The High Court dismissed an appeal challenging a Final Decree in partition proceedings. The court held that the trial court was justified in accepting the Commissioner's equitable report and passing the final decree, noting the appellants' failure to settle or justify the report's error.
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 P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN
FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931
RFA.No. 184 of 2008()
--------------------AGAINST THE ORDER IN FDIA.2453/05 IN OS.269/2003 of II ADDL.SUB COURT,KOZHIKODE
APPELLANTS(S)/RESPONDENTS 1 TO 4/DEFENDANTS 1 TO 4:
PANNIYANKARA AMSOM DESOM,KOZHIKODE TALUK.
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT(S)/PETITIONER & RESPONDENTS 5 & 6/PLAINTIFF & DEFENDANTS 5 & 6:
ADV. SMT.PRABHA R.MENON FOR R1 SRI.M.KRISHNAKUMAR FOR R1
SMT.PRABHA R.MENON FOR R2
P.CHALY FOR MEDIATOR
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 26/06/2009 DELIVERED THE FOLLOWING:
P.R. RAMAN & P. BHAVADASAN, JJ.
R.F.A. No. 184 of 2008
JUDGMENT
Bhavadasan, J,
This appeal arises out of the final decree proceedings in O.S. 269 of 2003.
follows:
R.F.A. 184/2008.
2
R.F.A. 184/2008.
3
commission report and sketch have not been properly considered. According to them, the commission report is totally unacceptable and that should not have been relied on by the court below to pass a final decree. According to them, the final decree is untenable on facts and in law.
that the house is seen to have set apart to the plaintiff in the suit. Learned counsel for the appellants pointed out that in fact defendants 1 to 4 were residing in the house and the result of the
R.F.A. 184/2008.
4
final decree is that they will be thrown out. According to learned
counsel for the appellant, plaintiff and her son are residing at Vadakara and under such circumstances, the house ought to have been allotted to defendants 1 to 4.
fee for having their separate shares allotted. May be that merely because of the said fact that final decree could not have been
passed to their prejudice. The final decree passed reads as follows:
R.F.A. 184/2008. 5
plot A in Ext.C2 plan allotted as the share of the petitioner till the owelty amount due is paid to the respondents or deposited in court.
below with the sketch was made available for perusal to this court. Commission report and the plan were marked as Exts.C1 to C5. The court below on going through the commission report was satisfied that the Commissioner had done effective and equitable partition of the property. The valuation adopted by the Commissioner seems to be just and proper. It is also noticed by the court below that the Commissioner had taken the assistance of an expert for valuation. Since the defendants had not paid separate court fee for allocation of their share, they were given
R.F.A. 184/2008.
6
their share jointly. They are simply challenging the commission
report on the ground that no separate allotment was shown in their favour.
R.F.A. 184/2008. 7
Tarwad house, which bears No.30/1633, the commissioner found the plaintiff and respondents 1 and 2's were residing with their families. In the other house found nearby, it was noticed by the commissioner that the sixth defendant is residing there with his family. There is a claim that the said house was constructed by sixth defendant himself. Commissioner has mentioned the circumstances under which he was constrained to allot the house to
the plaintiff. There is nothing to indicate that the said act has caused substantial prejudice to the defendants, since they have no case that the property set apart to them jointly is not sufficient. Plaintiff is prepared to pay the owelty amount to the defendants.
R.F.A. 184/2008.
8
profits. That was not acceptable to the appellants. One should
remember that this is in addition to the sum of Rs.53,000/- and odd to be paid by the plaintiff to the appellants as owelty. It is clear that the attempt is only to protract the proceedings.
In such circumstances no interference is called for with the order of the court below. It is accordingly confirmed. The appeal is without merit and it is accordingly dismissed. There will be no order as to costs.
P.R. Raman, Judge
P. Bhavadasan, Judge
sb.
2 issues framed by the court
Whether the trial court was justified in passing a final decree despite the pendency of an appeal against the preliminary decree.
Whether the High Court should interfere with the Final Decree accepting the Commissioner's report.
1 provisions across 1 enactments
Palatt Ravindran & Ors.
Palatt Samikatty & Ors.
P.R. Raman
P. Bhavadasan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
