IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 FAO.No. 134 of 2008() IA. 2536 /2003 IN OS.89/2002 OF PRINCIPAL SUB COURT,KOLLAM APPELLANT/PETITIONER/PLAINTIFF JACOB, S/O.JAMES, KURISSADI KIZHAKKATHIL MATHILIL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.K.S.MANU (PUNUKKONNOOR) SRI.P.SREEKUMAR RESPONDENTS: RESPONDENTS/DEFENDANTS 1. RAMACHANDRAN BABY, SYAM NIVAS, MEENATHUCHERRY, SAKTHIKULANGARA VILLAGE. 2. RAMACHANDRAN SYAM, SYAM NIVAS, MEENATTUCHERRY, SAKTHIKULANGARA VILLAGE. 3. BABY RANI, SYAM NIVAS, MEENATHUCHERRY, SAKTHIKULANGARA VILLAGE. 4. BABY NIMMY, SYAM NIVAS, MEENATHUCHERRY, SAKTHIKULANGARA VILLAGE. 5. TAHSILDAR, KOLLAM TALUK. BY ADV. SRI.V.V.RAJA FOR R1,3,4 SRI.M.T.SURESHKUMAR FOR R1,3,4 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO. 2156/2008 IN F.A.O. 134/2008 // DISMISSED // 2.7.2008 SD/-, P.R. RAMAN, (JUDGE). SD/-, T.R. RAMACHANDRAN NAIR, (JUDGE) // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. NO. 134 OF 2008 = = = = = = = = = = = = = = = DATED THIS, THE 2ND DAY OF JULY, 2008. J U D G M E N T Raman, J. This appeal is against the order in I.A. 2536/2003 in O.S. 89/2002 passed by the Sub Court, Kollam, dismissing the application. The said application was filed by the appellant herein seeking a declaration that he is an indigent person. 2. The court below, on an appreciation of the evidence on record, found that the appellant/petitioner is not an indigent person. In that regard, the court below has referred to the report of the Village Officer as also the evidence of PW.3. According to the court below, Ext. B1 report of the earlier Village Officer will show that the plaintiff is having 4.43 Areas of land in Thrikkadavoor Village and he is engaged in the sale of second hand building materials. 3. On a careful consideration of the order impugned in this appeal, we find that the court below has placed heavy reliance on Ext.B1 report and no reliance is placed on the later report Ext.A1. Admittedly, when a latest F.A.O. 134/2008 :2: report is filed in the case as Ext.A1, the court below ought to have looked into the said report rather than placing reliance on the earlier report. Whether as on the date of filing the suit, the petitioner is an indigent person, is the question. We have gone through Ext.A1 report, wherein the Village Officer has reported that there is an extent of 04.20 Ares of land in the name of the petitioner's father who is no more and an extent of 05.40 Ares in the name of his mother, who is still alive, that the parents of the petitioner have got other four children and the abovesaid properties in the name of the parents are not partitioned among the children. If so, the extent of 04.20 Ares belonging to his father will devolve on his legal heirs namely, the wife and children equally. That means there is only a fractional interest which the petitioner could claim in the property of his deceased father. Whether he has got any disposable interest in the said item and whether he is in a position to pay the court fee is a matter which the court below has not considered. Since the entire property cannot be said to be belong to the appellant herein, the court below was not justified in dismissing the application. 4. Accordingly, the order passed by the court below is set aside. It F.A.O. 134/2008 :3: is open to the appellant/petitioner to adduce further evidence in this regard regarding the income derived from the sale of old building materials. The F.A.O. is disposed of as above. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-