Kerala High Court
Nafeesu vs Kadavath Kunhimuhammed on 4 February, 2025
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RFA NO.252 OF 2018
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 4TH DAY OF FEBRUARY 2025 / 15TH MAGHA, 1946
RFA NO. 252 OF 2018
AGAINST THE ORDER DATED 24.01.2018 IN FINAL DECREE
I.A.NO.701/2011 IN OS NO.67 OF 2007 OF SUB COURT, TIRUR
APPELLANTS/RESPONDENTS 1, 3, 4 AND 5/DEFENDANTS 1, 3, 4
AND 5:
1 NAFEESU
AGED 63 YEARS, W/O.KOLAMBIL MOHAMMED,
TRIPRANGODE AMSOM, KARATHUR DESOM,
POST TRIPRANGODE, TIRUR TALUK,
MALAPPURAM DISTRICT.
2 NAUSIYA
AGED 35 YEARS, D/O.KOLAMBIL MOHAMMED,
TRIPRANGODE AMSOM, KARATHUR DESOM,
POST TRIPRANGODE, TIRUR TALUK,
MALAPPURAM DISTRICT.
3 JASMINE
AGED 33 YEARS, D/O KOLAMBIL MOHAMMED,
TRIPRANGODE AMSOM, KARATHUR DESOM,
POST TRIPRANGODE, TIRUR TALUK,
MALAPPURAM DISTRICT.
4 MUSARATH
AGED 30 YEARS, D/O.KOLAMBIL MOHAMMED,
TRIPRANGODE AMSOM,KARATHUR DESOM,
POST TRIPRANGODE, TIRUR TALUK,
MALAPPURAM DISTRICT.
BY ADV SRI.C.M.MOHAMMED IQUABAL
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2
RESPONDENTS/PETITIONER & RESPONDENTS 2 AND 6 TO
11/PLAINTIFF & DEFENDANTS 2 AND 6 TO 11:
1 KADAVATH KUNHIMUHAMMED
AGED 61 YEARS, S/O KOYASAN HAJI,
TRIKANDIYUR AMSOM DESOM, POST TRIKANDIYUR,
TIRUR TALUK,MALAPPURAM DISTRICT, PIN-676104.
2 NAUSHAD
AGED 38 YEARS, S/O.KOLAMBIL MOHAMMED,
TRIPRANGODE AMSOM, KARATHUR DESOM,
POST TRIPRANGODE, TIRUR TALUK,
MALAPPURAM DISTRICT,PIN-676108.
3 KOLAMBIL SIDHIQUE
AGED 58 YRS, S/O.KOLAMBIL KUNHAHAMMED,
TRIPRANGODE AMSOM, POYILISSERY DESOM,
POST POYILISSERY, TIRUR TALUK,
MALAPPURAM DISTRICT, PIN-676102.
4 IBRAHIM
AGED 63 YRS, S/O KOLAMBIL KUNHAHAMMED,
TRIPRANGODE AMSOM, POYILISSERY DESOM,
POST POYILISSERY, TIRUR TALUK,
MALAPPURAM DISTRICT,PIN-676102.
5 SAFIYA BEEGUM RAHIM KHAN
W/O.MUHAMMED,POST BOX NO.1441,
MASOUDI,AL-AIN,UAE.
6 SHAMMA MUHAMMED
D/O MUHAMMED,POST BOX NO.1441,
MASOUDI,AL-AIN,UAE.
7 HANAN MUHAMMED KOLAMBIL
S/O MUHAMMED,POST BOX NO.1441,
MASOUDI,AL-AIN,UAE.
8 KULOOD MUHAMMED KOLAMBIL
S/O MUHAMMED,POST BOX NO.1441,
MASOUDI,AL-AIN,UAE.
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3
BY ADVS.
JAMSHEED HAFIZ FOR R1
K.K.NESNA FOR R1
P.ABDUL NISHAD FOR R2 TO R4
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 04.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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4
JUDGMENT
Dated this the 4th day of February, 2025
Respondents 1, 3, 4 and 5 in FDIA.No.701/2011,
who are defendants 1, 3, 4 and 5 in O.S.No.67/2007 on the
files of the Sub Court, Tirur, assail final decree and judgment
dated 24.01.2018 passed therein. The respondents are
plaintiff and defendants 2 and 6 to 11.
2. Heard the learned counsel for the
appellants and the learned counsel appearing for the first
respondent in detail.
3. The parties in this appeal shall be referred
with reference to their status before the trial court for easy
reference.
4. In this matter, the plaintiff is none other than
a person, who purchased 14 undivided shares out of 192
shares belonging to the 2nd defendant in another suit for
money filed against him in a court auction. Thereafter, he
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filed suit for partition for getting separate possession of the
said shares. As on 10.12.2010 preliminary decree was
passed and thereafter the present application at the instance
of the plaintiff was filed to pass final decree.
5. The trial court appointed a Commissioner to
prepare a plan to effectuate partition by metes and bounds.
Initially, Ext.C1 report and Ext.C2 plan were submitted by the
Commissioner, against which I.A.No.308/2015 had been filed
by defendants 1, 3, 4 and 5. The trial court considered the
contentions in I.A.No.308/2015 and remitted back Exts.C1
and C2 to the Commissioner, directing as under:
"1. Commissioner is directed to provide 8 feet width
way to the plot, set apart to the share of final
decree petitioner.
2. Commissioner is directed to assess the value of
the property at the rate of the market value
shown in the plaint.
3. The Commissioner has to specify how the value
of the house is assessed and if necessary the
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Commissioner can seek the assistance of an
expert to assess the value of the house."
6. Thereafter, the Commissioner filed fresh
report and the same got marked again as Exts.C1 and C2.
Challenging the fresh report also, defendants 1, 3, 4 and 5
filed I.A.No.1436/2017 with prayer to remit back the same to
the Commissioner for the purpose of effecting partition of the
property again and to prepare a fresh plan. The same was
opposed by the plaintiff. The trial court disallowed the petition
and accepted the fresh report and accordingly, final decree
was passed as under:
"1) Plot A in Ext.C-2 plan is hereby allotted to the
petitioner.
2) Respondents shall pay Rs.73,347/- to the
petitioner by way of equalisation of shares and
there will be a charge for the said sum on the
respondents' property.
3) The schedule description of plot A appended to
Ext.C-1 report and Ext.C-2 plan shall form part
of an shall be annexed with final decree.
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4) The final decree shall be engrossed on stamp
papers at the prevailing rate.
5) The petitioner is entitled to get the cost in the
final decree proceedings."
7. While assailing the legality of Exts.C1 and
C2 which were challenged as per I.A.No.1436/2017, the
learned counsel for defendants 1, 3, 4 and 5 submitted that
the present Ext.C1 report and Ext.C2 plan were not prepared
as per the direction issued in I.A.No.308/2015 and it is
specifically pointed out by the learned counsel for
defendants 1, 3, 4 and 5 that even though it was directed, as
per order in I.A.No.308/2015, to specify how the value of the
house is assessed and if necessary, the Commissioner could
seek the assistance of expert to assess the value of the
house, the value of the building was assessed by the
Commissioner by himself. The learned counsel for
defendants 1, 3, 4, and 5 submitted further that no expert
assistance was sought for by the Commissioner, and the
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Commissioner, on finding that the building was constructed in
the year 1990, assessed its value by fixing Rs.650 per sqft
and arrived at Rs.9,47,786.50/- as the value of the building. It
is also pointed out by the learned counsel for defendant 1, 3,
4 and 5 that the assessment is so excessive and the
Commissioner ought to have opted for the assistance of an
expert to fix the value in stricto sensu in terms of the
directions issued in I.A.No.308/2015. Accordingly,
interference in the final decree impugned is pressed into.
8. Perusing the earlier order in
I.A.No.308/2015, the first direction was to provide 8 feet
width pathway to the plot to be set apart towards the share of
the plaintiff. In Ext.C2 plan, 8 feet width pathway is provided
after allotting 'A' plot towards the share of the plaintiff on the
extreme southern part on the south-west side after leaving
the other plot with road access as a compact plot including
the house and car shed overlapping therein for the other
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sharers. The Commissioner assessed the value of the
property towards other sharers at Rs.1,30,000/- per cent in
accordance with the market value as per the plaint
averments, though he fixed land value for the property
allotted to the plaintiff at the rate of Rs.1 lakh per cent. In fact
the Commissioner complied condition No.1 as per order in
I.A.No.308/2015.
9. According to the learned counsel for
defendants 1, 3, 4 and 5, while fixing the market value at the
rate of Rs.1,30,000/- the property allotted to the plaintiff is
shown as property having a value of Rs.1 lakh. According to
the learned counsel for defendant 1, 3,4 and 5, the same is
not proper assessment by following the principles of equity.
Whereas the learned counsel for the plaintiff justified the
same on the submission that the plot allotted to the plaintiff is
on the extreme back side of the entire property without any
direct road access. Thus the value is reasonably reduced. In
this case, it is discernible that the share entitled to by the
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plaintiff is only 14/192. After litigating for the same starting
from the year 1998 (year of the earlier suit), for getting
separate shares, ultimately, as a feasible methodology, 2.49
cents located as plot 'A' in Ext.C2 plan is set apart towards
the share of the plaintiff after providing 8 ft width pathway
starting from the public road on the northern side abutting the
entire property as directed in I.A.No.308/2015. Therefore, it
could not be held that fixing the value of Rs.1 lakh as the
market value of the property allotted to the plaintiff, which has
no direct road access, is in any way without following the
principles of equity. Therefore, the said challenge would fail
and thus the Commissioner complied the second direction
also.
10. Coming to the third challenge, as per the
direction issued in I.A.No.308/2015, there was direction to
specify how the value of the house would be assessed and if
necessary, the Commissioner was given the option to seek
assistance of an expert. But there was no specific direction to
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seek the assistance of an expert and defendants 1,3,4 and
5/appellants were not challenged the said direction.
Therefore, while preparing Exts.C1 and C2, the
Commissioner did not seek assistance of an expert and on
gathering knowledge that the house was constructed in the
year 1990, the plinth area of the house would come to
1441.25 sqft and the same was made of bricks, the
Commissioner fixed Rs.650/sqft and thus arrived at
Rs.9,36,786.50 as the total value and thereafter, Rs.8,000/-
was added towards the value of compound wall and
Rs.3,000/- was added towards the value of gate and thus, a
total sum of Rs.9,47,786.50 was arrived. According to the
learned counsel for defendant 1, 3,4 and 5, the value as far
as the house is concerned, is on higher side and therefore,
allowing I.A.No.1436/2017 , Exts.C1 and C2 shall be remitted
back to the Commissioner to re-assess the value with the aid
of an expert. As I have already pointed out, in this matter, the
trial court did not specifically direct the Commissioner to
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measure the property with the assistance of an expert. But
he was given an option to do the same. Anyhow, after
measuring the plinth area of the house as 1441.25 sqft, the
Commissioner calculated the same at the rate of Rs.650/sqft.
In fact, even though the Commissioner did not seek
assistance of an expert, fixing Rs.650/sqft as on 2017 as the
cost of the building is not on the higher side as submitted by
the learned counsel for the plaintiff. That apart, here the
extent of the land is only 28.86 cents and the share entitled
by the petitioner separately is 14/192. Therefore, minimizing
the land which could be utilised by the petitioner to an extent
of 2.49 as plot A allotted on the extreme south-west. In the
matter of allotment of shares, the same has to be done by
applying the principles of equity. In the instant case, the
house having a plinth area of 1441.25 occupying the central
part of the entire plot, a car-shed overlapping on the east-
south corner with direct road access were excluded from the
share of the plaintiff and accordingly, it seems that the
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Commissioner practically allotted share to the plaintiff
considering the feasibility and following the equity principle.
Therefore, there is no reason to interfere with the said
finding. Accordingly, the trial court rightly relied on Exts.C1
and C2 report and plan to pass final decree and therefore,
Exts.C1 and C2 and the final decree under challenge do not
deserve any interference.
11. Although the learned counsel for defendants
1, 3, 4 and 5 canvassed to preserve the 8 feet width way as
common way, the said prayer was strongly opposed by the
learned counsel for the plaintiff. In fact as per Ext.C2 plan, it
is vivid that except plot 'A' allotted to the plaintiff, the
remaining property is having road frontage and therefore,
there is no reason to keep the 8 feet width way provided to
the plaintiff as common. Thus the said prayer also is
disallowed.
12. In the result, this regular first appeal stands
dismissed.
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All interlocutory orders stand vacated and all
interlocutory applications, if any, pending in this regular first
appeal stand dismissed.
Registry is directed to forward a copy of this
judgment to the jurisdictional court for information and further
steps.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
