Dismissed

Chandy v. K.O.Mathai

Kerala HC4 Jul 2012RSA/754/2012

Case brief

AI extract

What is this about?

The High Court of Kerala, in this regular second appeal, affirmed the final decree for partition passed by the trial court and confirmed by the first appellate court. The appellant challenged the north-south division and the assessment of mesne profits and timber value, but the High Court found no merit in the objections and dismissed the appeal.

What did the court decide?

Second appeal dismissed; all pending interlocutory applications in the appeal stand dismissed.

Chandy Vs K.O.Mathai — Partition | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 4TH DAY OF JULY 2012/13TH ASHADHA 1934

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RSA.NO. 754 OF 2012 ()

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AS.366/2007 OF ADDITIONAL DISTRICT COURT, KOTTAYAM IA.NO.146/2005 IN OS.11/1999 OF SUB COURT, PALA

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APPELLANT/APPELLANT/RESPONDENT-DEFENDANT:

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CHANDY

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S/O. JOSEPH, KAPPALUMACKAL HOUSE POOVARANY KARA AND POOVARANI VILLAGE MEENACHIL TALUK, KOTTAYAM DISTRICT.

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENT/RESPONDENT-PETITIONER-PLAINTIFF:

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K.O.MATHAI

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S/O. OUSEPH, RETIRED TEACHER, KAPALUMACKAL HOSUE NJANDUPARA.P.O, VAIAKOTTAROM KARA FORMERLY POOVARANY KARA AND POOVARANI VILLAGE MEENACHIL TALUK FORMERLY RESIDING AT KAPPALUMAKKAL HOUSE PONKUNNAM.P.O, CHIRAKKADAVU KARA CHIRAKKADAVU VILLAGE PIN 686 575.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No. 754 of 2012 ==================================== Dated this the 04^th day of July, 2012

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J U D G M E N T

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Defendant in O.S. No.11 of 1999 of the court of learned Sub Judge, Pala is the appellant before me challenging the final decree for partition passed in that suit and confirmed by the learned Additional District Judge (Special), Kottayam in A.S. No.366 of 2007.

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The learned Sub Judge in O.S. No.11 of 1999 passed a preliminary decree for partition of the suit property - 73 cents purchased by the appellant and respondent jointly as per sale deed No.1681/1984. The preliminary decree directed the said property to be divided into two equal halves. Respondent was allowed to realize mesne profits. The preliminary decree further directed that the location of allotment of shares shall be decided in the final decree proceeding. Respondent filed I.A. No.146 of 2005 for passing a final decree. The Advocate Commissioner submitted Ext.C1(a), plan and Ext.C2, report. Appellant filed I.A. No.370 of 2007 to set aside that report and plan. On that application evidence was recorded and the trial court by order dated

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R.S.A. No.754 of 2012

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-: 2 :-

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03.04.2007 dismissed that application. Thereafter I.A. No.146 of 2005 was allowed, the division made by the Advocate Commissioner was accepted and a final decree was passed. Property was divided in north-south direction into two plots, on the east and west. As per the order of the trial court plot No.1 was allotted to the respondent while plot No.2 was allotted to the appellant. First appellate court confirmed the final decree (learned counsel for appellant points out that in paragraph 8 of the judgment first appellate court has committed a mistake in referring to the respective plots allotted to the parties but has ultimately confirmed the decree of trial court allotting plot No.1 on the east to the respondent and plot No.2 on the west to the appellant).

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One contention appellant raised is that the northsouth division is inequitable. Learned counsel has given me a copy of the plan. The plan shows that the public road goes further towards west of the suit property and from the north-western corner of the suit property there is a way leading to the said public road. From the north-western corner of the suit property there is a pathway running towards the east in a curved manner almost going upto the middle of the property and reaching the north-

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R.S.A. No.754 of 2012

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-: 3 :-

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eastern corner of the property.

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Trial and first appellate courts observed that a division in east-west direction is not possible since if so done, the party to whom the plot on the southern side is allotted would not be able to make use of the pathway passing through the northern side. On going through Ext.C1(a), plan I find merit in that stand of the courts below. I do not find reason to interfere with the allotment made by the Advocate Commissioner as upheld by the courts below.

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Yet another objection raised is regarding mesne profits ascertained by the Advocate Commissioner. It is contended by the learned counsel that the Advocate Commissioner conducted test tapping in the month of December which is the high yielding time and that was taken as the average for the year. According to the learned counsel, the average would be much less than what the Advocate Commissioner has assessed.

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It is seen from the order passed by the trial and first appellate courts that the Advocate Commissioner, as against the plea of appellant that number of tapping days available in a year is 75 - 70, has taken 120 days a year. That was based on the

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R.S.A. No.754 of 2012

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-: 4 :-

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norms prescribed by the Rubber board. It is also seen that test tapping, valuation, etc., were conducted by the Advocate Commissioner in accordance with the norms prescribed by the Rubber road. Advocate Commissioner has given evidence as P.W.2 and his evidence and the test tapping he conducted was accepted by the courts below.

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Yet another objection is regarding value of standing timber. Appellant examined witnesses to prove the value of timber. Advocate Commissioner has taken the measurement of the timber and calculated the market value of the various standing timbers. Advocate Commissioner has also gave evidence in support of the valuation he has made as P.W.2. Courts below have accepted that also.

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On going through the judgments under challenge I do not find any substantial question of law involved for a decision. Nor do I think that the allotment made is either inequitable or that the assessment of mesne profits is exorbitant so that this Court is required to interfere.

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The litigation has started in the year, 1999 and it

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R.S.A. No.754 of 2012

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-: 5 :-

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should have a culmination.

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Second Appeal is dismissed.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Chandy v. K.O.Mathai

Case brief

What is this about?

What did the court decide?

Chandy v. K.O.Mathai

Case brief

What is this about?

What did the court decide?

What the court decided

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