Dismissed

Thazhathuveettil Gangadharan Nair v. Krishnan Nair

Kerala HC18 Jul 2024RSA/491/2023

Case brief

AI extract

What is this about?

This fee simple regular second appeal by the third plaintiff against a final decree in a partition suit was dismissed. The High Court held that the minor variations in plot extents and the presence of a trench did not amount to a substantial grievance given the remand order's limited scope.

What did the court decide?

The Regular Second Appeal filed by the third plaintiff/Appellant is dismissed.

Thazhathuveettil Gangadharan Nair Vs Krishnan Nair — Partition | Kerala HC (2024)

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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 M.A.ABDUL HAKHIM

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THURSDAY, THE 18^TH DAY OF JULY 2024 / 27TH ASHADHA, 1946

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RSA NO. 491 OF 2023

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AGAINST THE JUDGMENT DATED 29.11.2022 IN AS NO.8 OF 2022 OF ADDITIONAL DISTRICT

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COURT KOZHIKODE- II

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ARISING OUT OF THE ORDER DATED 07.10.2021 IN FDIA NO.246 OF 2014 IN

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O.S.NO.122/2012 OF SUB COURT, QUILANDY

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APPELLANT/APPELLANT IN A.S./3RD PETITIONER IN FDIA/3RD PLAINTIFF IN O.S.:

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THAZHATHUVEETTIL GANGADHARAN NAIR

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AGED 75 YEARS

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S/O. LATE NANI AMMA, AMBADI HOUSE, KODAKKALU, ATHOLY, KOYILANDY TALUK, KOZHIKODE -, PIN - 673315

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BY ADVS. R.PARTHASARATHY B.KRISHNAN

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RESPONDENTS/APPELLANT IN A.S./PETITIONERS 1, 4 TO 9 & RESPONDENTS 2 TO 12 IN

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FDIA/PLAINTIFFS 1, 4 TO 9 & 2 TO 12 IN O.S:

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1 KRISHNAN NAIR AGED 92 YEARS

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S/O. LATE NANI AMMA, KALAKAPPARA HOUSE, MEENANGADI, SULTHAN BATHERY, WAYANAD -, PIN - 673591

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2 PADMAVATHI AMMA AGED 78 YEARS W/O. LATE MADHAVAN NAIR, POOVANPOYIL HOUSE, KOLAKKAD P.O., EDAKKARA AMSOM, KOLAKKAD DESOM, KOYILANDY TALUK, KOZHIKODE -, PIN - 673315

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3 JAYARAJAN AGED 57 YEARS S/O. LATE MADHAVAN NAIR, POOVANPOYIL HOUSE, KOLAKKAD P.O., EDAKKARA AMSOM, KOLAKKAD DESOM, KOYILANDY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER PADMAVATHI AMMA, W/O. LATE MADHAVAN NAIR, POOVANPOYIL HOUSE, KOLAKKAD P.O., EDAKKARA AMSOM, KOLAKKAD DESOM, KOYILANDY TALUK, KOZHIKODE -, PIN - 673315

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RSA NO. 491 OF 2023

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4 SUNITHA AGED 54 YEARS

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D/O. LATE MADHAVAN NAIR, POOVANPOYIL HOUSE, KOLAKKAD P.O., EDAKKARA AMSOM, KOLAKKAD DESOM, KOYILANDY TALUK, KOZHIKODE -, PIN - 673315

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5 OMANA

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AGED 68 YEARS

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W/O. LATE KUMARAN NAIR, KRIPA HOUSE, MUYIPPOTH, KOYILANDY TALUK, KOZHIKODE -, PIN - 673524

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6 PRASEETHA

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AGED 48 YEARS

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D/O. LATE KUMARAN NAIR, KRIPA HOUSE, MUYIPPOTH, KOYILANDY TALUK, KOZHIKODE -, PIN - 673524

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7 PRAVEEN

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AGED 41 YEARS

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S/O. LATE KUMARAN NAIR, KRIPA HOUSE, MUYIPPOTH, KOYILANDY TALUK, KOZHIKODE -, PIN - 673524

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8 KARUNAKARAN NAIR

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S/O. LATE NANI AMMA, THAZHATHUVEETTIL, EDAKKARA AMSOM, KOLAKKAD DESOM, KOYILANDY TALUK, KOZHIKODE -, PIN - 673315

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9 SOBHANA AGED 57 YEARS

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W/O. PADMANABHAN NAIR, AARANDA HOUSE, PUNNASSERY, KOZHIKODE -, PIN - 673585

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10 JOSHNA

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AGED 39 YEARS

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D/O. PADMANABHAN NAIR, AARANDA HOUSE, PUNNASSERY, KOZHIKODE -673585

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11 JINOOP AGED 37 YEARS

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S/O.PADMANABHAN NAIR, AARANDA HOUSE, PUNNASSERY, KOZHIKODE -, PIN - 673585

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12 VIMALA O.K AGED 64 YEARS

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W/O. KESAVADAS, D/O. RAMAN NAIR, KAVIL HOUSE, THOMATTUCHALIL, AMBALAVAYAL, WAYANAD -, PIN - 673593

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13 VINOD O.K AGED 58 YEARS S/O. RAMAN NAIR, VENGAMVETTA HOUSE, KOLAGAPPARA, MEENANGADI, WAYANAD -, PIN - 673591

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RSA NO. 491 OF 2023

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14 SREENIVASAN O.K., AGED 47 YEARS S/O. RAMAN NAIR, VENGAMVEETTA HOUSE, KOLAGAPPARA, MEENANGADI, WAYANAD -, PIN - 673591 15 SUJATHA O.K AGED 52 YEARS W/O. SUNIL KUMAR, D/O. RAMAN NAIR, KOTTARATHIL HOUSE, SEETHAMOUNT P.O., PULPALLY, WAYANAD -, PIN - 673579 16 ANITHA VALSAKUMAR, AGED 56 YEARS W/O. SREEVALSAKUMAR, VENGAMVETTA HOUSE, KOLAGAPPARA, MEENANGADI, WAYANAD -, PIN - 673591 17 SHELJA AGED 34 YEARS D/O. SREEVALSAKUMAR, VENGAMVETTA HOUSE, KOLAGAPPARA, MEENANGADI, WAYANAD -, PIN - 673591 18 SRAVYAJA AGED 30 YEARS D/O. SREEVALSAKUMAR, VENGAMVETTA HOUSE, KOLAGAPPARA, MEENANGADI, WAYANAD, PIN - 673591 19 SMT. SEEMANTHINI AMMA AGED 75 YEARS W/O. LATE O.K. SANKARAN NAIR, VALIYA PARAMBIL HOUSE, NANMINDA P.O., NANMINDA AMSOM, DESOM, KOZHIKODE -, PIN - 673613 20 SMT. JAYISHA, AGED 50 YEARS D/O. LATE O.K. SANKARAN NAIR, VALIYA PARAMBIL HOUSE, NANMINDA P.O., NANMINDA AMSOM, DESOM, KOZHIKODE -, PIN - 673613

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21 VINOD KUMAR, AGED 48 YEARS S/O. LATE O.K. SANKARAN NAIR, VALIYA PARAMBIL HOUSE, NANMINDA P.O., NANMINDA AMSOM, DESOM, KOZHIKODE -, PIN - 673613 BY ADVS. REEHA KHADER K RAJESH V.NAIR IRFAN KAMAL K.M.(K/2029/2023)

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA NO. 491 OF 2023

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JUDGMENT

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This Regular Second Appeal is filed by the third plaintiff, who is the third petitioner in Final Decree Application No.246/2014 in O.S.No.122/2012 of Sub Court, Koyilandy, challenging the final decree passed by the Trial Court and confirmed by the First Appellate Court.

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In O.S.No.122/2012, a preliminary decree was passed on 29.11.2013, dividing the plaint schedule properties consisting of six items of properties. In the final decree proceedings, the court below appointed an advocate commissioner to effect division of the property as per the preliminary decree and the advocate commissioner filed Ext.C1 report and Exts.C1(a) to C1(c) plans and the Trial Court passed a Final Decree dated 30.11.2015.

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The third plaintiff/third petitioner in FDA had filed A.S.No.8/2018 before the First Appellate Court challenging the final decree dated 30.11.2015 and the First Appellate Court passed judgment in A.S.No.8/2018 setting aside the final decree to the extent of allocation of plots as per Exts.C1(b) plan and remanding the matter back to the Sub Court for fresh

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RSA NO. 491 OF 2023

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consideration and disposal, directing the Trial Court to make allotment of plots in Ext.C1(b) plan to the parties after giving an opportunity to both sides to adduce evidence.

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Thereafter the third plaintiff was examined as PW1 and the second defendant was examined as RW1. The Trial Court again passed a final decree dated 07.10.2021 confirming the allotment as per Ext.C1(b) plan. Though the third plaintiff filed an appeal before the First Appellate Court, it was dismissed.

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I heard the learned counsel for the appellant, Sri.R.Parthasarathy and the learned counsel for the respondent Nos.1, 9 to 12 and 14 to 21, Sri.Irfan Kamal K.M.

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The learned counsel for the appellant submitted that plot No.F allotted to the third plaintiff is an interior plot in which a burial ground and Nagakotta is situated; that the same has been remaining as a trench on account of removal of laterite stones; that the value of the same is lesser when compared to the value of the other plots; that the entire property of 81.68 cents was valued at the same rate; that the value of house situated in plot 'C' allotted to the second defendant is fixed on a lesser amount than the actual; that considering the value of the properties the owelty paid is also on the lower side; that only bottle neck

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RSA NO. 491 OF 2023

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access to plot 'F', whereas, the other plots are having road frontage.

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The learned counsel for the respondent Nos.1, 9 to 12 and 14 to 21 submitted that since the entire plot covered by Ext.C1(b) has only an extent of 81.68 cents and the same is to be divided into 8 plots, providing ways to each of the plots, the Advocate Commissioner has done the division in a most practical manner. There is not much difference in the extent between plot 'C' and 'F'; that the plot 'F' is not an inferior one; and that no other parties other than the third plaintiff, objected to Ext.C1(b) Plan.

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It is seen from the remand order passed by the First Appellate Court in A.S.No.8/2018 that the remand is made only for the allocation of plots as per Ext.C1(b) plan. The contention of the third plaintiff is that there is a big trench on the western side of plot 'F' and a Nagakotta on the southern side. But in Ext.C1 Report, the same is not stated. If such negative aspects were there for plot 'F', the third plaintiff could have pointed out that said facts to the Advocate Commissioner while inspecting the property and requested him to fix a lesser value, but it is not done.

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Another grievance of the third plaintiff is against allotment of 'C'

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RSA NO. 491 OF 2023

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plot having larger area to the second defendant. When the extents of 'C' plot and 'F' plot are considered, there is no much difference. The extent of 'C' plot is 11.57 cents, whereas the extent of plot 'F' is 10.86 cents. It is true that the 'C' plot is having road frontage and 'F' plot is having only an opening for access. I find from Ext.C1(b) plan that plot 'G' is also has an opening for access and does not have any road frontage. When a plot of 81.68 cents is divided, there would be small variations in the extent to divide the plots in a practical manner. Going by the small difference in the extent between plots ‘C’ and ‘F’, I find that there could not be any substantial grievance for the third plaintiff with respect to that.

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10.With respect to the value of the house in ‘C’ plot, the third plaintiff has not adduced any evidence to show that the value of Rs.97,475.625 arrived at by the Advocate Commissioner is on the lower side.

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11.With respect to the owelty, it is not a matter to be considered by the Trial court going by the limited remand made by the First Appellate Court in A.S.No.8/2018.

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12.That apart, except the third plaintiff, no other party has raised any dispute regarding the allocation of plots as per Ext.C1(b)

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RSA NO. 491 OF 2023

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plan.

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13.In the light of the aforesaid facts, I do not find any merit in this Regular Second appeal. Accordingly, the same is dismissed.

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Sd/-

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M.A.ABDUL HAKHIM JUDGE

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Shgxx

Thazhathuveettil Gangadharan Nair v. Krishnan Nair

Case brief

What is this about?

What did the court decide?

Thazhathuveettil Gangadharan Nair v. Krishnan Nair

Case brief

What is this about?

What did the court decide?

What the court decided

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