ELDOSE Vs. ELAMMA

JUDGEMENT

(1.) THE defendants 2 and 3 in O.S.No.82 of 2000 of the Sub Court, Perumbavoor are the appellants, aggrieved by the final decree passed in that case as per order on I.A.No.411 of 2007.

(2.) THE preliminary decree directed 1/3 share each to the petitioners in I.A.No.411 of 2007. Based on the preliminary decree, petitioners in I.A.No.411 of 2007 wanted the learned Sub Judge to pass a final decree. The learned Sub Judge appointed an Advocate Commissioner to make the allotment. The Advocate Commissioner submitted Exts.C1 series, report and plans. Exts.C1(a) to (c) are the plans which concern the three items regarding which allotment was made by the Advocate Commissioner. Exts.C2 series are the report with the assistance of the expert Engineer regarding valuation of the building in the suit properties. Based on Exts.C1 series and C2 series the learned Sub Judge passed a final decree. The appellants/defendants 2 and 3 challenged that final decree in A.S.No.34 of 2009. Plaintiffs 1 and 3 to 6 (petitioners in I.A.No.411 of 2007) preferred a cross objection as they were aggrieved by certain directions issued by the trial court. The first appellate court while affirming allotment made by the Advocate Commissioner as per Exts.C1(a) to (c), found that the new building in plot No.3 of Ext.C1(a) was constructed by the 1st appellant/2nd defendant and that the extended portion of the tarwad house in the same plot was constructed by the 2nd appellant/3rd defendant. Accordingly, those portions were excluded from partition. In modification of the direction issued by the trial court to the 2nd plaintiff to pay Rs.72,799/- to the defendants jointly as owelty, the first appellate court directed the 1st plaintiff to pay Rs.22,378/- to the defendants 2, 3 and 5 as owelty (in view of the finding that the new building was constructed by 2nd defendant and that the extended portion of the tarwad house was constructed by 3rd defendant). There was a further direction to the plaintiffs 3 to 6 to pay Rs.1,88,883/- by way of owelty to defendants 2, 3 and 5. Thus plaintiffs 1 and 3 to 6 were made liable to pay a total sum of Rs.2,11,261/-.

(3.) THE learned counsel for the appellants/defendants 2 and 3 contends that so far as value of improvements effected in the properties is concerned, the report of the Advocate Commissioner would show that improvements are effected by the appellants/defendants 2 and 3. The learned counsel submits that there are 406 rubber trees which would give yield for another 20 years. There are other trees also planted by the appellants in the suit property. These aspects were not taken note of by the trial and the first appellate courts while passing the final decree and/or modifying the final decree.