IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 237 of 2001(C)
1. K.P. CHANDRAN
... Petitioner
Vs
1. K.P. THANKAMANI
... Respondent
For Petitioner :SRI.A.P.CHANDRASEKHARAN (SR.)
For Respondent :SRI.RAJU K.MATHEWS
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :15/01/2009
O R D E R
M.N. KRISHNAN, J
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A.S.No. 237 OF 2001
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Dated this the 15th day of January, 2009
JUDGMENT
This is an appeal preferred by the 1st defendant against the
final decree passed in O.S. 285/1988 of the Subordinate Judge,
Kozhikode. The suit was one for partition wherein the property was
ordered to be divided into five equal shares and the plaintiff and
defendants were entitled to one out of five shares each. The value
of the repairs and renovation of the house was reserved in favour of
the 1st defendant, so also the tank and the pump shed in his favour.
A commissioner was appointed and he had inspected the property
and submitted two plans C1 and C2. He divided items 1 and 3 into
3 plots and item No. 2 into 3 plots. Plot No. 1 was alloted to D4
having an extent of 61.09 cents. Plot No. 2 was alloted to D1
having an extent of 56 cents and Plot No. 3 to D2 having an extent
of 12 cents. Plot No. 4 was alloted to the share of D2 having an
extent of 39.85 cents. Plot No. 5 to D3 having an extent of 47.50
cents and Plot No. 6 to the plaintiff having an extent of 45.39 cents.
Or in other words items 1 and 3 together had an extent of 129.09
cents and items 2 had an extent of 132.74 cents. The final decree
court had alloted the properties accepting the Commissioner’s plan
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and report. It is against that decision the 1st defendant has come
up in appeal.
2. The learned counsel for the 1st defendant had canvassed
before me that the valuation shown to the property is not correct
and at any rate the allotment of the well to the 2nd defendant is
incorrect because it is the only source of water for his house. So
far as the value of the property is concerned, it can be seen that
the Commissioner had done it equitably and as far as possible he
had taken steps to see almost equal extent of properties are
allotted to the sharers. He had taken into consideration the value
for the said purpose and had equitably allotted the property. In a
suit for partition there cannot be always division of the property in
equal extent of metes and bounds for the reasons the lie of the
land, the convenience of the parties, the access to the property etc.
requires consideration. A perusal of the 1st plan which deals with
items 1 and 3 would reveal that the Commissioner had divided the
property in such a way that each of the sharer is given a road
frontage. It has also to be stated it is the 1st defendant who has
been allotted the house and therefore by any stretch of imagination
he cannot have any grievance regarding the way in which the
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allotment is done. Therefore I do not propose to interfere with the
said allotment.
3. The learned counsel then had drawn my attention to the
plan. It is submitted by him that the well which is situated in the
property from where water is taken is allotted to the share of the
2nd defendant, whereas the pump shed which is used for drawing
water is allotted to the share of 1st defendant and it is only the
residential house of D1 that is available therein and the 2nd
defendant is staying at a different place. The learned counsel also
would submit that by allotting the well to the 2nd defendant and
permitting the 1st defendant to take water from the well may not
solve the problem for the reason if the property changes hands, it
will lead to another litigation and so he would submit that the said
plot be replaced by some other plot in favour of 2nd defendant. I
feel it may not be very easy to shake the division already effected
by the Commissioner and the parties are already litigating for the
last 21 years without a final result. So it is desirable that a remand
is averted and at the same time it has to be seen that no injustice is
done to any of the parties in the matter. I feel there is some force
in the contention of the 1st defendant that the well should be given
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to him.
4. I heard the arguments of the counsel for the 2nd defendant
also and 2nd defendant has filed an affidavit before the court
agreeing for taking water by 1st defendant from the well. But it
may not solve the problem for the reason if it changes hands or the
relationship deteriorates it would further lead to complication.
There is no point in reserving that well or allotting that well to 2nd
defendant especially when she is residing away from the place,
where as 1st defendant is using the water from that well and he is
the person who is residing in the house which is situated in that
item of property. Therefore I feel that the well situated in Plot No.
3 which is allotted to 2nd defendant can be alloted in favour of the
1st defendant and the 1st defendant be directed to pay the value of
the well plus some additional amount for laying the pipe for the
reason that if the pipeline is laid through the portion of a property it
makes practically impossible for the 2nd defendant to enjoy which
will create further complications. Therefore I direct the 1st defendant
herein to have the pipe taken through the northern extremity of
Plot No. 3 to the area of Plot No. 2 and then laying the pipeline
through the appellants property and to the water tank, whatever it
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may be. So by putting the pipeline through the northern extremity
of the 2nd defendant’s property it may cause some difficulty and
therefore I direct the 1st defendant to pay a sum of Rs. 2,000/-
more to the 2nd defendant. Or in other words for reallotting the well
to the 1st defendant coupled with the laying of pipe through the
northern extremity, additional amount of Rs. 5,000/- has to be paid
by the 1st defendant to the 2nd defendant and for that amount also
the share of the 1st defendant shall be a charge.
5. In the result, the appeal is disposed of with a modification
that the well situated in Plot No. 3 in Ext. C1 plan is allotted to the
1st defendant and the 1st defendant is permitted to lay the pipe
through the northern extremity of Plot No. 3 to the point it enters
the property alloted to 1st defendant and from there he may have
to take the pipeline through his own property. It is further directed
that the 1st defendant is to pay a sum of Rs. 5,000/- to the 2nd
defendant and for the said amount the property alloted to the 1st
defendant shall be a charge.
The appeal is disposed of accordingly.
M.N. KRISHNAN,JUDGE
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