IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 688 of 2010()
1. MUHAMMEDKUTTY, AGED 66 YEARS,
... Petitioner
Vs
1. PATHUMMAKUTTY, D/O.YAHUTTY, AGED 53
... Respondent
2. IYYATHUTTY UMMA,
For Petitioner :SRI.K.M.FIROZ
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :08/11/2010
O R D E R
THOTTATHIL B.RADHAKRISHNAN &
P. BHAVADASAN, JJ.
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R.F.A.No.688 OF 2010
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Dated this the 8th day of November, 2010
JUDGMENT
Thottathil B.Radhakrishnan, J.
One of the defendants in a suit for partition, where there
are only three parties, is in appeal against the final decree.
Pursuant to the preliminary decree, the plaintiff applied for
passing of the final decree. None objected. This is followed by
the issuance of a Commission. Following that, Exts.C3 and C4
report and plan were submitted by the Commissioner in view of
earlier directions. The court below has recorded that none of the
parties taken any oral evidence. There was also no objection
filed to the report. This situation is not challenged even before
us. In terms of Order XXVI Rule 14 (1) and (2), the procedure to
be adopted is that when report is filed by Commissioner, the
court, after hearing any objections that the parties may make to
the report, shall confirm, vary or set aside it. When the court
confirms or varies the report, it shall pass a decree in
RFA.688/10
2
accordance with the same as confirmed or varied. In the case in
hand, report and plan were not objected to. There was no
evidence adduced. The Commissioner was not challenged.
Obviously the court below is justified in passing the final decree.
We are not impressed by the submission on behalf of the
appellant that the Commissioner had made the report in
chambers when the court below has recorded that the
Commissioner has stated in his report that as directed by the
court, he had again inspected the property and necessary
changes were made as required. There was no objection filed to
the Commissioner report and the Commissioner was not even
summoned and examined. In this state of affairs, we find no
merit in this appeal. The appeal fails. The same is dismissed in
limine.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
Sd/-
P.BHAVADASAN,
Judge.
kkb.08/11.