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THARA,W/O.SUDHAKRAN KOZHIPPARAMBIL versus SATHI,W/O.KOZHIPPARAMBIL VASUDEVAN

High Court of Kerala

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THARA,W/O.SUDHAKRAN KOZHIPPARAMBIL v. SATHI,W/O.KOZHIPPARAMBIL VASUDEVAN - RSA No. 541 of 2007(F) [2007] RD-KL 14516 (30 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 541 of 2007(F)

1. THARA,W/O.SUDHAKRAN KOZHIPPARAMBIL,
... Petitioner

2. VIJI,D/O.SUDHAKARAN, DO..DO.

3. JOSHY,S/O.SUDHAKARAN.

Vs

1. SATHI,W/O.KOZHIPPARAMBIL VASUDEVAN,
... Respondent

2. SHINOJ,S/O.KOZHIPPARAMBIL VASUDEVAN,

3. SHIJITH,DO..DO..

4. SHINE DO..DO...

For Petitioner :SRI.K.RAMACHANDRAN

For Respondent :SRI.R.LAKSHMI NARAYAN

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :30/07/2007

O R D E R

M.SASIDHARAN NAMBIAR, J.

........................................... R.S.A.No. 541 OF 2007 ............................................

DATED THIS THE 30TH DAY OF JULY, 2007



JUDGMENT

Additional defendants 3 to 5 who were impleaded as legal heirs of first defendant in O.S.439 of 1990 on the file of Munsiff Court, Chavakkad are the appellants. Respondents are the plaintiffs. A preliminary decree for partition was passed by the Munsiff on 24.3.2001. I.A. 4514 of 1997 was filed by the plaintiffs for passing of final decree in accordance with the preliminary decree. As per the revised final decree dated 30.6.2006, trial court accepted the division made by PW2, the Commissioner in Ext.C1 and C2. As per the final decree, plot C marked in Ext.C2 plan having an extent of 45 cents was alloted to plaintiffs. The remaining property was alloted jointly to the appellants. Towards equilisation of shares, defendants were directed to pay Rs.18,796/- to the plaintiffs. Appellants challenged the final decree before District Court, Thrissur in A.S.289 of 2006. Plaintiffs filed a cross objection, as the trial court omitted to provide for mesne profits. First appellate court confirmed the finding of the trial court regarding allotment made under Ext.C1 report and C2 plan. But finding that the RSA 541/2007 2 preliminary decree itself provides for payment of share of profits to plaintiffs, which was omitted to be taken note of at the time of passing of final decree. The report submitted by Commissioner fixing the quantum of share of profits at Rs.7966.75 was accepted. Learned District Judge allowed the cross objection and modified the final decree allowing the share of profits and dismissed the appeal. It is challenged in the second appeal.

2. Learned counsel appearing for the appellants and respondents were heard.

3. The argument of the learned counsel appearing for appellants is that the Commissioner has not properly identified the property, which is directed to be divided as per the preliminary decree, and evidence of the Commissioner as PW2 establish that commissioner has not identified the property in accordance with the kole measurements shown in the document and the property, which according to the Commissioner was found available, was divided and therefore the final decree is not sustainable. Learned counsel also argued that evidence of PW2 establish that value of the shares and the quantum of share of profits were fixed without taking into consideration the actual yield or value of the property and the value fixed was RSA 541/2007 3 unreasonable and should not have been accepted. It was pointed out that when apart from the National Highway, another way is also available to the property alloted to the plaintiffs as plot C, only National Highway is available to the properties alloted to the appellants and still Commissioner adopted the same value for both the properties. The argument is that value of the property having the advantage of a road and also a way should be more than the value of a property having only National High way on one side and therefore the direction to pay owelty amount is unsustainable. It was also pointed out that evidence of the Commissioner as PW2 establish that he did not take into consideration the yield of the trees or the value of the timber trees for fixing the value of the shares and in such circumstances the direction to pay owelty amount as well as quantum of share of profits are to be set aside and the final decree passed in accordance with the reports and plan are unsustainable.

4. Learned counsel appearing for respondents argued that though there is a way additionally available to plot C, plot B which was alloted to the appellants is also having a way on the southern side and the middle plot was alloted to the appellants along with the southern plot B as per their request and in such RSA 541/2007 4 circumstances all the plots have equal value and advantages. Learned counsel also argued that if the court finds that either the owelty amount directed to be paid or the quantum of share of profits is excessive, sufficient modification may be made so that the suit which was pending from 1990 onwards be disposed without further protraction.

5. On hearing learned counsel appearing for both sides, it is clear that unfortunately the Commissioner did not value the property properly. The report and the evidence of the Commissioner as PW2, which were made available by learned counsel appearing for appellants, establish that Commissioner has not taken into consideration neither the yield nor the nature of the tree or their timber value while fixing the value of the respective sharers to find out whether owelty amount is to be paid for equilisation of shares. So also comparitive advantages, due to the availability of an additional way to one of the plots apart from the common road available to all the plots was also not taken into consideration. Though it was forcibly argued that Commissioner has not properly identified the property and the Commissioner has divided only that property, which was found available, on the facts and circumstances of the case, I do not RSA 541/2007 5 find it necessary to interfere with the final decree on that ground. As per the final decree passed by the courts below, only plot C from the remaining properties found available was carved out and alloted to the plaintiffs. Whatever remains can be taken by respondents and plaintiffs do not claim any right over the remaining property. Therefore no interference is warranted on the ground.

6. But there is some force in the submission of learned counsel appearing for appellants with regard to quantum of share of profits fixed as well as the owelty amount. Courts below fixed owelty amount @ Rs.18,796/- based on the value of the trees and the land. Considering the evidence it is clear that the owelty amount was fixed without sufficient justifiable data. Anyway if it is to be interfered, some arbitrariness may have to be shown. As the commissioner has also fixed the owelty amount on such arbitrary manner. In order to avoid further protraction of the case and agony to the parties, the owelty amount fixed is reduced to Rs.9000/- which is to be paid by the appellants towards equalisation of sharers to the plaintiffs. So also Commissioner has fixed Rs.7966.75 per annum as share of profits, which the plaintiffs are entitled to as per the preliminary RSA 541/2007 6 decree. Though original final decree passed by the trial court omitted to provide for payment of share of profits but in view of the unsatisfied nature of fixation of share of profits, the share of profits fixed by courts below is reduced to Rs.7000/- per annum and it is limited from 24.3.2001, the date of preliminary decree.

7. Therefore appeal is disposed confirming the final decree with the following modifications. The direction to pay owelty amount is reduced to Rs.9000/-. The share of profits payable by appellants is Rs.7000/- per annum and it is to be paid from 24.3.2001, till this day and for three years from today or till plaintiffs take delivery of plot C, alloted to them under the final decree.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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