IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 470 of 2005(E)
1. C.G.NARAYANANKUTTY, CHAKKUNGATHODIYIL
... Petitioner
Vs
1. REMANI, W/O.DECEASED PRABHAKARAN,
... Respondent
2. KUNHIMALU, W/O.DECEASED RARU,
3. UNNI AYYAPPAN,
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-
10. USHA, RESIDING - DO-
11. AYISHA, RESIDING -DO -
12. GEETHA, (ALL ARE RESIDING AT
13. SARADA, W/O. DECEASED RAMAN,
14. KRISHNA MOHAN, RESIDING -DO-
15. SUDHA, RESIDING - DO-
16. C.D.GOVINDANKUTTY, CHAKINGALTHODI VEEDU,
17. VIJAYAN,
18. GOPIKA,
19. VASANTHA,
20. PRABHAVATHY,
21. KRISHNAVENI, (ALL ARE CHILDREN OF
22. SOJAKUMARI, D/O.C.D.DAMODARAN,
23. BRAHAMANANDAN, ENGINEER K.S.E.B,
24. NEENA DATT, RESIDING AT KOCHERY HOUSE,
25. ANU DATT, RESIDING - DO-
26. KANI DATT, RESIDING DO.
27. VIJAYAKUMAR, CHAKKINGALTHODI HOUSE,
28. RAGHUNATH, RESIDING -DO-
29. GOPINATHAN, HAPPY HOUSE (CHAKUNGATHODI)
30. C.K.SWAYAMPRABHA, RESIDING D0.
31. C.K.SOMAN, LAKSHMI NIVAS
32. VIJAYALAKSHMI, W/O.DARMAPALAN,
33. LAKSHMANAN, S/O.CHAKKUNGATHODIYIL RAMAN,
34. NARAYANA DAS, DO. RESIDING DO.
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :SRI.SANTHEEP ANKARATH
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :12/06/2008
O R D E R
PIUS.C.KURIAKOSE, J.
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R.F.A.No.470 OF 2005
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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