CHANDY S/O JOSEPH Vs. K O MATHAI

JUDGEMENT

(1.) DEFENDANT in O.S. No.11 of 1999 of the court of learned Sub Judge, Pala is the appellant before me challenging the final decree for partition passed in that suit and confirmed by the learned Additional District Judge (Special), Kottayam in A.S. No.366 of 2007.

(2.) THE learned Sub Judge in O.S. No.11 of 1999 passed a preliminary decree for partition of the suit property - 73 cents purchased by the appellant and respondent jointly as per sale deed No.1681/1984. The preliminary decree directed the said property to be divided into two equal halves. Respondent was allowed to realize mesne profits. The preliminary decree further directed that the location of allotment of shares shall be decided in the final decree proceeding. Respondent filed I.A. No.146 of 2005 for passing a final decree. The Advocate Commissioner submitted Ext.C1(a), plan and Ext.C2, report. Appellant filed I.A. No.370 of 2007 to set aside that report and plan. On that application evidence was recorded and the trial court by order dated

(3.) YET another objection raised is regarding mesne profits ascertained by the Advocate Commissioner. It is contended by the learned counsel that the Advocate Commissioner conducted test tapping in the month of December which is the high yielding time and that was taken as the average for the year. According to the learned counsel, the average would be much less than what the Advocate Commissioner has assessed.