IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 OP(C).No. 827 of 2010(O) ------------------------ OS.177/2009 SUB COURT, ATTINGAL .................... PETITIONER (S): -------------------- VIJAYAKUMAR, S/O.SIVANANDAN, AGED 48 YEARS, KOPRAKOOTTIL VEEDU, TOLL MUKKU, AVANAVANCHERRY VILLAGE, AVANAVANCHERRY DESOM 695 103, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. SMT. NAYANA, D/O.NALINI, AGED 40 YEARS, RESIDING AT KARTHIKA, ANATHALAVATTOM,CHIRAYINKIL VILLAGE 695 304, THIRUVANANTHAPURAM DISTRICT. 2. NEETHI VASUNTHARA, ALLEGED ADOPTED D/O.SMT.NAYANA,MINOR AGED 9 YEARS, RESIDING AT KARTHIKA, ANATHALAVATTOM, CHIRAYINKIL VILLAGE 695 304,' THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY HER GUARDIAN AND NEXT FRIEND NAYANA, IST RESPONDENT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------- O.P.(C).No.827 of 2010 --------------------------------------- Dated this the 10th day of March, 2011 JUDGMENT The petitioner filed O.S.No.177 of 2009 on the file of the Sub Court, Attingal against the respondents for partition of the plaint schedule properties into two equal shares and for allotment of one such share to the plaintiff. The defendants are the widow and daughter of the deceased brother of the plaintiff. A preliminary decree was passed on 31st May, 2010 on the ground that the parties have no objection in passing a preliminary decree as prayed for in the plaint. 2. Thereafter, the petitioner/plaintiff filed I.A.No.1385 of 2010 to review the preliminary judgment and decree. The reason stated for review is that after the death of the father of the plaintiff to whom the plaint G schedule O.P.(C) No.827/2010 2 belonged, that property was being managed by the plaintiff. The plaintiff planted rubber trees in plaint A to D schedule properties. The plaintiff could not claim for reservation of special rights in the preliminary decree since the plaintiff was not informed by the counsel the date on which the suit was posted. The plaintiff is entitled to get independent and special rights in respect of some of the items of properties. To that extent, the preliminary decree is liable to be reviewed. 3. The application was resisted by the defendants. They contended that the plaintiff had no claim in the plaint that he should be given some special rights or equities or reservation. The court also dismissed the application for review, which is challenged in this Original Petition. 4. As prayed for in the plaint, the plaintiff was ready for partition and to share the properties. It is also stated in the plaint that the defendants wanted exclusive rights over the O.P.(C) No.827/2010 3 plaint F schedule item. It was clearly expressed in the plaint that all the properties are to be divided and no special rights could be granted to the defendants. In the written statement filed by the defendants, it was contended that partition could not be materialised since the plaintiff wanted special rights in respect of G schedule property. Even after that contention was raised by the defendants, the plaintiff did not think it fit to amend the plaint or claim any special rights in respect of the plaint G schedule property. When the suit was taken up for trial, both sides submitted that a preliminary decree can be passed in terms of the plaint. Accordingly, the preliminary decree was passed. The court below was right in dismissing the review petition. No grounds are made out for interference. The Original Petition is accordingly dismissed. K.T.SANKARAN JUDGE csl