IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 10237 of 2009(O) --------------------------------------- OS. NO.265/1990 OF MUNSIFF COURT, MANJERI. .................... PETITIONERS: --------------------- 1. KARUTHEDATH AYSHA, W/O. ABDULLA, 54 YEARS, VANIYAMBALAM AMSOM DESOM, NILAMBUR TALUK. 2. KARUTHEDATH NADEERA, D/O. ABDULLA, 27 YEARS, VANIYAMBALAM AMSOM DESOM, NILAMBUR TALUK. 3. HASEENA, D/O. ABDULLA, 25 YEARS, VANIYAMBALAM AMSOM DESOM. 4. FOUSI, D/O. ABDULLA, 22 YEARS, VANIYAMBALAM AMSOM DESOM. 5. ASLAM, S/O. ABDULLA, 20 YEARS, VANIYAMBALAM AMSOM DESOM. BY ADVS. MR.JOSEPH SEBASTIAN PURAYIDAM, SMT.MABLE.C.KURIAN. RESPONDENTS: ------------------------ 1. K.T. SAIFUDHEEN, S/O. ABDULLA, 35 YEARS, KARUTHEDATH, VANIYAMBALAM AMSOM DESOM. W.P.(C). NO.10237/2009-O: *2. PATTIKKADAN AYISA, W/O. ABDULLA, 62 YEARS, VANIYAMBALAM AMSOM, MUDAPPILASSERI DESOM, NILAMBUR TALUK. *DELETED FROM PARTY ARRAY AS PER ORDER DTD. 01/04/09. R1 BY ADV. MR.V.R.KESAVA KAIMAL, MR.N.M.MADHU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.10237/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PRELIMINARY JUDGMENT PASSED BY THE MUNSIFF COURT, MANJERI IN O.S. NO. 265/1990 DTD. 27/09/1991. EXT.P.2: COPY OF THE FINAL DECREE PASSED BY THE MUNSIFF COURT, MANJERI AT THE INSTANCE OF THE APPLICATION FILED BY THE R.1. DTD 18/02/95. EXT.P.3: COPY OF THE I.A. 1994/2007 FILED FOR REOPEN THE FINAL DECREE DTD. 18/02/1995. EXT.P.4: COPY OF THE I.A. 1995/2007 FILED FOR ACCEPTING THE COURT FEE AND TO ALLOT PLAIN B IN EXHIBIT C1 TO THE PETITIONERS. EXT.P.5: COPY OF THE COMMON ORDER OF THE COURT BELOW IN I.A. 1994/2007 AND I.A. 1995/2007 IN I.A. NO. 610/92 IN O.S. NO.265/90. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). No. 10237 OF 2009 = = = = = = = = = = = = = == = = = = = = = Dated this the 20th day of July 2009. JUDGMENT The defendants 2 to 6 in O.S.No.265/1990 on the file of the Munsiff Court, Manjeri, after passing of a final decree in the above suit for partition whereunder separate allotment of shares was granted only to the plaintiff and the first defendant, moved two applications for alloting to them the 'B' schedule property, as shown in C1 plan, condoning the delay in remitting the court fee payable thereof. P2 is a copy of the application filed by them to reopen the final decree passed by the Court and P4, copy of the application, for receiving the court fee payable towards the allotment of the plot prayed for. Notice being given the plaintiff filed objections contending that such applications are not entertainable after the passing of the final decree and also that even if the applications are otherwise found entertainable it was barred by limitation. The learned Munsiff after hearing both sides, dismissed the applications. W.P.(C). No. 10237 OF 2009 2 2. I heard the Counsel on both sides. Perusing Ext.P5 order impugned in the petition with the materials produced and having regard to the submissions made by the Counsel on both sides, I find the rejection of the applications Exts. P3 and P4 by the learned Munsiff has to be sustained though for different reasons. Ext.P1 is the preliminary judgment passed in the suit. It is seen from Ext.P1 judgment, the present petitioners resisting the claim of the plaintiff for partition contended that they have absolute right over the property. They did not seek for partition of their shares, if any, even as an alternate relief. No preliminary decree was passed in favour of these petitioners. When that be so, after passing of the final decree in the suit, it is not open to these petitioners to whom no allotment was made for reopening of the final decree and seek an allotment of share accepting the court fee payable on the basis of the demarcation of the plots, which they may be entitled to, by the advocate commissioner appointed in the final decree proceedings. The petitioners have to work out their remedies to claim 'B' plot in C1 plan by taking appropriate proceedings as envisaged by law and they cannot claim the relief as sought for under Exts. P3 and W.P.(C). No. 10237 OF 2009 3 P4 applications in the present suit in which final decree has already been passed. Reserving the right of the petitioners to seek reliefs, if any, in the appropriate forum, as provided by law, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE kkms/