IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 WP(C).No. 6579 of 2008(G) ------------------------- (O.S.273/07 OF ADDL.MUNSIFF COURT, KASARGOD) PETITIONER: ------------ SUMATHY, D/O KUNHAPPAN NAIR, RESIDING AT BENUR IN PERUMBALA VILLAGE AND POST, KASARGOD TALUK BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENTS: ------------- 1. KUNHIKANNAN NAIR 2. RAMANY, W/O KUNHIRAMAN NAIR 3. PARVATHY W/O KUNHAMBU NAIR 4. THAMBAYI W/O KUNHIRAMAN NAIR 5. NARAYANI, W/O LATE MUTHU NAIR (ALL ARE CHILDREN OF KUNHAPPAN NAIR, RESPONDENTS 1,2,4 AND 5 ARE RESIDING AT BENUR IN PERUMBALA VILLAGE AND POST, KASARGOD TALUK. RES.3 IS RESIDING AT KODAVALAM OF PULLUR VILLAGE, HOSDURG TALUK P.O. PULLUR.) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 6579 OF 2008 --------------------- Dated this the 26th day of February, 2008 JUDGMENT This writ petition is preferred against the order of the Additional Munsiff, Kasargod in IA 41/08 in OS 273/07. It was an application filed for issuance of a Commission. The suit is one for partition. The plaintiff is the applicant for the issuance of a commission. A perusal of the affidavit in IA 41/08 would show that the petitioner's property comprised in R.S. No. 121/E is having an extent of 11 cents, as contended by the other side, is also liable for partition. But the plaintiff would contend that it is an independent property, which belonged to her, as per orders passed by the authorities under LA 4/03 dated 1.7. 05. It is contended that the house situated therein is constructed by the plaintiff and the lie of the land, age of the improvements made therein etc, would convincingly establish that it is an independent item of property, which belongs to the plaintiff exclusively. So when a Commissioner visits the property these facts can be verified which will be of immense help to the court for proper disposal of the case. WPC NO 6579/08 2 2. The court below did not advert to the averments in the application but held that being a suit for partition, it is not necessary to have a Commission issued at this stage. I feel that the court below has failed to understand the scope of the contention that resulted in passing an order of this nature. 3. Therefore the order requires interference and therefore it is set aside. The petition for issuance of Commission is allowed and the court below is directed to issue a commission, permit both sides to file a work memo in respect of their respective contentions and then dispose of the matter in accordance with law. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 6579/08 3 WPC NO 6579/08 4