Kerala High Court
Kuniyil Kanakavalli vs Balambika K on 17 October, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
2024:KER:77050
RFA NO. 322 OF 2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
RFA NO. 322 OF 2013
AGAINST THE ORDER DATED 05.12.2012 OF THE SUB JUDGE,
VADAKARA IN FD.I.A.650/2009 IN OS NO.36 OF 2008
APPELLANT/DEFENDANT:
KUNIYIL KANAKAVALLI
AGED 50 YEARS
W/O. VENUGOPAL, SWASTHAM, RESIDING AT KUNNATH
KANDIYIL, PUTHUPPANAM AMSOM DESOM, P.O.,
PUTHUPPANAM, VATAKARA TALUK, KOZHIKODE DISTRICT.
BY ADVS.
SRI.NAVEEN.T
SRI.S.SHIBU
RESPONDENT/PLAINTIFF:
BALAMBIKA K.
AGED 45 YEARS
W/O. RAGHAVAN, SWASTHAM, RESIDING AT CHERIYAVIYIL,
IRINGAL AMSOM, DESOM, P.O.KOTTAKKAL, KOYILANDY
TALUK, KOZHIKODE DISTRICT.
BY ADVS.
SRI.B.KRISHNAN
SRI.R.PARTHASARATHY
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RFA NO. 322 OF 2013
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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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RFA NO. 322 OF 2013
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T.R. RAVI, J.
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RFA. No. 322 of 2013
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Dated this the 17th day of October, 2024
JUDGMENT
The appeal has been filed against the order dated
05.12.2012 in FD.I.A.No.650 of 2009 in O.S.No.36/2008 of
the Sub Court, Vadakara. The properties originally belonged
to one Sarada who had executed a 'Will' in favour of the
appellant and the respondent. The respondent filed a suit for
partition and the partition was decreed directing allotment of
equal share between the appellant and the respondent in the
properties. Ext.A schedule are immovable properties of an
extent of 24.54 cents with a residential house and Ext.B
schedule properties are movables.
2. In the final decree proceedings, the court had
appointed a Commissioner and the Commissioner has
submitted a report. The question of equity and reservation
had been relegated to the final decree stage. Both sides did
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not adduce any evidence in the final decree proceedings. The
Commissioner reported that B schedule movables are not
available for partition. The Commissioner prepared a plan
dividing the A schedule into seven plots and numbered the
plots as A to G. The plot C where the house was situated was
allotted to the share of the appellant/defendant who was
residing there.
3. The respondent filed I.A.No.78/2011 for
remitting the Commissioner's report and the same was
dismissed as not pressed. The appellant had filed
I.A.No.84/2011 for remitting the report and plan to the
Commissioner. Though several adjournments were given the
appellant did not appear and the petition was hence posted
for hearing along with the final decree application. Since no
evidence was adduced in support of I.A.No.84 of 2011 the
same was also dismissed. At the time of final argument, the
counsel for the appellant submitted that the residential
building is situated in plot A and the septic tank attached to
the same is situated in plots G and F. A request was hence
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made that plots G and F may be allotted to the appellant
instead of plot C as suggested by the Commissioner. The
court below found that no evidence was adduced in support
of the above submission and the Commissioner had also not
reported the existence of any septic tank in plots G and F.
The court below, hence, did not accept the said contention.
The court also noticed that in the counter affidavit of
I.A.No.84 of 2011, the respondent has specifically denied the
above said claim. In the above circumstances, the court
accepted the Commissioner's report and passed the final
decree. As per the final decree which is in terms of the
Commissioner's report, plots A and C were allotted to the
share of the appellant/defendant and plots B, D, E, F and G
were allotted to the share of the respondent/plaintiff. There
was also a direction to the appellant/defendant to pay an
amount of Rs.84,547/- to the respondent/plaintiff for
equalisation of shares. The court further ordered that the
owelty amount shall remain as a charge over the share
allotted to the appellant.
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4. Heard the counsel for the appellant and the
respondent.
The case of the appellant is that the court below
ought to have allotted plots G and F to the
plaintiff/respondent for facilitating them to reside in the
building allotted to them with all the existing conveniences. It
is also submitted that the direction to pay the owelty amount
is also not justified. The counsel for the respondent further
submitted that both sides have laid claim for the residential
house and it was found that it was not possible to divide the
house. The respondent had given up their claim for the
residential house. Having gone through the records and
having finally heard the arguments, I find that there is
nothing wrong in the course of action adopted by the trial
court. The fact that despite several opportunities, the
appellant did not adduce any evidence in I.A.No.84 of 2011,
is not disputed. However, it is also admitted that neither side
tendered any evidence and all that was available before the
court was the Commissioner's plan and report. It is seen that
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a clear report had been given by the Commissioner regarding
equalisation of the shares. In the above circumstances, so
long as the appellant had not adduced any evidence in
support of his contentions before the trial court, no
interference is called for in this appeal. The appeal fails and
is dismissed. The appeal has been pending before this court
for the last 11 years. The court had directed the payment of
owelty on 05.12.2012. The appellant is continuing the
possession of the entire property. In the above
circumstances, it is only fair that the final decree is modified
as far as the owelty amount is concerned, directing the
appellant to pay the sum of Rs.84,547/- as ordered above for
the purpose of equalisation of the shares, with interest at the
rate of 9% per annum from 05.12.2012 till the date of
payment.
Sd/-
T.R.RAVI
JUDGE
LEK
