Kerala High Court
Mrs. Reeta Joseph vs Miss. Isabella (Deceased) on 12 November, 2012
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934
RFA.No. 890 of 2010 ( )
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I.A. NO. 1284/2004 IN OS.NO. 591/1990 OF II ADDL.SUB COURT, ERNAKULAM
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APPELLANT :
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1. MRS. REETA JOSEPH, AGED 57,
W/O. LATE JOSEPH V. MOOTHADAN,
RESIDING AT OLD RAILWAY STATION ROAD,
THRIKANARVATTOM DESOM, ERNAKULAM VILLAGE.
2. MRS. DEENU MOL, AGED 32,
D/O. LATE PAPPACHAN MOOTHADAN,
RESIDING AT OLD RAILWAY STATION ROAD,
THRIKANARVATTOM DESOM, ERNAKULAM VILLAGE.
3. MR. VAKKACHAN, AGED 32,
S/O. LATE PAPPACHAN MOOTHADAN,
RESIDING AT OLD RAILWAY STATION ROAD,
THRIKANARVATTOM DESOM, ERNAKULAM VILLAGE.
BY ADVS.SRI.VARGHESE C.KURIAKOSE
SRI.PRAVEEN K. JOY
RESPONDENT(S):
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1. MISS. ISABELLA (DECEASED),
D/O. LATE VARKEY MOOTHADAN.
2. MRS. ANNIE ANTONY, AGED
W/O. LATE ANTONY, MOOTHADAN HOUSE,
RESIDING AT OLD RAILWAY STATION ROAD,
THRIKANARVATTOM DESOM,
ERNAKULAM VILLAGE.
3. MRS. REETA DEVASY (DECEASED),
D/O. LATE VARKEY MOOTHADAN,
RESIDING AT KUNJAPPU HOUSE,
26/92, COOPERATIVE ROAD,
CHEMBUKKAVU VILLAGE, THRISSUR.
...2/-
RFA.No. 890 of 2010 ( ) -2-
4. MRS. ALPHONSA ANTONY,
D/O. LATE VARKEY MOOTHADAN,
RESIDING AT ASHISH, CHINOOLI ROAD,
PAWAN BAGH, 3RD FLOOR,
B, MALAD WEST, BOMBAY - 400 064.
5. POLSON @ VATTATHARA VAREED POLSON,
AGED 40, RESIDING AT 671 LOS TIAS,
DR. HOUSTON, TEXAS, 77083, USA,
S/O. KUNJAPPU MATHEW,
KUNJAPPU HOUSE, CHEMBUKKAVU VILLAGE,
THRISSUR.
6. ROSE POLSON, AGED 30,
W/O. POLSON, KUNJAPPU HOUSE,
CHEMBUKKAVU VILLAGE, THRISSUR.
7. K.M. DEVASY,
KUNJAPPU HOUSE,
CHEMBUKKAVU VILLAGE, THRISSUR.
8. MATHEW KUNJAPPU,
S/O. K.M. DEVASY, KUNJAPPU HOUSE,
CHEMBUKKAVU VILLAGE, THRISSUR.
9. K.J. ANTHONY,
S/O. KUNJAPPU JOSEPH,
CHITTILAPPILLY, FLAT NO. 21,
3RD FLOOR, B. ASHISH,
CHITTOLY, PAWAN BAGH ROAD,
B MALAD WEST, BOMBAY - 400 064.
R2 BY ADVS. SRI.P.C.IYPE
SRI.K.BIJU
SRI.GEORGE MECHERIL
SRI.CYRIAC IYPE
R4 TO R9 BY ADV. SRI.JIMMY JOHN VELLANIKARAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12-11-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
P.N.RAVINDRAN, J.
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R.F.A. No.890 OF 2010
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Dated this the 12thday of November, 2012
J U D G M E N T
The appellants are defendants 5, 6 and 7 in O.S.No.591 of 1990 on the file of the Court of the Subordinate Judge of Ernakulam. The suit was instituted by Miss.Isebella, D/o.late Varkey Moothedan for partition of the plaint A, B and C schedule properties and allotment of 11/60 shares in the plaint A schedule property, 6/60 shares in the plaint B schedule property and 6/60 shares in the plaint C schedule property to her. The plaintiff and defendants 2 to 4 in O.S.No.591 of 1990 are the daughters of late Varkey Moothedan and his wife late Kochumariam. Defendants 1 and 5 are their daughters-in-law and defendants 6 and 7 are their grandchildren. Late Varkey Moothedan and late Kochumariam had two sons namely Pappachan @ Joseph V.Moothedan and Antony Moothedan. The fifth defendant is the wife of Pappachan @ Joseph V.Moothedan and defendants 6 and 7 are their children. Pappachan @ Joseph V.Moothedan died on 7.10.1987 leaving behind defendants 5, 6 and 7 as his legal heirs. Antony Moothedan died on 11.9.1988 leaving behind the first defendant his wife, the plaintiff and defendants 2 to 4 as his legal heirs. It was alleged in the plaint that the plaint A schedule property belonged to RFA No.890/2010 2 late Kochumariam and the plaint B schedule property and the plaint C schedule deposits belonged to late Antony Moothedan. The plaintiff averred that on the death of Kochumariam, the plaint A schedule property devolved on her, defendants 2 to 4, Pappachan @ Joseph V.Moothedan and Antony Moothedan in equal shares and on the death of Antony Moothedan, half of his share over the plaint B and C schedule properties and half of his share in the plaint A schedule property devolved on his wife the first defendant and the other half devolved on the plaintiff and defendants 2 to 4. On these averments, the plaintiff prayed for partition and separate possession of 11/60 shares in the plaint A schedule property, 6/60 shares in the plaint B schedule property and 6/60 shares in the plaint C schedule property.
2. The first defendant filed a written statement admitting the plaint averments. She claimed partition and allotment of 11/60 shares in the plaint A schedule property, 30/60 shares in the plaint B schedule property and 30/60 shares in the plaint C schedule property. Defendants 2 to 4 also supported the plaintiff and contended that each of them is entitled to 11/60 shares in the plaint A schedule property, 6/60 shares in the plaint B schedule property and 6/60 shares in the plaint C schedule property. Defendants 5 to 7 filed a joint written statement. They admitted the relationship between the parties and the description of the plaint A, B and C schedule properties. They contended that other properties are also available for partition. They RFA No.890/2010 3 also contended that on the death of Kochumariam, the plaint A schedule property devolved on Pappachan @ Joseph V.Moothedan and Antony Moothedan and that the plaintiff and defendants 2 to 4 have no right over the plaint A schedule property. They further contended that the second defendant is nun and she is not entitled to any share in the property. As regards the first defendant (wife of late Antony Moothedan), it was contended that after the death of Antony Moothedan she had remarried and is residing with her husband. Defendants 5 to 7 raised a counter claim and contended that the movables set out in the D schedule and the amounts received by late Antony Moothedan by way of gratuity, provident fund and relief fund set out in the E schedule are also available for partition.
3. The trial court on an analysis of the evidence oral and documentary available in the case held that the entire plaint A, B and C schedule properties are available for partition. The trial court overruled the contention that the second defendant is not entitled to a share in the plaint scheduled properties. A preliminary decree was accordingly passed on 29.11.1993 directing division of the plaint A, B and C schedule properties. The trial court also directed the appointment of an Advocate Commissioner to ascertain whether the movables mentioned in the D schedule are available for partition and to fix its value. As regards the amounts mentioned in the E schedule, the trial court directed that proportionate reduction is to be made in RFA No.890/2010 4 allotting share in plaint A, B, C and D schedule properties to the first defendant. The operative portion of the judgment delivered on 29.11.1993 in O.S.No.591 of 1990 is extracted below for easy reference:
"In the result, a preliminary decree for partition is passed in the following lines. The plaint A and B schedule properties are to be divided into 60 equal shares by metes and bounds and giving separate possession of 11/60 share in the A schedule and 6/60 share in B schedule properties to the plaintiff and 6/60 share in C schedule also to the plaintiff. 5/60 share in A schedule 30/60 share in B schedule and 30/60 share in C schedule is to be allotted to the 1st defendant. 11/60 share in A schedule and 6/60 share in B schedule and 6/60 share in C schedule each is to be allotted to the defendants 2 to 4. The remaining share is to be allotted to the defendants 5 to 7 together. The written statement or counter claim shows D & E schedule. The quantum of mesne profits and the question of liability and the value of D schedule, in the counter claim if any etc., is to be determined at the time of passing the final decree. A commissioner is to be deputed to ascertain whether the movables mentioned in the D schedule in the counter claim is available and fix that value thereof. Admittedly, the E schedule in the counter claim except rent was received by the 1st defendant. A proportionate reduction is to be made in allotting share in A, B, C and D schedules to the first defendant. Absolutely there is no evidence to show that the value of the 15 cents is deposited by Kochumariam in the name of plaintiff. Therefore, no proportionate deduction is to be made in the share allotted to the plaintiff. The cost will come out of the estate. The suit is adjourned sine die. Any party is at liberty to apply for passing a final decree."
4. Aggrieved by the judgment and decree in O.S.No.591 of 1990 defendants 5 to 7 filed A.S.No.251 of 1995 in this Court. In that appeal they raised two principal contentions. The first contention was that the second defendant who is a nun, is not entitled to a share in the plaint scheduled properties. They also contended that with her remarriage (after the death of Antony Moothedan) the first defendant RFA No.890/2010 5 disinherited the property which she inherited on the death of Antony Moothedan. By judgment delivered on 6.11.2003, a learned single Judge of this Court partly allowed the appeal and held that the second defendant, a nun, is not entitled to any share. The preliminary decree allotting shares to the second defendant was accordingly set aside and the share allotted to the second defendant was reallotted to the plaintiff and defendants 1 and 3 to 7.
5. After the preliminary decree attained finality with the disposal of A.S.No.251 of 1995 on 6.11.2003, defendants 5 to 7 filed I.A.No.1284 of 2004 for the passing of a final decree in terms of the modified preliminary decree. The fourth defendant and the legal heirs of the third defendant (respondents 5 to 9 herein) together with the executor of the will filed I.A.No.2229 of 2004 for the passing of a final decree for partition. In the final decree proceedings an Advocate Commissioner was appointed and he submitted Ext.C1 report accompanied by Ext.C2, C3 and C4 plans. The Advocate Commissioner stated in Ext.C1 report that on measurement the plaint A schedule property was found to have an area of only 29.380 cents. The Advocate Commissioner partitioned the said parcel of land into five different plots as agreed to between the parties by draw of lots. Plot A having an extent of 2.42 ares (5.980 cents) was allotted to the share of the plaintiff which in turn as per her will devolves on respondents 5 and 6 in I.A.No.1284 of 2004. Plot B having an extent of 2.42 ares RFA No.890/2010 6 (5.980 cents) was allotted to the share of the third defendant whose legal heirs are respondents 6, 7 and 8 in I.A.No.1284 of 2004. Plot C having an extent of 1.08 ares (2.670 cents) was allotted to the share of the first defendant. Plot D having an extent of 2.42 ares (5.980 cents) was allotted to the share of the fourth defendant. Plot E having an extent of 2.42 ares (5.980 cents) was allotted to the share of defendants 5 to 7. The Commissioner has also provided a pathway shown as plot F having an area of 1.13 ares (2.790 cents) to provide access to each plot from the main road passing along the southern side of the plaint A scheduled property. As regards plaint B schedule item 1, having a total extent of 12.452 cents, the Advocate Commissioner suggested division of the property into three plots and allotment of plot 1 having an extent of 1.556 cents to defendants 5 to 7 , plot 2 having an extent of 4.670 cents jointly to the plaintiff and defendants 3 and 4 and the third plot having an extent of 6.226 cents to the first defendant. The Advocate Commissioner also valued the old building in Item No.3 at Rs.80,000/- and suggested that allottees of plots 2 and 3 should pay to defendants 5 to 7 the sum of Rs.10,000/- as their share in the value of the building. As regards items 2 and 3 of the plaint B schedule, the Advocate Commissioner recommended division of the same into three plots and allotment of plot No.1 having an extent of 4.373 cents to the share of the first defendant, plot No.2 having an extent of 3.286 cents to the share of plaintiff and RFA No.890/2010 7 defendants 3 and 4 and plot No.3 having an extent of 1.087 cents to the share of defendants 5 to 7. As regards C schedule items 1 to 4 which are deposits, the Advocate Commissioner suggested that the deposits should be called for from the various banks mentioned in the decree and the proceeds divided among the sharers. As regards Item No.5 of the plaint C schedule, the Advocate Commissioner reported that the scooter has not been shown to be in existence and therefore it has to be excluded from partition. As regards the movables, the Commissioner reported that none of the movables have been identified or shown to be available and therefore the D scheduled movables have also to be excluded. As regards E schedule, the Advocate Commissioner reported that the total value of the various amounts mentioned in E schedule comes to Rs.1,54,856/- and out of the said amount, the first defendant is entitled to receive the sum of Rs.77,428/- and the balance amount of Rs.77,428/- can be distributed among the other sharers. The Advocate Commissioner also suggested that a portion of the amount can be recovered from the half share due to first defendant in the plaint C schedule deposits and her share can be divided among the other sharers and the balance amount if any due from the first defendant can be made a charge on her share in the plaint A and B schedule immovable properties rather than making a proportionate reduction in her share.
6. The first defendant filed objections to the Commissioner's RFA No.890/2010 8 report to the extent the Commissioner recommended payment of the sum of Rs.50,000/- to defendants 5 to 7 for the purpose of filling up the pond which is in existence in plot E shown in Ext.C2 sketch. The first defendant contended that there was clear understanding between the parties that the person to whom the plot E is allotted should develop the plot at his or her expense. The legal heirs of the third defendant filed objection raising similar contentions. They also raised objections to the mode of division of items 2 and 3 of the plaint B schedule and the old building situate in plaint B schedule item No.1. Defendants 5 to 7 did not file objections. In the final decree proceedings no oral evidence was adduced. Though the Advocate Commissioner was present on several occasions he was not examined. The court below after considering the rival contentions held that as the parties had agreed that the person to whom plot E is allotted should develop the plot at his or her expense, the other sharers cannot be compelled to meet the expenses for filling up the pond. Regarding the house situate in item No.1 of the plaint B schedule, the court below held that the proper course would be to demolish the building, sell the materials and to divide the sale proceeds among the sharers. The objection regarding division of items 2 and 3 of the plaint B schedule was overruled. In the course of the final decree proceedings, the fifth defendant filed an objection to the effect that the plaintiff and defendants 1, 3 and 4 have no right in the plaint scheduled properties. RFA No.890/2010 9 She contended that Ext.B2 settlement deed is a fabricated document and that the properties covered by Ext.B2 settlement deed are also available for partition by treating the properties as belonging to late Kochumariam. The said contention was overruled on the ground that the rights of parties have been finally decided in the preliminary decree and therefore, the issue raised by the fifth defendant in I.A.No.3921 of 2007 cannot be considered. The said application was dismissed and a final decree was passed accepting Ext.C1 report with certain modifications. The operative portion of the final decree is extracted below:-
In the result, a final decree is passed as follows:
1. The 1st respondent is allotted the C plot in Ext.C2 sketch.
2. The respondents 5 to 7 together are allotted E plot in Ext.C2 plan.
3. The legal representatives of the plaintiff are allotted plot A in Ext.C2 plan.
4. The legal representatives of deceased D3 are allotted the B plot as shown in Ext.C2 plan.
5. D4 is allotted the D plot as per Ext.C2 plan
6. As E plot is a pond all other parties shall make it convenient to use their land to enable D5 to 7 to fill up plot E for a period of six months from the date of taking possession of E plot by D5 to D7.
7. D5 to D7 are allotted plot No.1 in Ext.C3 plan as their share in B schedule item No.1 property.
8. The plaintiff, D3 and D4 together are allotted plot No.2 in Ext.C3 plan as their share in B schedule item No.1 property.
9. D1 is allotted plot No.3 in Ext.C3 plan as her share in B schedule item No.1 property.
10. The building in B schedule item No.1 which situates in plot No.2 and plot No.3 shall be demolished after the eviction of the tenant therein and the building materials so demolished shall be sold and the sale proceeds shall be shared among D3 to D7 in proportion to their shares in plaint B schedule item No.1 property
11. D1 is allotted plot No.1 in Ext.C4 plan as her share in B RFA No.890/2010 10 schedule item Nos.2 and 3.
12. The plaintiff, D3 and D4 together are allotted plot No.2 in Ext.C4 plan as their share in B schedule item No.2 and 3.
13. D5 to D7 together are allotted plot No.3 in Ext.D4 plan as their share in B schedule item No.2 and 3.
14. The amount available and deposited before court from items 1 to 4 of C schedule are allotted to the sharers except D1 in the same proportion as above.
15. Of the total amount available for partition in E schedule of Rs.1,54,856/-, D1 is entitled to get half the share of Rs.77,428/- and the balance due from D1 is allotted to the sharers in proportion to their shares.
16. D1 is not given any share in C schedule amount which shall be equally divided among other shares.
17. The balance amount due from D1 to the other sharers shall be a charge on her share allotted in A and B schedule properties.
18. Value of the property for stamp duty is fixed at Rs.13,84,275/-. The sharers shall pay an amount of Rs.69,214/- towards stamp duty in proportion to the shares allotted to them.
19. Ext.C1 report and Exts.C2 to C4 plans shall form part of the final decree.
20. The respective parties are entitled to take separate possession of the shares allotted as above, if not already in possession.
21. The cost in the final decree proceedings shall be borne by the sharers in proportion to their shares.
22. A copy of the final decree shall be forwarded to the SRO, concerned.
Defendants 5 to 7 have filed this appeal aggrieved by the final decree.
7. I heard Sri.C.Varghese Kuriakose, learned counsel appearing for the appellants, Sri.P.C.Iype, learned counsel appearing for the second respondent and Sri.Jimmy John Vellanikaran, learned counsel appearing for respondents 4 to 9. The learned counsel appearing for the appellants contended that the court below erred in holding that the parties to whom the plot E is allotted should develop the plot at his or her expense and therefore, the other sharers cannot be held liable to pay Rs.50,000/- to meet the expenses in that regard. The learned RFA No.890/2010 11 counsel contended with reference to the proceedings of the Commissioner dated 1.11.2005 forming part of Ext.C1 report that the finding entered by the court below in paragraph 9 of the impugned order cannot be sustained. The learned counsel contended that none of the parties had stated before the Advocate Commissioner that the sharer to whom plot E is allotted, should fill up the pond at his or her expense and that all that the parties had agreed was that for a period of six months from the passing of the final decree, the parties will co- operate and permit each other to take lorries and other vehicles through their plot to develop their plots. The learned counsel for the appellants contended that the said agreement cannot be interpreted to mean that the appellants had agreed to meet the expenses to develop plot E by filling up the pond therein. Canvassing the correctness of the direction issued by the court below as regard the building in item No.1 of the plaint B schedule, the learned counsel for the appellant contended that no interference was called for with the suggestion made by the Advocate Commissioner. Per contra, the learned counsel appearing for the respondents contended that during the proceedings before the Advocate Commissioner appointed in the final decree proceedings, the parties had agreed to take the land allotted to their share in as is where is condition, that though a draw of lots was held for the purpose of allotment an agreement was entered into between the parties that the sharer to whom plot E is allotted shall fill up the RFA No.890/2010 12 pond at his or her expense and that all the parties had agreed that for a period of six months from the passing of the final decree, the parties will co-operate and permit each other to take lorries and other vehicles through their plots to develop plot E. As regards the direction in respect of the house situate in Item No.1 of the plaint B schedule, the learned counsel appearing for the respondents contended that the building being an old one cannot be retained and used as such and therefore it will have to be demolished and in such circumstances, no interference is called for with the direction issued by the court below to demolish the building, to sell the materials and to divide the sale proceeds among the sharers.
8. I have considered the submissions made at the Bar by the learned counsel on either side. The proceedings of the Advocate Commissioner dated 1.11.2005 which forms part of Ext.C1 report reads as follows:
"After the measurement conducted on 28.8.2005, the Surveyor was asked to divide the plaint A schedule property near Lisie Hospital into five plots as A to E starting from the south western corner to the north and then to the east leaving an 8 links wide pathway leaving convenient bell mouths by the side of the Bank Employees' building reaching the 5th plot and it was decided by all that allotment of the plots to the respective parties can be decided by drawing of lots and also that defendant No.1 who has only half share will take the 1st lot. The drawing of lots was held on 1.11.05 at the office of the Commissioner at 10.30 AM.
1. 1st Defendant Annie Antony Plot C by Adv.P.C.Iype RFA No.890/2010 13
2. Defendants 5 to 7 Plot E by Adv.P.Viswanathan
3. Plaintiff Isabella (died) as per will Polson & Rose Polson Plot A
4. 3rd def. Reetha Devassy (died) K.M.Devassy Mathew Kunjappan Plot B Rose Polson
5. 4th def. Alphonsa Antony Plot D by Adv.Jimmy John The allotment of plots as above said is accepted by all and it is further agreed that for a period of 6 months from the passing of the final decree parties will co operate and permit each other to take lorries and other vehicles through their plots for developing the plots.
9. The Advocate Commissioner has in Ext.C1 report allotted plots A to E by draw of lots which was held at 10.30 am on 1.11.2005. The proceedings of the Advocate Commissioner discloses that the parties had agreed to allotment of various plots by draw of lots. The proceedings of the Commissioner also discloses that the allotment was accepted by all the sharers and they had also agreed that for a period of six months from the passing of the final decree, the parties will co- operate and permit each other to take lorries and other vehicles through their plot to develop the plots. The court below has held that in view of this agreement, the other sharers cannot be compelled to meet the expenses for filling up plot E. In my opinion, the said finding cannot be sustained in the light of the materials on record. The Advocate Commissioner has in unnumbered paragraph 5 of Ext.C1 report stated that though the plaint A schedule is water logged area, RFA No.890/2010 14 plot E which is allotted to the share of defendants 5 to 7 is a pond and therefore the other sharers should pay a minimum of Rs.50,000/- to them to enable them to fill up the said pond to bring parity between plot E and other plots. The said amount of Rs.50,000/- is actually the amount paid as owelty to equalise the shares allotted. In such circumstances, as plot E which was allotted to the share of defendants 5 to 7 is a pond, the suggestion made by the Commissioner that the other sharers to whom plot A to D were allotted should pay the expenses for development of plot E cannot be said to be objectionable or unreasonable. That apart, the proceedings of the Commissioner does not disclose that parties had agreed that the sharer to whom plot E is alloted should meet the expenses for developing that plot, which is admittedly a pond into garden land. If the view taken by the court below is accepted, the division and allotment will not be just, fair and equitable. The court below therefore erred in interfering with the suggestion made by the Advocate Commissioner that the other sharers should be held liable to pay the sum of Rs.50,000/- to defendants 5 to 7 towards expenses for developing plot E shown in Ext.C2 plan, allotted to their share.
10. As regards the direction regarding sale of the building in Item No.1 of the plot B schedule and distribution of the proceeds among the sharers, I find no reason to interfere with the said direction. The building in question is admittedly a 60 year old building. RFA No.890/2010 15 The Advocate Commissioner has in his report stated that the parties have agreed that the building should be demolished. In such circumstances, as the building cannot be retained as such and put to use, the court below was perfectly right in directing that it should be demolished, the materials sold and the sale proceeds divided among the sharers in proportion to their shares.
11. As regards challenge to Ext.B2 settlement deed and the contention that on remarriage, the first defendant disinherited the properties which devolved on her on the death of her husband Antony Moothedan, I am of the opinion that defendants 5 to 7 cannot put forward the said contention at this stage. Defendants 5 to 7 had not in their written statement questioned the validity of Ext.B2 settlement deed. Likewise they had also not raised a contention that on remarriage, the first defendant disinherited the properties that devolved on her on the death of her husband late Antony Moothedan. These two contentions were raised for the first time in A.S.No.251 of 1995, but both the contentions were repelled. As regards the challenge to Ext.B2, this Court held that no material is available on record to sustain such a plea. The contention that on remarriage, the first defendant disinherited the properties that devolved on her on the death of her husband was also not accepted by this Court. The judgment of this Court in A.S.No.251 of 1995 has attained finality. The appellants/defendants 5 to 7 cannot in the final decree RFA No.890/2010 16 proceedings seek to reopen the findings entered by this Court in A.S.No.251 of 1995. The rights of parties being governed by the decree and judgment in A.S.No.251 of 1995, the court below could not have interfered with the finding regarding the rights of parties. The court below was therefore perfectly right in dismissing I.A.No.3921 of 2007.
I accordingly allow the appeal, modify the final decree for partition passed by the court below and direct that the sharers to whom plots A to D in Ext.C2 plan have been allotted shall pay to defendants 5 to 7 the sum of Rs.50,000/-, for filling up the pond in plot E in Ext.C2 plan before delivery of plots A to D allotted to their respective shares. In all other respects, the final decree shall stand.
P.N.RAVINDRAN, (JUDGE) vps