IN THE HIGH COURT OF KERALA AT ERNAKULAM
AFA.No. 64 of 1994()
1. VANNANKANDI GANGADHARAN VYDYAR
... Petitioner
Vs
1. V.NARAYANAN VYDYAR
... Respondent
For Petitioner :SRI.P.N.K.ACHAN(SR)
For Respondent :SRI.P.K.APPA NAIR,M.K.S.MENON
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :14/01/2009
O R D E R
P.R. RAMAN &
C.T.RAVI KUMAR, JJ.
= = = = = = = = = = = = =
A.F.A. NO. 64 OF 1994
= = = = = = = = = = = = =
DATED THIS, THE 14TH DAY OF JANUARY, 2009.
J U D G M E N T
Raman, J.
This is an intra-court appeal filed against the judgment of the learned
Single Judge in A.S. 5/1982. In a suit for partition, in the final decree
proceedings, allotments were made as per the Commissioner’s report and
account. The third defendant filed an objection seeking to remit the
commission report as he had some grievance in the matter of the allotment
proposed. The court, after hearing the parties, passed an order and the
report was remitted to the Commissioner to file a revised report in
accordance with the directions so issued. The Commissioner subsequently
visited the property and filed a revised report, effecting modifications in
the original report. Accepting the revised report, the court below as per
order dated 24.7.1981 in I.A. 1734/1984 in O.S. 16/1969, passed a final
decree in terms thereof. That was the subject matter of challenge in the
first appeal. The learned Single Judge found no reason to interfere with the
impugned order passed by the court below and accordingly, the first appeal
was dismissed. Aggrieved thereby, this appeal is preferred.
AFA 64/1994 :2:
2. Being an intra-court appeal, this Court cannot treat the present
appeal in the same manner as an appeal arising from an order of the
subordinate court. At the same time, if there is any illegality arises out of
the order passed, necessarily, this Court will have to consider the same.
Hence we heard the learned Senior Counsel Sri. Krishnankutty Achan
appearing on behalf of the appellant who contended that the revised report
submitted by the Commissioner ought to have been accepted. His main
grievances are that there is no reason to keep the disputed kudikidappu
without being partitioned and there is no justification for the allotment of
the Vettilachanda.
3. We have also heard the learned counsel Sri. Mohan C. Menon,
and Sri. P.K. Suresh Kumar, appearing on behalf of the contesting
respondents.
4. In the order of the Subordinate Court, it is stated in Paragraph 2
that the Commissioner was appointed to divide the property in accordance
with the directions contained in the preliminary decree and he filed a report
and account which were remitted to him as per order in I.A. 2612/76 dated
13.7.1979. It is further stated that the parties have no objection to the
allotment suggested by the Commissioner and so the revised share list
submitted by the Commissioner is accepted. Though in the memorandum of
AFA 64/1994 :3:
appeal filed before this Court, in para 2, the observation of the court below
that objection was not filed is disputed, no grounds as such is raised in the
appeal. Besides it is not substantiated. Even we have asked the Registry to
go through the records to see as to whether any such objection is filed; but it
could not be tranced out. We asked the learned Senior counsel to place on
record any such objection and admittedly no such objection is there in his
files also. Despite the fact being thus, the learned Single Judge had
considered the objection as raised by the counsel before that court as is
evident from the judgment. Therefore, even in the absence of any such
objection filed on record, that objection was considered by the learned
Single Judge in the appeal. Those contentions were reiterated before us
also.
5. As regards the non-allotment of the kudikidappu is concerned,
there is a specific observation by the learned Single Judge that though the
party wanted that plot also to be valued, he is not agreeable for allotment of
that area towards his share. In other words, everybody thinks that there is
a risk element involved in taking the property along with the kudikidappu
towards his share because a claim is likely to be raised. Whether such a
claim is raised or not, it remains that there exists a kudikidappu, which is
excluded from partition. So that if in future, any party feels that there is no
AFA 64/1994 :4:
kudikidappu or kudikidappu right raised is rejected, it is open to the party
then to apply for partition of that property as well. That right is left open.
6. Regarding the allotment of Vettilachanda is concerned, it is
allotted to the third defendant because it was used as a store house by him
and it is not correct to say that this is something which is allotted to him free
of cost or as excess of his share. As a matter of fact, we have found that
what is allotted to him is only in accordance with his share as is due. There
may be some minor variation herein and there as rightly pointed out by the
learned Single Judge, which are not matters for rectification at this stage.
As a matter of fact, in the matter of partitioning of property, it is not
possible to divide the property to the fullest satisfaction of all. At the same
time, the partition has been done in a fair manner without much grievance to
any of the parties to be complained of and for a rectification by an appellate
court, much less at a second appellate stage. In such circumstances, we
refrain to interfere with the judgment under appeal. Accordingly, the appeal
is dismissed.
P.R. RAMAN,
(JUDGE)
C.T.RAVIKUMAR,
(JUDGE)
knc/-
AFA 64/1994 :5:
P.R. RAMAN &
C.T. RAVIKUMAR, JJ.
= = = = = = = = = = = = =
A.F.A. NO. 64 OF 1994
= = = = = = = = = = =
J U D G M E N T
14.1.2009.