IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 32 of 2008()
1. CHANDRAMATHY AMMA,
... Petitioner
Vs
1. DIVAKARAN NAIR, S/O.LATE SANKARA PILLAI,
... Respondent
For Petitioner :SRI.K.S.SAJEEV KUMAR
For Respondent :SRI.T.B.THANKAPPAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :30/06/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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R.F.A. No. 32 of 2008
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Dated this the 30th day of June, 2009.
JUDGMENT
Bhavadasan, J,
The appeal is directed against the final decree in O.S.
No. 67 of 1969 dated 23.1.2007. The first respondent before the
court below is the appellant. The parties and facts are hereinafter
referred to as they were available before the court below.
2. The suit was one for partition. A preliminary decree
was passed on 17.1.1972. Thereafter petitioner filed I.A. 4095 of
1983 for the passing of the final decree. In that petition the trial
court issued a commission to effect the partition of the plaint
schedule property by metes and bounds. The commissioner filed a
report. However that petition was dismissed for default.
Thereafter I.A. 7096 of 1994 was filed for the passing of a final
decree. That application was disposed of on 30.1.1996. The first
respondent in that application, who is the appellant herein, took up
the matter in appeal as A.S.611 of 1996 before this court. The
appeal was allowed and the matter was remanded to the trial court
R.F.A. 32/2008. 2
to be reconsidered. Thereafter Commissioner was appointed to have
the property divided by metes and bounds and to submit a plan.
Exts.C1 and C1(a) are the Commission report and plan. Accepting the
commission report, final decree was passed in the following terms.
“1. The petitioner/plaintiff’s 2/3rd share is fixed as plot B
in Ext.C1(a) plan having an extent of 8.154 cents with the
building thereon.
2. One third share of the 1st defendant is fixed as plot A in
Ext.C1(a) plan having an extent of 4.07 cents.
3. The petitioner/plaintiff is directed to pay an amount of
Rs.1,50,000/- as owelty to the 1st defendant.
4. Ext.C1(a) plan will form part of the final decree.
5. For the purpose of engrossing final decree the value of
the property is fixed as Rs.3,86,750/- the value of the lesser
share.
6. The parties shall bear their respective costs.”
3. The first respondent in I.A. 7096 of 1994 assailed the
final decree passed by the court below. The contentions taken are that
the court below was not justified in accepting the Commission report
and passing a final decree on that basis. Even though the first
R.F.A. 32/2008. 3
respondent had taken serious objections to the Commission report and
wanted to examine the Commissioner and had taken steps for the same,
he was not permitted to do so. The allocation made by the
Commissioner is unjust and unfair. It is also contended that the
appellant was precluded from adducing evidence in support of her
contention.
4. Learned counsel appearing for the contesting
respondents on the other hand pointed out that there is no merit in any
of the contentions taken by the appellant. Several opportunities were
given to the appellant to adduce evidence and she failed to do so. As
far as the objection to the commission report are concerned, the only
objection of the appellant was that the valuation adopted by the
Commissioner was not correct and fair. No other objection whatsoever
was taken by the appellant before the court below.
5. On a reading of the final decree, it is seen that the claim
of the appellant was that she was precluded from adducing evidence is
not correct. The objection to the commission report, which was made
available for perusal would indicate that the sole objection taken before
R.F.A. 32/2008. 4
the court below was that the valuation adopted by the Commissioner
was not correct. The objection was that the property situates very near
to Veekshanam road and the price in that place is Rs.17,50,000/- per
cent. The commissioner has omitted to note the important
establishments in the locality and the valuation adopted therefore by
the commissioner is incorrect.
6. The claim of the appellant therefore that she has taken
objections to various aspects in the commission report does not appear
to be correct at all. Before this court, it is also contended that there is a
dispute regarding the inclusion of a pathway as a part of the share of
the appellant. No such objection is seen taken by the appellant before
the court below. Complaint was raised regarding the allocation of the
residential building to the petitioner before the court below. Again this
too is an objection raised at the appellate stage, which does not find a
place in the objection filed before the court below.
7. Learned counsel appearing for the appellant then pointed
out that she may be given an opportunity to raise her contentions again.
R.F.A. 32/2008. 5
8. One needs to note that the suit is of the year 1969 and
40 years have elapsed. The appellant had several opportunities to raise
her contentions. The first objection against Exts.C1 and C1(a) the only
complaint of the appellant was that the valuation adopted by the
Commissioner is incorrect. Even assuming it so, that has no bearing
on the decision in the case. One must notice here that the owelty
amount directed to be paid by the petitioner before the court below to
the first respondent was in respect of the residential building. So that
even assuming that the valuation of the property by the Commissioner
is low, that has no impact on the final decree passed by the court
below.
9. It is brought to the notice of this court that in fact after
the evidence was closed and the matter was posted for hearing, the
appellant had filed a petition to re-open the evidence. That was
allowed and she was given an opportunity to adduce evidence. For
reasons best known to the appellant, she chose not to adduce any
evidence. The court below has also observed in paragraph 3 of its
judgment that sufficient opportunities were given to the appellant to
R.F.A. 32/2008. 6
examine the Commissioner. There was no attempt on the side of the
appellant to do so. The court below has also observed that on going
through the order sheet it could be seen that the appellant had availed
of several opportunities to adduce evidence.
10. It must be noticed that the Commissioner had given
notice of his visit to the parties. The court below has noticed that the
petitioner before the court below did not press the claim for mesne
profits. The court below has also noticed that considering the nature
and lie of the property, the only practical way is to set apart a share of
the first defendant only as shown in Ext.C1(a) plan. The
Commissioner fixed the owelty at Rs.1,01,325/-. The court below on a
consideration of the above aspects fixed the owelty amount at
Rs.1,50,000/-. The court below has also chosen to increase the value
of the building based on which the owelty amount was fixed. There is
nothing to indicate that any injustice has been done to any of the
parties by the court below while passing final decree. With the
available materials and evidence the court below tried to allot the plots
shown in the commission report amicably and equitably to the
R.F.A. 32/2008. 7
respective parties.
11. No grounds are made out to interfere with the final
decree passed by the court below. It has already been noticed that four
decades have elapsed. Atleast now, it is necessary to put an end to the
litigation and let the parties enjoy the fruits of the decree.
This appeal is without merits and it is dismissed
confirming the final decree passed by the court below. There will be
no order as to costs.
P.R. Raman,
Judge
P. Bhavadasan,
Judge
sb.