IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 OP(C).No. 468 of 2011(O) ------------------------------- OS.179/2005 of MUNSIFF COURT, PUNALUR .................... PETITIONER -------------- LAKSHMIKUTTY, VENGAVILAPUTHAN VEETTIL, NELLIPALLY.P.O., VALACODU VILLAGE. BY ADV. SRI.AJAYA KUMAR. G RESPONDENT(S): -------------------- 1. VIMALA, D/O.BHARATHY, SHANMUGHA BHAVAN, VALCODU VILLAGE. 2. BALABHADRAN, MMUBAI-97, PATTALVADI MALADU, SANJAI NAGAR, BHARATHMAL ADARSH BHAVAN, FROM VENGAVILA PUTHEN VEETTIL, VALACODU VILLAGE - 696 337. 3. ANIRUDHAN, CHARUVILA PUTHEN VEEDU,NALLAMKULAM, VETTITHITTA, PIRAVANTHOOR VILLAGE, FROM VENGAVILA PUTHEN VEETTIL, VALACODU VILLAGE - 696 337. 4. ASOKAN, MAHAVEER NIVAS, KURINI VILLAGE, MUMBAIR FROM VENGAVILA PUTHEN VEETTIL, VALACODU VILLAGE - 696 337. BY ADV. SRI.M.S.UNNIKRISHNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 468/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO.179/2005. P2: COPY OF THE COMMISSION REPORT DATED 07/02/2008. P3: COPY OF I.A. NO.58/2010. P4: COPY OF THE I.A. NO.57/2010. P5: COPY OF THE OBJECTION DATED 31/05/2010. P6: COPY OF THE ORDER IN I.A. NO.57/2010. P7: COPY OF THE ORDER IN I.A. NO.58/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. --------------------------------- O.P.(C)No. 468 of 2011 --------------------------------- Dated this the 23rd day of November, 2011 JUDGMENT Exts.P6 and P7, orders passed by the learned Munsiff, Punalur on I.A.Nos.57 and 58 of 2010 in O.S.No.179 of 2005 are under challenge at the instance of petitioner/defendant. 2. A final decree for partition was passed in the case on 25.08.2009 accepting Ext.P2, report and plan prepared by the Advocate Commissioner with the assistance of the Taluk Surveyor. In the said plan, the Advocate Commissioner allotted two cents with building to the share of petitioner. The said two cents abuts the public road on its north. A few months after passing of the final decree, petitioner filed I.A.Nos.57 and 58 of 2010 to set aside the final decree and condone the delay in filing that application. Petitioner claimed that she is informed that out of the two cents allotted to her as above stated, 0.5 cents is Government land and that it is to be taken possession by the local authority. On that premise, petitioner wanted to unsettle the final decree, reopen the allotments made and pass fresh final O.P.(C)No. 468 of 2011 2 decree. The said applications were objected by respondents. Learned Munsiff refused to condone the delay in filing I.A.No.57 of 2010 and consequently dismissed I.A.No.58 of 2010. 3. It is contended by the learned counsel that in fact question of delay in filing the application did not arise and hence, learned Munsiff went wrong in dismissing I.A.No.58 of 2010 as the application to condone the delay is dismissed. It is also contended by the learned counsel that petitioner is under threat of eviction from the 0.5 cents allotted to her and which forms part of the two cents allotted to her in the final decree. Learned counsel requested an opportunity to adduce evidence in that regard. 4. Learned counsel for respondents contended that the report and plan were prepared by the advocate commissioner with the assistance of the Taluk Surveyor and hence there is no scope for a contention that any portion of the property is Government land. It is pointed out by learned counsel that the applications are filed a few months after the final decree was O.P.(C)No. 468 of 2011 3 passed. Petitioner did not produce any evidence to substantiate the contention that 0.5 cents is part of Government land. It is also pointed out by learned counsel that the plot allotted to the petitioner contains a building and if a division is made by metes and bounds, petitioner will not get two cents out of the total extent of 10 cents. According to the learned counsel petitioner's plot abuts the main road while the rest of the properties are behind that plot. 5. I am not impressed by the view taken by the learned Munsiff that there is delay in filing I.A.No.58 of 2010 and since IA No.57 of 2010 for condonation of delay cannot be allowed, I.A.No.58 of 2010 cannot be taken into account. But other contentions raised by the parties requires consideration. 6. It is seen from Ext.P2, report and plan that petitioner was allotted two cents towards the northern extremity of the total extent and the said plot abuts the public road. It takes in a building also. In Ext.P2 report, the Advocate Commissioner has stated in paragraph 10 that there was survey stone on the O.P.(C)No. 468 of 2011 4 north-western corner of the total extent(ie, north-west of the plot of petitioner) and that on the east and west there were two other survey stones as well(on the side of the road)and measurement revealed that those survey stones are at its proper place. I must also bear in mind that the plan appended to Ext.P2 report is prepared by the Taluk Surveyor. Prima facie, it is difficult to accept, in the absence of cogent evidence that any portion of the plot allotted to the petitioner is Government land. 7. I must also bear in mind, alternatively, that even if the argument of petitioner is accepted, even according to the petitioner the extent of Government land involved is only 0.5 cents and petitioner is given a plot adjoining public road towards northern extremity of the total extent. Commissioner has also reported in paragraph 5 of Ext.P2, report that at the front portion of the building there is a lean- to like structure which is used as a shop room. Having regard to the above circumstances, I am not inclined to think that there must be a O.P.(C)No. 468 of 2011 5 reopening of the final decree and fresh allotment which will only disturb the existing allotment and possession. Having regard to the site of the plots and the circumstances stated above, I am not inclined to interfere with the ultimate order passed on I.A.No.58 of 2010. This Original petition is accordingly dismissed. sd/- THOMAS P JOSEPH, JUDGE /True copy/ P.A. to judge ln