IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 CRP.No. 13 of 2009() -------------------- AGAINST THE ORDER DATED 29/11/2008 IN IA.5836/2007 IN OS.488/2002 of ADDL.MUNSIFF COURT, KOLLAM .................... PETITIONER/PETITIONER/1ST DEFENDANT: ------------------------------------------------------------------ MURALEEDHARAN, AGED 64 YEARS, S/O.NANU, GURUMANDHIRAM, MURUNTHAL CHERRY-B, PERINAD P.O.ANCHALUMMOOD, KOLLAM. BY MR.N.DHARMADAN, SENIOR ADVOCATE, SMT.D.P.RENU. RESPONDENT(S): CR.PETITIONERS: ------------------------------------------------------ 1. SARASWATHYKUTTY,AGED 69 YEARS, W/O.SIVANANDHAN, POIKAYIL, NEDUMGOLAM CHERRY, PARAVOOR, KOLLAM. 2. VIJAYARAJAN,AGED 62 YEARS, VARNAM, PATTATHANAM, KOLLAM. 3. VINAYABABU, AGED 54 YEARS, S/O.NANU, ANANDHA BHAVANAM, PATTATHANAM, KOLLAM. 4. SARASWATHY, AGED 70 YEARS, W/O.SADHANANDHAN, PANACHIVILA, MEVARAM, THATTAMALA, KOLLAM. 5. PADMAVATHY, AGED 62 YEARS, W/O.RAVIKUMAR, ANANDHA BHAVAN, PATTATHANAM,KOLLAM. 6. PADMADEVI,AGED 54 YEARS,W/O.VISWAMBHARAN, 'USHUS', SAKTHIKULANGARA, KOLLAM. 7. DEEPTHI VISWAN, AGED 27 YEARS, D/O.PADMADEVI, 'USHUS', SAKTHIKULANGARA, KOLLAM. R2 BY ADV. MR.JOHNSON GOMEZ THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.59/2009 IN C.R.P.NO.13/2009 DISMISSED 23/06/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.13 OF 2009 (E) ----------------------------------- Dated this the 23rd day of June, 2009 O R D E R The petitioner is the 1st defendant in O.S.No.488/2002 on the file of the Additional Munsiff Court, Kollam. In the above suit, a preliminary decree was passed in favour of the plaintiff/1st respondent herein allotting her 1/32 share in the plaint property. Challenging the preliminary decree, the 1st defendant had preferred an appeal, in which, a modification was made that the decree granted declaring that Ext.A1 partition deed was liable to be set aside is not correct as such challenge was barred by limitation. In all other respects, the preliminary decree passed in favour of the plaintiff was confirmed with liberty to the present petitioner/1st defendant also to move a supplementary preliminary decree. The 1st defendant thereupon after the disposal of that appeal, moved an application for a supplementary preliminary decree. A supplementary CRP.13/2009 2 preliminary decree in his favour was passed allotting him 1/6 th share in 31/32 of the plaint property. The petitioner/1st defendant moved an application for passing a final decree in which a Commissioner was appointed to measure and allot the property to him. Report filed by the Commissioner was objected to by the petitioner on the ground that he has not calculated the share due to the petitioner in respect of the building situated in the plaint property in tune with the preliminary decree passed in his favour and also of the share due to him in respect of some trees which were cut and removed during the pendency of the proceedings, the amount of which was in deposit of the court. The learned Munsiff, after considering the objections, found that the present petitioner had not set up any right over the building in the property and the facts and circumstances of the case indicated that those buildings were put up by the sharers pursuant to the partition deed entered by him which was sought to be set aside by the plaintiff while seeking a decree for allotment of a separate share. But in respect of the amount in deposit as collected from the sale of the trees cut and removed, the court CRP.13/2009 3 found that the Commissioner has to be directed to assess the share of the petitioner and an order was passed in the lines indicated as above. The present revision is filed impeaching that order to the extent the learned Munsiff declined the claim of the petitioner to have an assessment value of the buildings in the holding in consonance with the shares allotted to him under the preliminary decree. 2. I heard the learned counsel for the petitioner and also the counsel for the 2nd respondent. The short question emerging for consideration is whether there is any impropriety or illegality or any jurisdictional error in the order passed by the learned Munsiff declining the request of the petitioner to have the buildings assessed and the share value allotted to him in respect of the buildings in accordance with the division of the shares made in his favour under the preliminary decree. The claim of the petitioner cannot be viewed in isolation but in the backdrop of the entire case that till the passing of the supplementary preliminary decree, he had resisted the claim of the plaintiff contending that there CRP.13/2009 4 was a partition of the property under the partition deed executed by the other sharers. The facts and circumstances presented in the case would also indicate that after executing such a partition deed, the sharers had put up buildings in the allotment made in their favour. The petitioner has no case that he has constructed a building in the subject mater, the property involved in the suit. When that be so, I do not find any impropriety or illegality in the order passed by the learned Munsiff holding that his claim over the buildings cannot be sustained, and no direction need be issued to the Commissioner to assess the value of the building situated in the property. Revision is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp CRP.13/2009 5 S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009