IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 OP(C).No. 96 of 2010(O) ----------------------------- AGAINST THE ORDER DATED 25/09/2009 IN IA.1245/2009 IN OS.67/2004 of SUB COURT, MANJERI .................... PETITIONERS ----------------- 1. THRESSIAMMA BABY, W/O. MUKKATT VARGHESE @ OUSEPH BABY, 'MUKKATT HOUSE', VELLILA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 2. REJI BABY, S/O. MUKKATT VARGHESE @ OUSEPH BABY, 'MUKKATT HOUSE', VELLILA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAJESH KORMATH RESPONDENT(S): -------------------- 1. LOVELY BABY, W/O. POOTHET JIJI JOHN, CRESCENT HIGH SCHOOL, ADAKKAKUNDU P.O., KALIKAVU (VIA), NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-676 575. 2. JANCY BABY, W/O. K.V.JOSEPH, 'KARUVALLIL HOUSE', CHANDRA NAGAR HOUSING COLONY, CHANDRA NAGAR P.O., PALAKKAD DISTRICT,PIN-678007. 3. RINNI BABY, W/O. M.SEBASTIAN, 'EATTATHOTTE HOUSE', ADAKKAKUNDU P.O., KALIKAVU (VIA), NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-676 575. 4. JAIMON, S/O. MUKKATT VARGHESE @ OUSEPH BABY, 'MUKKAT HOUSE', VELLILA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679324. 5. JINCY BABY, W/O. BENNY AUGUSTINE, 'PULIYAMPARAMBIL HOUSE', CHOORAMUNDA, KANNOTH P.O., KODENCHERY (VIA), KOZHIKODE DISTRICT-673 580. R1 BY ADVS. SRI.K.V.SOHAN SRI.K.DILIP R2 BY ADV. SRI.S.A. SAJU. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2011, ALONG WITH OPC. NO.103/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs OP(C).No. 96/2010(O) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT DATED 30/06/2004 IN O.S.NO.67/2007,ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. P2: COPY OF THE WRITTEN-STATEMENT DATED 31/10/2004 FILED JOINTLY BY THE PETITIONER AND THE FOURTH RESPONDENT. P3: COPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 30/11/2009 FILED BY THE PETITIONERS. P4: COPY OF THE AFFIDAVIT DATED 18/02/2008 ACCOMPANYING I.A.NO.328/2008 IN O.S.NO.67/2004 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. P5: COPY OF THE INTERIM REPORT DATED 09/12/2008FILED BY THE COMMISSIONER IN O.S.NO.67/2004 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. P6: COPY OF THE STATEMENT DATED 13/01/2009 IN O.S. NO.67/2004 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. P7: COPY OF THE REPORT DATED 02/04/2009 SUBMITTED BY THE COMMISSIONER IN O.S.NO.67/2004 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. P8: COPY OF THE PLAN DATED 02/04/2009 SUBMITTED BY THE COMMISSIONER. P9: COPY OF THE AFFIDAVIT DATED 06/07/2009 ACCOMPANYING I.A.NO.1245/2009 P10: COPY OF THE ORDER DATED 25/09/2009 IS I.A.NO.1245/2009 IN O.S.NO.67/2004 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs HARUN-UL-RASHID,J. ------------------------------- O.P.(C). NOS.96 & 103 OF 2010 ------------------------------- DATED THIS THE 13TH DAY OF JANUARY, 2011 JUDGMENT Defendants 1 and 4 in O.S.No.67/04 on the file of the Sub Court, Manjeri are the petitioners herein. O.P.No.103 is filed challenging Ext.P7 order allowing lA.No.2401/09 filed for amendment of the plaint. The learned Sub Judge finding that the objections are sustainable, permitted the plaintiff to amend the plaint. The connected O.P.(C)No.96/10 is filed by defendants 1 and 4 challenging the order in IA.1245/09 filed by defendants 1, 4 and 5 for setting aside the commission report and plan. The learned Sub Judge dismissed the said IA finding that no grounds are made out to set aside the commissioner's report and plan. The impugned orders are marked as Exts.P7 and P10 in O.P.(C) Nos.103/10 and 96/10 respectively. 2. Plaintiff is the lst respondent in these original petitions. Defendants in the suit are her mother, brother and sisters. The suit was for partition and separate possession of her -2- O.P.(C).Nos.96 & 103/2010 1/7 share over plaint B schedule property and claiming other ancillary reliefs. The plaint B schedule property admittedly belongs to the father of the plaintiff, who is the predecessor-in-interest of the parties to the suit. Plaintiff claimed share as one of the legal heirs of the deceased father. Her case is that as per the provisions of the Indian Succession Act she is entitled to 1/7 share in the property. The extent of property available for partition is shown as 18.38 acres. 3. Defendants disputed the identity of the property and the extent of property held by the deceased father. According to them, the extent of property covered by document No.2290/66 in the name of the father was not 39.56 acres. In the plaint the correct extent is only 27 acres 92.75 cents. Defendants also contended that it was from out of the said 27 acres 92.75 cents that various assignments and gifts as mentioned in paragraph 3 of the plaint are made by them. The plaintiffs' case is that plaint B schedule property liable to be partitioned has got an extent of 18.38 acres. -3- O.P.(C).Nos.96 & 103/2010 Defendants disputed the said extent, identity and survey number of the land available for partition. In the circumstances, the plaintiffs prayed for issuance of a commission to submit a report and to identify the properties assigned/gifted away by deceased father as per document Nos.534/87 and 537/87 in favour of the plaintiff and defendants 1, 4 and 5. The plaintiff prayed to submit a plan of the property covered by document No.2290/66 showing the boundaries, survey numbers, names and extent. Ext.P2 is the application for issuance of a commission. The Commissioner deputed by the court below submitted a report and plan marked as Exts.P3 and P4. The Commissioner inspected the plaint schedule properties on 11 occasions in order to identify the plaint schedule properties covered by different assignment deeds. It is reported that the plaintiff's husband was present through out the inspection. The lst defendant was present only on one occasion and all the other defendants remained absent through out the inspection. In fact, the Commissioner was compelled to identify the properties covered by -4- O.P.(C).Nos.96 & 103/2010 different assignments and gift deeds and the plaint schedule properties available for partition in the absence of the defendants and without their co-operation. The Commissioner in Ext.P3 reported that the total extent of the plaint schedule property is 27.86 acres excluding the land taken for construction of a road. The report also shows that different plots identified are covered by different documents. The Commissioner also reported that after deducting the extents claimed by the parties, the total extent available for partition comes to 10.28 acres. The defendants in the suit denied the identity of the properties shown in the plaint and the identity of the properties available for partition. A Commissioner was deputed in that context. The plaintiff in the suit filed IA.No.2401/09 for amendment of the plaint in the light of the report submitted by the Commissioner. Ext.P5 is the application for amendment of the plaint. In paragraph 3 of the affidavit it is stated that at the time of filing the suit no documents with her to mention about the correct -5- O.P.(C).Nos.96 & 103/2010 extent of properties belonging to her father and those properties assigned by him in favour of the plaintiff and defendants. In the light of the Commissioner's report the plaintiff wanted to amend and substitute the extent of properties covered by different assignment deeds/gift deeds and also the extent available for partition. According to her, the extent shown in the plaint was tally with the extent shown by the Commissioner after measurement and therefore she wanted to substitute the correct extent shown mistakenly. It is also averred in paragraph 3 of the affidavit that 1/7 share claimed in the suit is incorrect in view of the provisions of the Indian Succession Act. It is stated that on the death of her father mother is entitled to 1/3 of the properties and the balance alone can be claimed by his children in equal shares therefore it is stated that the share to which the plaintiff is entitled to only 3/18 in stead of 1/7 share claimed in the plaint. It is also averred in the affidavit that she committed further mistake stating that her father had assigned an extent of 6.08 acres in favour of her -6- O.P.(C).Nos.96 & 103/2010 mother which statement is not correct. For all these reasons the plaintiff wanted to substitute the mistaken averments in the plaint. The defendants opposed the amendment application. The trial court by Ext.P7 order examined the amendment application on merit. The court rightly observed that the correctness of the proposed amendment need not be considered at this stage and that the merits of the contention can be considered at the stage of trial and that the objections raised by the defendants are in respect of the merits of the amendment and therefore held that the objections are not found sustainable and allowed the application. IA.No.1245/09 in O.P.(C) No.96/10 was filed by defendants 1, 4 and 5 seeking to set aside the report and plan of the Commissioner. The learned counsel for the petitioners/defendants pointed out that the Commissioner has not identified the properties covered by the assignment deeds/gift deeds and pointed out that in Ext.P8 plan the Commissioner fully identified the survey boundaries and the boundaries of the properties which according to -7- O.P.(C).Nos.96 & 103/2010 the Commissioner, are in possession of the respective parties. According to the learned counsel, the court below failed to note of the fact that Ext.P6 statement that the copies of the title deeds produced by the petitioners and the properties were pointed out by the commissioner. According to the petitioners, unless the properties belonged to the deceased father and claimed by the parties to the suit are identified with respect to the respective title deeds cannot be sold. The commissioner inspected the plaint schedule properties on 11 occasions. The defendants are absent on all of his inspection on 22/10/08. The lst defendant alone was present in one occasion and all other defendants remained absent through out the inspection. The Commissioner identified the properties in the absence of the defendants. It is true that the defendants did not co- operate with the commissioner while the inspections were made. In the interest of justice, this Court is of the view that the grievance of the petitioners can be remedied by directing the same -8- O.P.(C).Nos.96 & 103/2010 Commissioner to identify the properties once again, after affording an opportunity to them. The parties to the suit shall produce all the documents i.e. assignment deeds/gift deeds executed by the father before the court below for appropriate identification of the properties within three weeks from the date of appearance of the parties. It is necessary for the identification of the properties covered by the assignment deeds/gift deeds and for the purpose of identification of the properties available for partition. The court below shall depute the same Commissioner for identification of the properties and the Commissioner, after identification and measurement of the properties with the help of a Surveyor, shall submit a revised report before the court below within one month from the date of deputation. The Commissioner's and Surveyor's batta shall be paid by the petitioners. The Commissioner's report and plan produced as Exts.P7 and P8 in O.P.(C)No.96/10 are set aside. I.A.Nos.2401/09 and 1245/098 are also set aside. The parties shall file an application for amendment, if so advised, after the -9- O.P.(C).Nos.96 & 103/2010 submitting the revised report by the Commissioner. The parties shall appear before the court below on l8/2/2011. Original Petitions are disposed of as above. HARUN-UL-RASHID, Judge. kcv.