IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 37 of 2009()
1. T.M.BALAKRISHNAN, S/O.RAMAN,
... Petitioner
Vs
1. T.M.JANU, D/O.RAMAN, NADUVILE MALAKKAL
... Respondent
2. T.M.DEVAKI, D/O.RAMAN,'RAM VIHAR'
For Petitioner :SRI.R.BINDU (SASTHAMANGALAM)
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :21/01/2009
O R D E R
V. RAMKUMAR, J.
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R.S.A.No.37 of 2009
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Dated this the 21st day of January 2009
JUDGMENT
The 1st defendant in O.S.No.455 of 1995 on the file of the
Munsiff’s Court, Kozhikode is the appellant in this second
appeal. The said suit was one for partition and separate
possession of one item of plaint schedule property having an
extent of 79.96 cents. As per the preliminary decree which has
become final, the appellant is entitled to 18/30 shares and the
plaintiff is entitled to 3/30 shares and the 2nd defendant to 9/30
shares. In the final decree proceedings initiated as I.A.No.1328
of 2003, the final decree court appointed a Commissioner. The
Commissioner deputed by the final decree court submitted the
Exts.C1 to C5 reports and plan indicating the allotment. Plot
No.1 admeasuring 8 cents was allotted to the plaintiff. Plot No.2
admeasuring 47.96 cents together with the residential house and
the additional block, a shed and a well situated therein was
alloted to the appellant/1st defendant. Plot No.3 admeasuring 24
cents was allotted to the 2nd defendant. The final decree court
R.S.A.No.37 of 2009
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has passed a final decree accepting the allotment suggested by
the Commissioner and passed the final decree which has been
confirmed in appeal. Hence this Second Appeal.
2. The following are the questions of law formulated in the
memorandum of second appeal:-
1. Were the courts below have construed the Advocate
Commissioner’s plan and report legally and correctly
while passing the final decree?
2. Were the allotment of plot No.1 to the 1st respondent
herein is legal and proper?
3. The learned counsel for the appellant submitted that
plot No.1 which has been allotted to the plaintiff and abutting
the lane on its west and forming the western boundary of the
northern portion of plot No.2 allotted to the appellant is
proposed to be sold by the plaintiff to strangers. If the said
proposal materializes, the privacy of the appellant will be lost.
The appellant is therefore willing for the allotment of a plot
situated to the south of plot No.2 to the plaintiff in exchange for
plot No.1 which has been alloted to her.
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4. The final decree court was not inclined to accept the
said contention of the appellant. The plaintiff was not a
consenting party to the above proposal. Even assuming that the
plaintiff assigns plot No.1 alloted to her, it need not necessarily
give rise to any problem of privacy for the appellant. Even if
such a problem arises, the appellant can construct a compound
wall along the lane “HI” in the plan submitted by the
Commissioner. The plaintiff who has been deprived of her
share all these years and who has been finally alloted Plot No.1
abutting the lane forming the western boundary of plot No.1
cannot be pushed away to an inconvenient plot towards the
southern portion of plot No.2 admeasuring 47.96 cents to her
disadvantage and detriment. No question of law, much less
any substantial question of law arises for consideration in this
second appeal. The questions of law formulated in the
memorandum of appeal also do not arise for consideration in
this second appeal, which is accordingly dismissed in limine.
Dated this the 21st day of January, 2009.
V. RAMKUMAR, JUDGE
sj