLAGE AND POST, KASARAGOD TALUK, (VIA) UPPALA. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENTS/PETITIONERS/PLAINTIFFS AND RESPONDENTS/DEFENDANTS 2 & 4 TO 7: ---------------------------------------------------------------------- 1. ISHWARA BHAT, CHILDREN OF SRINIVAS BHAT. 2. NAGARAJA, CHILDREN OF SRINIVAS BHAT. 3. GOVINDA BHAT, S/O.SRINIVAS BHAT. 4. SMT.RADHA, W/O.GOVINDA BHAT. 5. K. DEEPAK, SON OF GOVINDA BHAT. 6. SATHYANARAYANA PRASAD, CHILDREN OF KRISHNA BHAT. 7. K. SRINIVASA PRASAD, CHILDREN OF KRISHNA BHAT. NO.1 IS REPRESENTED BY HIS POWER OF ATTORNEY HOLDER NO.2, RESIDING AT AVALA HOSAMANE, BAYAR VILLAGE AND POST, KASARAGOD TALUK. NO.3 TO 7 ARE RESIDING AT NELTHRODY HOUSE, KALIYA VILLAGE, BELTHANGADY TALUK, P.O. NALA (D.K.) KARNATAKA STATE. R1 & R2 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE ADV. SRI.P.B.KRISHNAN. R3 BY ADV. SMT.M.M. TEENA. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 625 of 1998(A) ORDER ON C.M.P. NO.4758/1999 IN AS. NO.625/1998 DISMISSED 07/06/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.N. KRISHNAN, J. ........................................... A.S.NO.625 OF 1998 ............................................. Dated this the 7th day of June, 2010. J U D G M E N T This is an appeal preferred against the final decree passed by the Subordinate Judge's Court, Kasaragod in I.A.No.719/1995 in O.S.No.141/1990. As per the preliminary decree for partition, 6 out of 15 shares is set apart to the share of the plaintiffs and remaining shares are set apart for the share of the defendants. The court after consideration of the Commissioner's report alloted the property described in share list No.1 to the share of the plaintiffs and the property described in share list No. 2 of the Commissioner's report be allotted to the share of the 8th defendant and the property comprised in R.S.No.598/2A3 in Ext.C1 be allotted to D4 and D7 jointly. The court also directed the 8th defendant to pay at the rate of Rs.3,355/= towards the share of income for three years prior to the date of suit and from the date of suit till appointment of the receiver. There is also a provision for equalization of the shares. 2. I had perused the order passed by the learned : 2 : A.S.NO.625 OF 1998 Subordinate Judge in the final decree proceedings. The court referred to the Commissioner's report as well as objection filed by the parties. There is a contention that division of the property comprised in RS.558/1 in north south direction was highly unequal. The court had considered the lie of the lane and ultimately had passed the order. I do not find any error committed by the Commissioner and acceptance of the same by the court regarding the allotment. 3. The learned counsel for the appellant very strongly argued before me that the Commissioner was not correct in fixing the income in the manner in which he has done it. The suit was filed on 19.10.1990 and a receiver has taken possession of the property in October 1995. As per the preliminary decree, mesne profit is liable to be paid by the plaintiffs three years prior to the institution of the suit and till the date of appointment of the receiver. Suppose the date is taken as 19.10.1990, from 19.10.1987 to 19.10.1990 three years past profits have to be paid. During the pendency of the suit 5 years' profits had to be paid till : 3 : A.S.NO.625 OF 1998 October 1995. The Commissioner had inspected the property and was able to find 366 arecanut trees and 8 coconut trees in that property. Whether more number of trees were available and when it got withered away are only guess work and so it is desirable that the number of trees pointed out by the Commissioner at 366 arecanut trees can be taken into consideration for the purpose of this case. Immediately after the institution of the suit as there had been some attention previously, it would have been better. So I compartmentalise the period of 8 years into two durations. For the first 4 year, I fix the number of trees at 366, yield at 150 areacanut per tree, price at 15 Ps per arecanut and set apart 40% for cultivation expenses. When this is done, the amount will come to Rs.5,781/= for each year. For the next 4 year, I take the number of trees at 366, yield at 125 arecanut per tree, value at 20 Ps per arecanut and 40% deduction as cultivation expenses, the amount will come to Rs.6,330/-. 6 out of 15 shares due to the plaintiffs during the first 4 year will be Rs.2,312/= and the next four years at Rs.2,532/=. That is 9248+10128 making : 4 : A.S.NO.625 OF 1998 a total of Rs.19,376/= as profits from 19.10.1987 till 19.10.1995. So the order under appeal requires modification only in that regard and in all other aspects, the mode of allotment etc are confirmed. The appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 5 : A.S.NO.625 OF 1998 M.N. KRISHNAN, J. ........................................... A.S.NO.625 OF 1998 ............................................. 7th day of June, 2010. J U D G M E N T