IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 RFA.No. 470 of 2005(E) ---------------------- AGAINST THE ORDER DATED 31/03/2004 IN IA 1711/01 IN OS.5/1991 of SUB COURT, OTTAPPALAM .................... APPELLANT/15TH RESPONDENT/18TH DEFENDANT --------------------------------------------------------- C.G.NARAYANANKUTTY, CHAKKUNGATHODIYIL HOUSE, PUTHUKKAD AMSOM DESOM, TRICHUR DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: PETITIONER (2ND PLAINTIFF), RESPONDENTS/DEFENDANTS --------------------------------------------------------------- 1. REMANI, W/O.DECEASED PRABHAKARAN, PULAKKUTTATHIL VADANAMKURUSSY AMSOM DESOM, OTTAPPALAM TALUK. 2. KUNHIMALU, W/O.DECEASED RARU, CHAKKINGATHODIYIL HOUSE, VADANAMKURUSSY AMSOM DESOM, OTTAPPALAM TALUK.(DIED) 3. UNNI AYYAPPAN, RESIDING - DO. 4. UNNIKRISHNAN, RESIDING - DO. 5. DEVAKI, RESIDING - DO. 6. PREMA, RESIDING - DO. 7. C.J.JANARDHANAN, RESIDING - DO. 8. RATHI, RESIDING - DO- 9. SUBI, RESIDING - DO- R.F.A.NO.470/05 10. USHA, RESIDING - DO- 11. AYISHA, RESIDING -DO - 12. GEETHA, (ALL ARE RESIDING AT CHAKKINGATHODIYIL HOUSE, PUTHUKAD AMSOM DESOM IN THRISSUR DISTRICT) 13. SARADA, W/O. DECEASED RAMAN, RESIDING -DO-( Died) 14. KRISHNA MOHAN, RESIDING -DO- 15. SUDHA, RESIDING - DO- 16. C.D.GOVINDAN, CHAKINGALTHODI VEEDU, PUTHUKKAD. ( Name corrected) 17. VIJAYAN, 18. GOPIKA, 19. VASANTHA, 20. PRABHAVATHY, 21. KRISHNAVENI, (ALL ARE CHILDREN OF DECEASED DAMODARAN, RESIDING AT CHAKKINGALTHODY HOUSE, PUTHUKKAD) 22. SOJAKUMARI, D/O.C.D.DAMODARAN, CHAKKINGALTHODY HOUSE, PUTHUKKAD. 23. BRAHAMANANDAN, ENGINEER K.S.E.B, KOCHERY HOUSE, OLLUR, THRISSUR DISTRICT 24. NEENA DATT, RESIDING AT KOCHERY HOUSE, OLLUR, THRISSUR. 25. ANU DATT, RESIDING - DO- 26. KANI DATT, RESIDING DO. (Died) 27. VIJAYAKUMAR, CHAKKINGALTHODI HOUSE, VADANAMKURUSSI 28. RAGHUNATH, RESIDING -DO- R.F.A.NO.470/05 29. GOPINATHAN, HAPPY HOUSE (CHAKUNGATHODI) PUTHUKKAD, ALAGAPPA NAGAR, THRISSUR DISTRICT. 30. C.K.SWAYAMPRABHA, RESIDING DO-. 31. C.K.SOMAN, LAKSHMI NIVAS (CHAKKUNGATHODI), PUTHUKKAD, ALAGAPPA NAGAR(Died) 32. VIJAYALAKSHMI, W/O.DARMAPALAN, KARIPPOT HOUSE, KALLIPPADAM, SHOURNUR - 2. 33. LAKSHMANAN, S/O.CHAKKUNGATHODIYIL RAMAN, ARAMANA, PUTHUKKAD TRICHUR. 34. NARAYANA DAS, DO-, RESIDING DO- Additional respondents 35. ANUPAMA, D/O LATE C.K.SOMAN LAKSHMI NIVAS ( CHAKKUNGATHODI) ALAGAPPA NAGAR, PUDUKKAD TRICHUR DISTRICT 36. ANOOP, S/O LATE C.K. SOMAN RESIDING - DO- 37. GOVINDAN, S/O CHAKINGALTHODI LATE RARU AND VELU 76 YEARS, RESIDING AT VADANAMKURUSSI AMSOM AND DESOM, OTTAPPALAM TALUK Additional respondents 35 and 36 impleaded vide order dated 19-08-08 in I.A.No.1016/05 Additional 37th respondent impleaded vide order dated 19-08-2008 in I.A.No. 1720/08 It is recorded vide memo dated 23-3-06 that respondents 3 to 6 are the legal heirs of deceased second respondent. It is recorded vide memo dated 23-3-06 that respondents 24 and 25 are the legal heirs of deceased 26th respondent Name of 16th respondent corrected vide order dated 19/08/2008 in I.A.No.1019/06 It is recorded vide memo dated 23-3-06 that respondents 14, 15, 33 and 34 are the legal heirs of deceased 13th respondent RFA.NO.470/05 BY ADV. SRI.SANTHEEP ANKARATH FOR R32 SRI.R.RAJESH KORMATH FOR R1 SMT.MEENA.A. FOR R1 SMT.M.R.MINI FOR R1 SMT.SANJANA R.NAIR FOR R1 SRI.V.S.ROBIN FOR R1 SRI.K.V.SOHAN FOR ADDL.R35 & 36 SMT.SREEJA SOHAN.K. FOR ADDL.R35 & 36 SRI.E.R.VENKATESWARAN FOR ADDL.RES. SRI.R.SREEHARI FOR ADDL.RES. SMT.T.D.RAJALAKSHMY THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - R.F.A.No.470 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of August, 2008 JUDGMENT This appeal is preferred by the 18th defendant who was the 15th respondent in I.A.No. 1711/2001 in O.S.No. 5/1991 on the files of the Sub Court, Ottappalam which was an application for passage of final decree in a suit where the court had passed a preliminary decree for partition of plaint A and B schedule properties together with mesne profits. 2. The main ground raised in the appeal is that the impugned final decree has been passed without proper notice to the parties. It is alleged that the court below has relied on the report of the Commissioner only, to determine the value of decree schedule properties. 3. I have heard the submissions of Sri.T.G.Rajendran, learned counsel for the appellant and those of Smt.Preethy Karunakaran, Sri.Sandeep Ankarath and Smt.T.G.Rajalakshmi, learned counsel for the respondents. I do not find any merit at all in the submission of the RFA.No.470/2005 2 learned counsel for the appellant that it was without notice to the appellant that the impugned final decree was passed. Notice of the application for passage of final decree i.e. I.A.No. 1711/2001 was actually served on the appellant who was set ex parte by the court below due to her non-appearance . The impugned decree has been passed on the basis of Exts.C1 Commissioner's report and C2 plan prepared by the Taluk Surveyor apart from Ext.C3 plan prepared by the Commissioner himself. It is difficult to believe that the Commissioner conducted the inspection for the purpose of dividing the properties without being noticed by the appellant. 4. It was submitted by Smt.Preethy Karunakaran that the appellant had preferred A.S.No. 56/2002 against the preliminary decree in this case. As requested by her, the records pertaining to A.S. No.56/2002 were called for and examined. It is seen that A.S.No. 56/2002 was not filed on time. There was an application for condonation of delay caused in the matter of filing that appeal. By the time, the stay petition was filed in that appeal, the final decree which is impugned in this case had already been passed. Copy of the judgment RFA.No.470/2005 3 in A.S.No.56/2002 will show that the said appeal was dismissed on 23-11-2005. But long before that, on 31-03-2004, the impugned final decree had been passed. I therefore do not find any ground to interfere with the impugned final decree. More so, because I feel that it is an equitable division which was made by the Advocate Commissioner and the court below was justified in accepting the Commissioner's report and plan. The result is that the appeal will stand dismissed, but without any order as to costs. PIUS.C.KURIAKOSE JUDGE sv. RFA.No.470/2005 4