IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 514 of 2009()
1. MALU, DAUGHTER OF KANNAN,
... Petitioner
Vs
1. KALLYANI, W/O.KUNHIRAMAN,
... Respondent
2. KUNHIRAMAN, S/O.KANNAN,
3. K.K.VELAYUDHAN, S/O.KANNA,
For Petitioner :SRI.JACOB ABRAHAM
For Respondent :SRI.ZUBAIR PULIKKOOL
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :30/07/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No.514 of 2009
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Dated this the 30th day of July, 2009
JUDGMENT
The Second Appeal is directed against the judgment and decree in
A.S. No. 34/2007 on the file of the Sub Court, Koyilandy which arises from
the judgment and decree in O.S. No. 39/2007on the file of the Munsiff-
Magistrare Court, Payyoli. The trial court passed a preliminary decree
declaring that the Plaintiff, 1st defendant and 3rd defendant are entitled to <
thshare each in respect of the plaint schedule property and they are
entitled for separate possession . The trial court also held that the issue
regarding equity and reservation shall be considered at the time of
passing of the final decree. In the first appeal preferred by the 2nd
defendant the decree and judgment passed by the trial court was
confirmed by the lower appellate court. Hence the second appeal. The
parties hereinafter referred to as plaintiff and defendants as arrayed in the
suit.
2. It is the case of the plaintiff that originally the plaint schedule
property belongs to her father Kannan. The defendants are her brothers
and sister. On the death of their father the property devolved upon the
plaintiff and the defendants. The defendants also admitted that the
plaintiff’s right over the property and that each of the sharers are entitled
R.S.A. No. 514 of 2009 -2-
for < th share over the property. The defendants 1 and 3 paid separate
court fee for their separate share. The trial court concluded that the plaint
schedule property is partiable and that the plaintiff and defendants 1 and
3 are entitled to < th share each over the property.
3. The 1st defendant contended that he is residing in the house
situated in the plaint schedule property and he had renovated the said
house by utilisiing his own funds and that he does not have any other
place of residence. On the basis of the said contentions the trial court
deputed a commissioner to effect division
4. In the first appeal also no party has raised any dispute with
regard to the shares. The contentions raised by the 2nd defendant before
the lower appellate court is that the measurement of the property shown in
the plaint is incorrect and that his father Kannan has got more property
than what is shown in Ext.A1 document. It is clear in law that after
declaring the shares of the parties and the identity of the property to be
partitioned in a preliminary decree , a civil court appoints a Commissioner
in the final decree stage to suggest the mode of partition as per Order 26
Rule 13 of the C.P.C. The lower appellate court held that the trial not went
wrong in holding that the issue regarding equity and reservation shall be
considered at the time of passing the final decree especially in the
R.S.A. No. 514 of 2009 -3-
circumstance,where the 2nd defendant has not disputed the identity of the
plaint schedule property.
5. So in the above circumstances the 2nd defendant’s
contentions as above will not lie and no other contentions are remains to
be answered in the Second Appeal. I am of the firm view that the view
taken by the lower appellate court that the questions raised by the 2nd
defendant are not germane for consideration before the passing of the
final decree by the trial court is a valid one. The lower appellate court
rightly held that the trial court’s findings cannot be interfered with. I think
that the courts below are justified in entering such findings in the given
circumstances. No questions of law much less any substantial question of
law arises for consideration in this appeal. No grounds are made out to
invoke this Court’s jurisdiction under Section 100 of the C.P.C. in this
appeal. This appeal fails and dismissed in limine.
(HARUN-UL-RASHID, JUDGE)
es.
HARUN-UL-RASHID, J.
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R.S.A. No. 514 of 2009
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JUDGMENT
30th July , 2009