IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 7119 of 2009(O) ------------------------- AGAINST THE ORDER DATED 20/01/2009 IN IA.3783/2008 IN AS.84/2005 OF SUBORDINATE JUDGE'S COURT, OTTAPPALAM OS 40/2003 ON MUNSIFF MAGISTRATE'S COURT, MANNARKKAD .................... PETITIONER(S): ---------------------- RADHAKRISHNAN, S/O.PULLIKKULAM CHINNA, THENKARA AMSOM AND DESOM, THENKARA POST, MANNARKKAD TALUK, PALAKKAD DIST. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S): --------------- 1. PRABHAVATHI, W/O.PULIKULAM BALARAMAN 2. SOUMYA, AGED 22 YEARS, D/O.PRABHAVATHI. 3. SANOOB, S/O.PRABHAVATHI, 19 YEARS 1 TO 3 ARE RESIDING AT PULLIKULAM HOUSE, POTTASSERI AMSOM AND DESOM, KANJIRAMPUZHA POST, MANNARGHAT TALUK, PALAKKAD DISTRICT. ADV. SRI.MANU ROY FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- W.P.(C).No.7119 of 2009 ----------------------------------- Dated this the 31st day of March, 2009 JUDGMENT The plaintiff in O.S.No.40 of 2003 on the file of the court of the Munsiff Magistrate of Mannarkkad, has filed this Writ Petition challenging the order in I.A.No.3783 of 2008 in A.S.No.84 of 2005 on the file of the court of the Subordinate Judge of Ottappalam. 2. The suit was filed for partition claiming a 1/4th share in four items of immovable property. The trial court passed a preliminary decree holding that only item Nos.3 and 4 of the plaint B schedule are partible. It was held that item Nos.1 and 2 are not partible, accepting the contentions of the contesting defendants that they are the legatees in respect of those items. The plaintiff has filed A.S.No.84 of 2005 challenging the judgment and decree of the trial court, in so far as it relates to dismissal of the suit regarding item Nos.1 and 2. The appeal is pending. An application was filed by the appellant/plaintiff for WPC No.7119/2009 2 temporary injunction restraining the respondents from committing waste in the property or cutting and removing trees. The lower appellate court passed an order directing the parties to maintain the status quo. 3. Respondent Nos.1 to 3 filed I.A.No.3783 of 2008 in the appeal for permission to construct a new house in the plaint B schedule item No.1 and for that purpose permit them to cut and remove coconut tree, mango tree and teak tree. The Writ Petitioner filed objections in the I.A. It was pointed out that he has no objection in improving the property. But, for that purpose trees cannot be cut. It is also stated that the house is to be valued at the time of partition, in case the appellate court holds that item No.1 of B schedule property is partible. The court below allowed the application in part and permitted the respondents herein to construct a residential house in item No.1. They were permitted to cut and remove one coconut tree and one mango tree. The court below also held that in the event of partition, the house will be allotted to the respondents herein (petitioners in I.A.No.3783 of 2008) without valuation, but, on valuation of the land only. The order passed by the court below WPC No.7119/2009 3 in I.A.No.3783 of 2008 is under challenge in the Writ Petition. 4. There are four items involved in the suit. Item Nos.1 and 2 are situated at Pottassery. Item Nos.3 and 4 are in Thenkara. Item No.1 is a kudiyirippu having an extent of 25 cents. Item 2 is a nilam having an extent of 67 cents. Item No.3 is a kudiyiruppu having an extent of only 5 cents. Item No.4 is having an extent of 84 cents and it is a kuridiyiruppu. The allotments would be made depending upon the convenience of the parties. In the nature of the lie of the property in different places, the allotment will not normally be made by dividing each item into four shares. Therefore, the present request made by the respondents herein for permission to construct a house in item No.1 cannot be held to be unjustified. It is stated in the affidavit that a loan of Rs.35,000/- was applied for under the project of granting loan for widows. The proposal is to construct the house after availing that facility. The court below was justified in permitting the respondents to construct a house in item No.1. The direction not to value that house at the time of partition is also justified since the Writ Petitioner would not be spending any amount for construction of the house. At the same WPC No.7119/2009 4 time, permission granted to the respondents herein to cut and remove trees without ascertaining the value of the same is not proper. 5. Accordingly, the court below is directed to appoint a Commissioner who will assess the value of the trees proposed to be cut and removed for construction of the house in item No.1 of the B schedule. The present market value of the trees should be ascertained by the Commissioner and all the relevant details of the trees should be made available in the report for consideration of the court. The Writ Petition is allowed in part in the manner indicated above and the order passed by the court below is modified to the extent of appointing a Commissioner before allowing the respondents to cut the trees. It is made clear that permission to cut the trees is also not interfered with. K.T.SANKARAN, JUDGE csl