IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 WP(C).NO. 17959 OF 2010(O) ------------------------------------------ OS.451/1993 OF MUNSIFF COURT, THIRUVALLA .................... PETITIONER(S): ------------------------ ANIL MATHEW, NALUPURAYIL VEEDU, THATTAKKATTU MURI, KOIPPURAM VILLAGE, THIRUVALLA. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): --------------------------- EAPEN, S/O.VARGHESE, NELLIMALA PUTHENVEETTIL, THATTAKKATTUMURI, KOIPPURAM VILLAGE, THIRUVALLA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.17959 of 2010 ==================================== Dated this the 10th day of June, 2010 J U D G M E N T This Writ Petition is at the instance of defendant No.9 in the preliminary decree proceeding in O.S. No.451 of 1993 of the court of learned Munsiff, Thiruvalla. Respondent sued petitioner for a decree for partition and separate possession. Preliminary decree was passed in the suit directing division of suit property into five equal shares by metes and bounds. In the course of final decree proceeding the Advocate Commissioner submitted report and plan to which respondent filed detailed objection. That objection was considered and vide Ext.P4, order dated 14.08.2009 learned Munsiff set aside the report and plan holding that it is not in accordance with the spirit of direction contained in the preliminary decree and ordered appointment of a commission to get fresh report and plan. That order is under challenge in this Writ Petition at the instance of defendant No.9. It is contended by learned counsel that the only reason for learned Munsiff setting aside report and plan is that respondent did not get that much road frontage in the share allotted to him as the other defendants W.P(C) No.17959 of 2010 -: 2 :- including the petitioner got. 2. I have gone through the impugned order. What the learned counsel stated alone is not the reason for setting aside report and plan. Learned Munsiff has observed that the report and plan are not in accordance with the spirit of direction in the preliminary decree. I have gone through the objection preferred by respondent to the report and plan also where serious objections are raised. Objection is that though Advocate Commissioner found deficit in total extent but there was no proportionate reduction of that deficit in all the shares and the Commissioner attempted to give more extent to the petitioner and defendant Nos.6 and 8. Further objection is that as against the road frontage given to petitioner and defendant No.8, respondent was given only a meagre road frontage and that was done to benefit petitioner and defendant Nos.6 and 8. There was also objection to the market value of property assessed by the Advocate Commissioner. It is taking into these aspects into account that learned Munsiff thought that there must be a fresh report and plan. While exercising jurisdiction under Article 227 of the Constitution of India this Court is not required to interfere with the discretionary jurisdiction exercised by the learned Munsiff W.P(C) No.17959 of 2010 -: 3 :- unless it is shown that there is patent illegality or perversity in the order. Having regard to the nature of objections raised by respondent and considering the report and plan submitted by the Advocate Commissioner I am not persuaded to think that any such contingency arose with reference to Ext.P4, order requiring interference by this Court. I must also bear in mind that right of petitioner to object to the fresh report and plan that may be submitted by Advocate Commissioner is not foreclosed. It is open to the petitioner to raise whatever objection he has to such report and plan. As such no interference is called for against Ext.P4, order. Writ Petition fails and is dismissed. THOMAS P. JOSEPH, JUDGE. vsv