The appeal challenging the final decree in a partition suit was dismissed. The court held that appellants could not raise new objections against the Commissioner's report after the lower court validly rejected their contentions based on the specific directions from a prior appellate judgment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE KURIAN JOSEPH &
THE HONOURABLE MR. JUSTICE K.T.SANKARAN
MONDAY, THE 5TH FEBRUARY 2007 / 16TH MAGHA 1928
RFA.No. 30 of 2007( )
I.A.NO.521/1991 IN OS.698/1985 of PRL.SUB COURT,THRISSUR
APPELLANTS: RESPONDENTS 3 TO 4: DEFENDANTS 5 & 6:
BY ADV. SRI.P.VIJAYA BHANU
SMT.K.S.CHANDRIKA
BY ADV. SRI.GOVIND K.BHARATHAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
I.A.NO.222/2007 IN R.F.A.NO.30/2007
DISMISSED
SD/- KURIAN JOSEPH, JUDGE
5/2/2007 SD/- K.T.SANKARAN, JUDGE
//TRUE COPY//
ahz/
KURIAN JOSEPH & K.T. SANKARAN, JJ.
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R.F.A. NO. 30 OF 2007
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Dated this the 5th day of February, 2007
JUDGMENT
Sankaran, J.
Respondents 3 and 4 in the final decree proceedings are the appellants. They filed R.F.A.No.404 of 2004 before this Court earlier challenging the final decree passed then. After hearing the parties in detail, as per the judgment dated 8th March, 2006, R.F.A.No.404 of 2004 was allowed, the operative portion of which reads thus:
“4. In the result the final judgment and decree passed by the Sub Court is modified and the matter is remitted to the trial court. The final decree court shall depute the same Advocate Commissioner to make the following changes in the allotment of plot.
Plot-A in the Commissioner's plan less a small extent on the south eastern corner of plot-A having a measurement of 6 feet north south and 22 feet east west will be allotted to the share of the plaintiffs 1 and 2. The Commissioner shall make adjustments in plot-D and plot-C to compensate the loss sustained by the plaintiffs 1 and 2 from plot-A and take the same space from plot-C which is allotted to the second defendant. The Commissioner
R.F.A. NO.30 OF 2007
:: 2 ::
shall also try to draw the line on the western side of plot-A slightly towards west so that plot-D will get equal extent on the southern side separating plot-B and plot-C.”
the Commissioner measured the property again and submitted report and plan. The appellants raised objections, but they did not examine the Commissioner. The court below rejected the contentions raised by the appellants and passed the final decree as directed by this Court in R.F.A.No.404 of 2004. The appellants contend in the appeal that in view of the new measurement, it is not possible to install a workshop on the northern side of the house since the area which is available there is less. The directions given in R.F.A.No.404 of 2004 were with specific measurements to be taken in carving out a plot on the south eastern side of plot-A. It was after considering all the contentions raised by the parties, such a direction was given. So long as the directions issued earlier stand unaltered, the appellants are not entitled to raise new contentions and raise objections, which they have now
R.F.A. NO.30 OF 2007
:: 3 ::
raised, against the Commissioner's report. The court below was justified in rejecting the contentions raised by the appellants. No grounds are made out for
interference in the appeal.
The Regular First Appeal is accordingly dismissed.
(KURIAN JOSEPH) Judge
(K.T.SANKARAN) Judge
ahz/
KURIAN JOSEPH& K.T.SANKARAN, JJ.
R.F.A.NO. 30 OF 2007
JUDGMENT
5th February, 2007
1 issue framed by the court
Whether the appellants are entitled to raise new contentions regarding property measurement after a final decree was passed by the trial court following earlier appellate directions.
Smita Satheesan & Vijayan
Valasa & Others
KURIAN JOSEPH
K.T. SANKARAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
