A.P.Jafri vs Kurikkalakath Pallivalappil ...
2021 Latest Caselaw 1268 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

WEDNESDAY, THE 13TH DAY OF JANUARY 2021/23TH POUSHA, 1942

                      RSA.No.134 OF 2020

          AGAINST THE DECREE & JUDGMENT IN AS 34/2016
             DATED 25-06-2019 OF SUB COURT, KANNUR

 FDIA No.3043/2012 IN O.S.No.282/2011 DATED 30-07-2013 OF
           ADDITIONAL MUNSIFF'S COURT, KANNUR


APPELLANT/APPELLANT/DEFENDANT No.2:

              A.P.JAFRI,
              S/O.ABDULLA,
              AGED 44 YEARS,
              JASEENA MANZIL, NEAR PALLI, P.O.CHIRAKKAL,
              KANNUR-670 011.

              BY ADVS.
              SRI.ABDUL RAOOF.P.
              SRI.K.R.AVINASH

RESPONDENTS/PETITIONER & R1, 3 TO 7/PLAINTIFF & D1, 3 TO 7:

      1       KURIKKALAKATH PALLIVALAPPIL SUBAIDA,
              AGED 54 YEARS,
              D/O.MARIYUMMA, CHIRAKKAL AMSOM, DESOM,
              KUNNINU THAZHE, PUTHIYATHERU, KANNUR-670 011.

      2       A.P.SUBAIDA,
              AGED 61 YEARS,
              W/O.ABDULLA, JASEENA MANZIL, NERA MOSQUE,
              CHIRAKKAL, KANNUR-670 011.

      3       A.P.JALEEL,
              AGED 42 YEARS,
              S/O.A.P.SUBAIDA, CHIRAKKAL AMSOM, DESOM,
              KUNNINU THAZHE, PUTHIYATHERU, KANNUR-670 011.
 R.S.A.No.134 of 2020


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       4      A.P.JASEEL,
              AGED 40 YEARS,
              S/O.A.P.SUBAIDA,
              CHIRAKKAL AMSOM, DESOM,
              KUNNINU THAZHE, PUTHIYATHERU, KANNUR-670 011.

       5      A.P.JASEETHA,
              AGED 38 YEARS,
              D/O.A.P.SUBAIDA,
              CHIRAKKAL AMSOM, DESOM,
              KUNNINU THAZHE, PUTHIYATHERU, KANNUR-670 011.

       6      A.P.JAHAS,
              AGED 36 YEARS,
              S/O.A.P.SUBAIDA,
              CHIRAKKAL AMSOM, DESOM,
              KUNNINU THAZHE, PUTHIYATHERU, KANNUR-670 011.

       7      A.P.JAMEES,
              AGED 27 YEARS,
              S/O.A.P.SUBAIDA,
              CHIRAKKAL AMSOM, DESOM,
              KUNNINU THAZHE, PUTHIYATHERU, KANNUR-670 011.


     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 11-01-2021, THE COURT ON 13-01-2021 DELIVERED THE
FOLLOWING:
 R.S.A.No.134 of 2020


                                  ..3..




                            JUDGMENT

The appellant is the 2nd defendant in

O.S.No.282/2011 on the file of the Additional Munisff's

Court, Kannur (hereinafter referred to as 'the trial court')

and the appellant in A.S.No.34/2016 on the file of the Sub

Court, Kannur (hereinafter referred to as 'the first

appellate court'). The parties are hereinafter referred to as

the plaintiff and defendants as in the trial court unless

otherwise stated.

2. The 2nd defendant is the appellant. The

plaintiff/1st respondent instituted the above suit for

partition. The trial court passed a preliminary decree

among the co-owners. On the strength of the preliminary

decree, the plaintiff/1st respondent filed final decree

application before the trial court. The trial court passed a

final decree on 30.07.2013.

R.S.A.No.134 of 2020

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3. Assailing the judgment and decree passed by

the trial court, the 2nd defendant preferred

A.S.No.34/2016 before the first appellate court. The

appeal was dismissed confirming the decree and judgment

passed by the trial court.

4. The concurrent findings are sought to be

assailed in this R.S.A. The first appellate court after re-

appreciating the pleadings and materials on record, by the

impugned judgment confirmed the judgment and decree

of the trial court.

5. It is challenging the concurrent findings of the

trial court, the plaintiff is before this Court in second

appeal.

6. Heard the learned counsel for the appellant

Sri.K.R.Avinash.

7. The learned counsel appearing for the appellant

contended that in a partition suit concerning small extent R.S.A.No.134 of 2020

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of property consisting a shop room with common wall, the

equity does not warrant allotment to the major sharer the

whole of the said estate. It is further contended that it is

for the court to examine the legitimate claim of equity.

According to the learned counsel for the appellant, when a

co-owner in partition suit urges that he should be given

separate allotment as far as practicable by paying court

fee for separate allotment, it is fair on the part of the final

decree court to grant allotment to him exclusively.

8. In the case at hand, a preliminary decree for

partition was passed on 19.6.2012. The property was

ordered to be divided by metes and bounds into 10 equal

shares. It is evident that the shares due to all the sharers

were declared by the court. In accordance with the

preliminary decree, the plaintiff filed an application to

pass a final decree. In the final decree proceedings, the

trial court appointed an Advocate Commissioner and R.S.A.No.134 of 2020

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Surveyor. The Advocate Commissioner and the Surveyor

conducted the inspection of the building and filed a report.

The share allotted to the appellant comprises of the

corresponding area of the building in the first floor. Based

on the above factual situation, the 2 nd defendant

contended that the entire building ought to have been

allotted to his share. Both the trial court and the appellate

court concurrently held that though the appellant/2 nd

defendant appeared before the trial court, he did not file

any objection to the report and plan. Going by the entire

facts and circumstances, it is clear that the plaint schedule

property is available for partition. However, the quantum

of shares mentioned in the plaint is clearly disputed by the

defendants by filing written statements wherein it is

stated that the 2nd defendant had already purchased the

undivided share of defendants 8 to 10 by virtue of

jenmum assignment deed. As far as equity is concerned, R.S.A.No.134 of 2020

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both sides did not adduce oral or documentary evidence to

grant any kind of reservation or equity.

9. In view of the circumstances narrated above,

both the trial court and the appellate court concurrently

held that the equity pleaded and canvassed by one of the

co-owners without raising any objection to the partition

effected by the Advocate Commissioner is clearly

unsustainable. On an appreciation of the impugned

judgments and materials on record, this Court is of the

view that there are no questions of law involved in this

appeal, much less any substantial question of law.

Resultantly, the R.S.A. stands dismissed. Considering

the facts and circumstances, there will be no order as to

costs.

Sd/-

N.ANIL KUMAR, JUDGE skj