IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 WP(C).No. 11549 of 2004(Y) --------------------------------------- PETITIONER: -------------------- KUTTY NADAR PALAYYAN, PALNIVAS, ANJALIKONAM, PASUVAKKAL DESOM, PASUVAKKAL VILLAGE, NEYYATTINKARA. BY ADV. SRI.K.P.SREEKUMAR SRI.P.M.SATHEESH (PALAKKAL MAVILA VALAPP) RESPONDENTS: ------------------------- 1. KUTTY NADAR THANGAN, THANGA SREE BHAVAN, ANJALIKONAM, PASUVAKKAL VILLAGE, PAZUVAKKAL VILLAGE, NEYYATTINKARA.( D I E D) 2. KUTTY NADAR SHYLUS RAJEEVAN, MEENOTE KAMALAVILASOM BUNGLOW, PONVILA, ARAYOOR DESOM, CHENKAL VILLAGE, NEYYATTINKARA. 3. THANGAMMA NESSAM, VADAKKEPONVILA VEEDU, ERICHALLOOR DESOM, KARODU VILLAGE, NEYYATTINKARA. 4. NESSAM MABAL VIMALA, VADAKKEPONVILA VEEDU, ERICHALLOOR DESOM, KARODE VILLAGE, NEYYATTINKARA. 5. NJANAMUTHEN NADAR SURESHKUMAR, VADAKKEPONVILA VEEDU, ERICHALLOOR DESOM, KARODE VILLAGE, NEYYATTINKARA. Kss ..2/- ...2.... WPC.NO.11549/2004 Y 6. NJANAMUTHEN NADAR PRASANNAKUMAR, VADAKKEPONVILA VEEDU, ERICHALLOOR DESOM, KARODE VILLAGE, NEYYATTINKARA. 7. NESSAM MABAL THILAKAM, VADAKKEPONVILA VEEDU, ERICHALLOOR DESOM, KARODE VILLAGE, NEYYATTINKARA. 8. NESSAM MABAL ALIAS GLADIS, VADAKKEPONVILA VEEDU, ERICHALLOOR DESOM, KARODE VILLAGE, NEYYATTINKARA. BY ADV. SRI.NAIR AJAY KRISHNAN R3 TO R6 BY ADV.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU R1 BY ADV.SRI.L.MOHANAN SMT.MEREENA JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11549/2004 Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PRELIMINARY DECREE IN O.S.NO.248/1996 ON THE FILE OF THE 1ST ADDL.MUNSIFF COURT, NEYYATTINKARA DTD. 16/10/2000. EXT.P2: COPY OF THE PLAN FILED BY THE COMMISSIONER ON 25/07/2002 IN O.S.NO.248/96. EXT.P3: COPY OF ANOTHER PLAN FILED BY THE COMMISSIONER ON 25/07/2002 N O.S.NO.248/96. EXT.P4: COPY OF THE ORDER DTD. 26/11/2003 IN O.S.NO.248/96 OF THE 1ST ADDL.MUNSIFF COURT, NEYYATTINKARA. EXT.P5: COPY OF THE DEPOSITION OF THE COMMISSIONER IN O.S.248/96. EXT.P6: COPY OF THE COMPLAINT DTD. 8/02/08. EXT.P7: COPY OF THE RECEIPT ACKNOWLEDGING THE COMPLAINT DTD. 9/02/2008. /TRUE COPY/ P.A.TO JUDGE Kss M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 11549 OF 2004 --------------------- Dated this the 22nd day of February, 2008 JUDGMENT This writ petition is preferred against the order of the 1st Addl. Munsiff, Neyyattinkara, in IA 5175/02 in OS 248/96 whereby the learned Munsiff has directed the Commissioner to effect the partition equitably in the light of objections to the commission report filed by defendants 1, 3 to 6 and file the report reallotting the shares accordingly. Aggrieved by the said decision, the plaintiff has come up with this writ petition. 2. A reference to the preliminary decree is necessary for a just understanding of the case. Para 18 of the original judgment deals with the equities. First defendant claimed equitable allotment of Kadyara (shoproom) building in plaint “A” schedule item No.2. Second defendant claimed equitable allotment of kamalavilasom Bunglow described in A schedule item No.2. Defendants 3 to 8 claimed equitable allotment of “B” schedule item No.2 contending that they are residing in the house situated therein. Therefore the court left the question of equity to be decided at the time of passing WPC NO 11549/04 2 the final decree. Thereafter the Commissioner had inspected the property and prepared plan and report of which Ext.P2 relates to “B” schedule and Ext.P3 relates to “A” schedule. 3. Learned counsel for the writ petitioner would submit that the court has not taken into consideration the real facts and therefore had given an incorrect direction to the Commissioner. He has referred to para 7 of the written statement filed by the defendants 3 to 6 wherein it is stated that the house situated in the “B” schedule property with the land and the movables therein is to be given to them. He had also referred to an affidavit filed in an Order XXVI Rule 9 petition in which he refers to para 8 that the house situated in item No.2 of the plaint “B” schedule has become uninhabitable and therefore defendants 3 to 6 had constructed a house outside the suit property. This is with respect to the house situated in item No.2 of the “B” schedule. He has also referred to the objections to the Commissioner’s reporting in para 8 where it deals with the “A” schedule. There is a mention therein that the 2nd defendant has agreed to remove some portion of the house. Now what has to be considered is whether there is a proper consideration of the matter by the Commissioner in accordance with the terms of the decree and WPC NO 11549/04 3 also the subsequent developments that has come into effect after passing of the preliminary decree. It is on analysis of those materials available, its probability, feasibility equity etc. can be found out and thereafter only the court can pass an order regarding the entitlement of allotment. Now the Commissioner has projected a picture before the court and the parties have filed their objections. It is for the court below to weigh the evidence on the materials available before it to pass orders in accordance with the terms of the decree and attending circumstances. Instead of doing the same, the approach of the learned Munsiff to direct the Commissioner to have an equitable allotment will take us nowhere and the Commissioner will not be able to do anything unless strict directions and modalities is laid down by the court and the Commissioner is directed to do the work. While giving such directions and suggesting the modalities, the court is expected to consider the entire materials available before it including the preliminary decree, Commissioner’s plan and report, objections and the evidence and then arrive at a decision so as to see that the spirit of the preliminary decree is complied with. 4. To enable the court to do so, I set aside the order of the court below and direct that court to consider the matter afresh in the WPC NO 11549/04 4 light of the discussions made above. There is allegation and counter allegation regarding the cutting of trees. It is desirable that the properties are preserved in tact. Therefore, I direct all the parties concerned not to cut and remove any kuzhikoor from the decree schedule property and not to commit waste or alter the physical feature of the property. If any deviation is necessary, they have to move the lower court for appropriate directions and the court can pass orders, as expeditiously as possible, after hearing all concerned. The writ petition is disposed of accordingly. Parties are directed to appear before the court below on 17.3.08. M.N.KRISHNAN, JUDGE vps WPC NO 11549/04 5 WPC NO 11549/04 6 WPC NO 11549/04 7