IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 WP(C).No. 15512 of 2010(O) -------------------------- AGAINST THE ORDER DATED 17/03/2010 IN IA.113/2010 IN OS.335/2005 of MUNSIFF COURT,WADAKKANCHERRY .................... PETITIONER(S): --------------- RAMDAS, S/O. NARAYANAN NAMBOODIRI, SREEKRISHNA BHAVAN, CHERUTHURUTHY VILLAGE AND DESOM, TALAPPILLY TALUK. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): --------------- 1. KARTHIYANI AMMA, D/O.VADAKKE THATTAM THODIMBRAMBIKKAL LAKSHMI @ AMMALU AMMA, CHERUTHURUTHY VILLAGE AND DESOM, TALAPPILLY TALUK, VADAKKANCHERRY, PIN 679 531. 2. JANAKI AMMA, W/O.VADAKKE THETTAMTHODIMBRAMBIKKALVEETTIL RAGHAVAN, CHERUTHURUTHY VILLAGE, DESOM, TALAPPILLY TALUK, VADAKKANCHERRY, PIN 679 531. 3. BEENA,D/O. JANAKY AMMA, VADAKKE THATTAMTHODIBRAMBIKKAVEETTIL, CHERUTHURUTHY VILLAGE DESOM, TALAPPILLY TALUK' VADAKKANCHERRY, PIN 679 531. 4. PRIYA,D/O. JANAKY AMMA, VADAKKE THATTAMTHODIMBRAMBIKKAL VEETTIL, CHERUTHURUTHY VILLAGE DESOM, THALAPPILLY TALUK, VADAKKANCHERRY, PIN 679 531. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.15512 of 2010 -------------------------------------- Dated this the 20th day of May, 2010. JUDGMENT Defendant No.4 in O.S.No.335 of 2005 (respondent No.4 in I.A.No.1084 of 2008) is the petitioner before me. Respondent No.1/plaintiff filed the suit for partition and separate possession of her share against the petitioner and respondent Nos. 2 to 4/defendant No.1 to 3. Petitioner/defendant No.4 is the assignee of 9.263 cents out of the 12.500 cents referred to in the plaint schedule from respondent Nos.2 to 4. A preliminary decree was passed allotting one fourth share to respondent No.1/plaintiff. That was followed by proceedings for final decree on I.A.No.1084 of 2008 filed by respondent No.1/plaintiff. In the course of final decree proceedings an Advocate Commissioner was appointed to measure and divide the properties. Advocate Commissioner and the Surveyor did their work and submitted Exts.P3 and P4, reports and Ext.P4(a), plan. Petitioner/defendant No.4 was not agreeable to the report and plan since according to the Advocate Commissioner and Surveyor though the total extent stated in the preliminary decree schedule and the documents relied on by the parties is 12.5 cents in Survey No.774, on measurement the actual extent was found to be only 9.660 cents. Based on that plot A measuring 2.415 cents was allotted to the share of respondent No.1/plaintiff and the remaining 7.245 cents (plot B) was allotted to the share of petitioner/defendant No.4 being the assignee from respondent Nos.2 to 4. Petitioner objected to the measurement WP(C) No.15512/2010 2 and extent reported by the Advocate Commissioner and Surveyor. He filed Ext.P6, application to remit the reports and plan. That application was dismissed as per Ext.P8, order which is under challenge in this proceeding. Learned counsel would contend that measurement made by the Taluk Surveyor is not proper. Property on the west of suit property in the possession of respondent No.1/plaintiff takes in a portion of the decree schedule property which was not taken into account. 2. Petitioner has not adduced any evidence in support of his contention. It is seen from Exts.P3 and P4, reports submitted by the Advocate Commissioner and Surveyor and Ext.P4(a), plan that the total extent of land available in Survey No.774 which alone is described in decree schedule is only 9.660 cents. On the east of the said property is the railway property and on the north and south it is property in the possession of third parties. On the west it is property in the possession of respondent No.1/plaintiff but, that property was found on the survey to be comprised in Survey No.344. Ext.P4(a), plan shows that the survey boundary line between Survey Nos.774 and 344 has been specifically identified and marked. There is no case for petitioner or any of the contesting respondents that the property as per documents of title relied on by them took in any portion of the property comprised in Survey No.344. In that situation learned Munsiff is correct in overruling the objection raised by petitioner and dismissing Ext.P6, application. I do not find reason to interfere. WP(C) No.15512/2010 3 3. Though the learned counsel for petitioner contended that the allotment of plots between petitioner and respondent No.1 is not proper, nor convenient for their use, that is not a matter to be considered in this Writ Petition. It is open to the petitioner to raise that contention in the final decree proceedings if objection in that line has been raised. Writ Petition is dismissed with the above observation. THOMAS P.JOSEPH, Judge. cks