IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 WP(C).No. 35623 of 2009(O) --------------------------------------- [OS.NO.158/2009 OF PRL.MUNSIFF COURT, KOCHI] .................... PETITIONER: ------------------- NAZAR, S/O.UMMER, AGED 42, THAREPARAMBIL HOUSE, NAMBIAPURAM ROAD, PALLURUTHY, KOCHI-6, NOW RESIDING AT THAZHUPITHARA, AP 6/236, AROOR, CHERTHALA TALUK, ALAPPUZHA. BY ADVS. MR.G.SREEKUMAR (CHELUR), MR.K.RAVI (PARIYARATH). RESPONDENTS: ------------------------ 1. AYSHA, D/O.UMMER, THAREPARAMBIL HOUSE, NAMBIAPURAM ROAD, PALLURUTHY, KOCHI-6. 2. SHERIFA, W/O.MOIDU, ARAFA MANZIL, VILAKUMPADAM, SDPY ROAD, PALLURUTHY, KOCHI-6. 3. ABDUL RAHMAN, S/O.UMMER, CC 18/865C, NEAR D LB QUARTERS, CHIRAKKAL, PALLURUTHY, KOCHI-6. 4. SEBIYA, W/O.SIRAJUDHEEN, KALALAYA, SAKARIYA BAZAR, ALAPUZHA. 5. ASMA, W/O.NAZEER, THAREPARAMBIL HOUSE, NAMBIAPURAM ROAD, PALLURUTHY, KOCHI-6 R1 TO R5 BY ADV. MR.T.MADHU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.35623/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO.158/2009 ON THE FILE OF THE MUNSIFF COURT, KOCHI DTD. 06/04/2009. EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS HEREIN IN O.S. 158/2009 ON THE FILE OF THE MUNSIFF COURT, KOCHI DTD. 25/07/2009. EXT.P.3: COPY OF THE ALLEGED DOCUMENT DTD. 22/12/2005. EXT.P.4: COPY OF THE I.A. NO. 2164/2009 IN EXT.P1 SUIT DTD. 11/11/2009. EXT.P.5: COPY OF THE ORDER PASSED BY THE LEARNED MUNSIFF IN I.A. NO. 2164/2009 IN O.S. NO. 158/2009 DTD. 17/11/2009 ON THE FILE OF THE MUNSIFF COURT, KOCHI. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. ---------------------------------------- WP(C) No.35623 of 2009-O ---------------------------------------- Dated 18th February 2010 Judgment The petitioner, who is the plaintiff in OS No.158/09 on the file of the Munsiff's Court, Kochi, has approached this Court challenging Ext.P5 order passed by the said Court. 2. The suit was one for partition, claiming 1/5th share in the property. The defendants contested the suit and contended that the plaintiff had received the share in cash and had relinquished his rights over the property. It was pointed out by them that Rs.60,000/- was determined as the value of the plaintiff/writ petitioner's 1/5th undivided share and a further amount of Rs.15,000/- was also paid to him in order to satisfy his claim. Thereafter, an agreement was also entered into between them to that effect. 3. The plaintiff was examined as PW1 on 09.11.2009 and DWs1 and 2 were examined on WPC 35623/09 2 10.11.2009. Thereafter, Ext.P3 agreement said to have been entered into between the parties, was produced by the defendants. They also filed IA No.2164/09 to recall the plaintiff as PW1, which was allowed by the Court below. Objection is taken to the said order. 4. The learned counsel for the petitioner drew attention of this Court to the variance in the recitals in Ext.P3 agreement and the written statement and pointed out that had the said document in existence, it would have been produced much earlier. He also pointed out that it can be very easily seen that Ext.P3 is a fabricated document. 5. True, the plaintiff denies the execution of any such document. But, the defendants have produced a document, said to have been executed by the plaintiff. All the legal contentions urged by the petitioner can be raised before the Court below and the Court will surely consider those contentions, including the admissibility of the document, while deciding the matter. Leaving open the liberty of the petitioner to raise all relevant issues before WPC 35623/09 3 the Court below, this Writ Petition is dismissed. P.BHAVADASAN, JUDGE sta WPC 35623/09 4