Kerala High Court
Nafeesu vs Kadavath Kunhimuhammed on 4 February, 2025
2025:KER:9377
RFA NO.252 OF 2018
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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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RFA NO.252 OF 2018
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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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RFA NO.252 OF 2018
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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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RFA NO.252 OF 2018
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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 2025:KER:9377 RFA NO.252 OF 2018 5 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 2025:KER:9377 RFA NO.252 OF 2018 6 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 2025:KER:9377 RFA NO.252 OF 2018 8 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 2025:KER:9377 RFA NO.252 OF 2018 9 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 2025:KER:9377 RFA NO.252 OF 2018 10 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 2025:KER:9377 RFA NO.252 OF 2018 11 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 2025:KER:9377 RFA NO.252 OF 2018 12 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 2025:KER:9377 RFA NO.252 OF 2018 13 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.
2025:KER:9377 RFA NO.252 OF 2018 14 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