IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 WP(C).No. 22916 of 2009(O) -------------------------- OS.274/2005 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): --------------- PUTHUKAYIL PUTHIYAMALIYEKKAL, KADERKUTTY'S SON, MUHAMMED HAJI, TIRUR TALUK, THALAKKAD AMSOM, DESOM, PO B.P.ANGADI. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. P.P.HAMZA @ KOYAMU HAJI'S SON ABDUL LATHEEF. 2. P.P.ALIKUTTY HAJI'S CHILDREN: BEEMAKUTTY. 3. NASEERKHAN.P.P. 4. P.P.ASYA. 5. P.P.SALIM. 6. P.P.ALIKUTTY'S WIFE, AYISHAKUTTY. 7. P.P.HAMZA @ KOYAMU HAJI'S CHILDREN: BASHEER AHAMMAD. 8. P.P.MUHAMED @ IMBICHI. 9. P.P.HAMZA @ KOYAMU HAJI'S WIFE, AYISHAKUTTY. 10. PUTHUKAYIL PUTHIYAMALIYEKKAL MUHAMMED HAJI'S SON, KADERKUTTY, TIRUR TALUK, THALAKKAD AMSOM DESOM, PO BP ANGADI. (R1 TO R9-ALL RESIDING AT TIRUR TALUK, THALAKKAD AMSOM, DESOM, PO BP ANGADI). ADV. SRI.JAMSHEED HAFIZ FOR R2 TO 6,9 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.22916 OF 2009 (O) ----------------------------------- Dated this the 16th day of September, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records leading to Ext.P5 dated 26.6.2009 in I.A.No.3047/2008 on the file of the Munsiff Court, Tirur and peruse the same; ii. to issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P5. iii. to issue a writ of mandamus, or any other appropriate writ, order or direction, directing the learned Munsiff Tirur, to remit the Commission Report and Plan to the same Commissioner for ascertaining the details sought for in I.A.No.3047/2008 for a just decision in the case. 2. The 1st defendant in O.S.No.274 of 2005 on the file of the Munsiff Court, Tirur is the petitioner, and the respondents WPC.22916/09 2 are the plaintiff and co-defendants in the suit. Petitioner has filed objections to the commission report seeking for its remission to substantiate his objections that some of the properties included in the plaint are not available for partition. Suit is now in the preliminary stage and a preliminary decree is yet to be passed. Ext.P5 is the order passed by the court below declining the request of the petitioner/1st defendant to remit the report holding that the property available for partition can be determined in final decree proceedings after passing of the preliminary decree. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. The learned counsel for the petitioner submits that the entire properly scheduled in the plaint is not available for partition, and the area available is only for a small extent which has to be determined before the passing of the preliminary decree. On the other hand, the learned counsel for the respondents WPC.22916/09 3 submitted that in considering the passing of a preliminary decree in a suit for partition, whether the plaintiff and other parties, who claimed share have a right over the property alone arise for consideration, and the actual determination of the property as to its extent and also the divisions to be effected are to be considered only in the final decree proceedings. I find considerable force in the submissions made by the learned counsel for the respondents. I find no impropriety or illegality in Ext.P5 order passed by the court below. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp