This Second Appeal is directed against the final decree passed in O.S.508 of 1982 before the Additional Munsiff's Court-I, Kozhikode.
2. The suit was one for partition and preliminary decree was passed. In furtherance of the preliminary decree, the plaintiffs moved the trial court vide I.A.967 of 2002 for passing of a final decree in terms of the preliminary decree. A Commissioner was deputed for the purpose of allotting shares. As per the preliminary decree, the plaint schedule property was to be divided into six equal shares. The plaintiffs are entitled to get 1/6th share, the first defendant is entitled to get 3/6 shares and defendants 2 and 3 together are entitled to get 1/6 share and the fourth defendant is also found to have the same share.
3. The Commissioner so deputed by the court below prepared a report and sketch and filed it before court.
4. Even though the petitioners did not object to the proposal made by the Commissioner, there was dispute regarding the partibility of item No.2. According to the first respondent, the property has been wrongly identified and there is difference in the boundaries. It is seen from the order of the court below that the petitioner in the suit filed a statement to the effect that item No.2 of the plaint schedule can be excluded and final decree may be passed on that basis.
5. It is seen from the records that strong objection was taken regarding the valuation made by the Commissioner and R.W.1 was examined in that regard. However except for stating that valuation shown is not proper, there was no material adduced before the court below to show that the value was either insufficient or excess as assessed by the Commissioner. After referring to the evidence on record, the trial court passed a final decree in the following terms:
“In the result;
1) A final decree is passed;
2) Plot ACEFJL in Ext. C1(b), C1(c), C1(d) and C1(f) plans are allotted to the share of the petitioners and respondents 2 to 4 jointly;
3. Plots BDGKNM in Ext.C1(b), C1(c), C1(d) and C1(f) plans are allotted to the 1st respondent;
4. Towards equalization of shares the 1st respondent shall pay an amount of Rs.1,63,694.88 to the petitioners and respondents 2 to 4;
5. The petitioners are entitled to realize the cost in proportion to the shares;
6. There shall be a charge on the property allotted to the 1st respondent with regard to the owelty amount;
6(a). The petitioners are entitled to get share in profits at the rate of Rs.1,048/- (Rupees one thousand and forty eight only) per year from the date of the suit till actual delivery from the 1st respondent.
(Amended as per order in I.A.1855/09 dtd.6.11.2009)
7. Ext.C1(b), C1(c) C1(d) and C1(f) shall form part of the final decree;
8. Produce value of Non Judicial stamp.”
6. Aggrieved by the final decree so passed, respondents 1 and 4 filed an appeal before the District Court, Kozhikode. As the appeal was filed out of time, I.A.1715 of 2010 was filed along with the appeal to condone the delay of 512 days in filing the appeal. The lower appellate court, after evaluating the materials before it, found that the reasons given for condonation of delay were totally insufficient and also came to the conclusion that the intention was only to protract the proceedings and delay the passing of the final decree. Consequently the delay condonation petition was dismissed and the appeal met with the same fate.
7. At the time of admission of this Second Appeal, learned counsel appearing for the appellants contended that the appellants ought to have been given an opportunity to present there grievance before the lower appellate court and the lower appellate court was not justified in dismissing the delay condonation petition and declining to hear the appeal on merits. The appellants had a grievance regarding the valuation adopted by the Commissioner.
8. In order to ascertain whether there is any real grievance for the appellants, the matter was heard in length.
9. After having heard learned counsel for the appellant and after having perused the available records, it is found that there is no substance in the appeal. Of course, the lower appellate court could have condoned the delay and could have heard the appeal on merits. But the fact that it has not done so for cogent and convincing reasons seems to be well justified.
10. The grievance was with regard to the inclusion of item No.2 and the valuation adopted by the Commissioner. As regards item No.2 is concerned, the parties concerned filed a statement that it may be excluded from partition. As far as the valuation aspect is concerned, the trial court has gone into the matter in depth, and except for a vague allegation that the valuation adopted by the Commissioner is incorrect, there were no substantial materials nor was there any evidence adduced by the contesting parties to show that the valuation was improper, unjust or unfair. It must be remembered that the suit is of the year 1982. 32 years have elapsed. It is time to give a quietus to the matter. Viewed from any angle, it appears that there is no merit in this appeal.
Hence this appeal is dismissed.
P. BHAVADASAN, JUDGE sb.