IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 6616 of 2008(K) ------------------------- OS.55/1997 of SUB COURT, MANJERI .................... PETITIONER: ---------------------- M.P.GANGADHARA MENON, AGED 77 YEARS, S/O. P.C.MARUMAKAN RAJA, MANNOOR AMSOM AND DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT: ------------------------ THAYATT BALAN, AGED 78 YEARS, S/O. V.C.NAMBIAR, CHEVAYOOR AMSOM & DESOM, KOZHIKODE TALUK. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.6616/2008 K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION SUBMITTED BY THE RESPONDENT TO SET ASIDE THE REPORT OF THE COMMISSIONER IN I.A.257/04. EXT.P2: COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONER IN I.A.1382/06. EXT.P2(A): COPY OF ARGUMENT NOTE IN I.A.1382/06 IN O.S.55/97 SUB COURT, MANJERI. EXT.P3: COPY OF THE ORDER DTD. 15/01/08 PASSED BY THE SUBORDINATE JUDGE, MANJERI IN I.A.NO.1382/06 IN I.A.NO.857/04 IN O.S.55/97. EXT.P4: COPY OF THE DOCUMENT NO.3763 DTD. 20/05/08 EXECUTED BY THE PETITIONER IN FAVOUR OF AMARCHAND. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.6616 OF 2008 =========================== Dated this the 28th day of August, 2008 JUDGMENT Plaintiff in O.S.55/1997 on the file of Sub Court, Manjeri is the petitioner. Defendant is the respondent. A preliminary decree for partition was passed. I.A.857/2004 an application for passing a final decree was filed. A Commissioner was appointed to divide the property in accordance with the preliminary decree. Commissioner submitted report and plan identifying the property and dividing the same. Respondent filed I.A.1382/2006 an application to set aside the report and plan submitted by the Commissioner. Under Ext.P3 order, learned Sub Judge allowed the application and set aside the report and plan and directed respondent to deposit Rs.3000/- as batta for appointment of another Commissioner to execute the work with the assistance of Taluk Surveyor. This petition is filed under Article 227 of the Constitution of W.P.(C)6616/2008 2 India challenging Ext.P3 order. 2. Learned senior counsel appearing for petitioner and learned counsel appearing for respondent were heard. 3. Under Ext.P3 order learned Sub Judge found that the Commissioner has not identified the decree schedule property in accordance with the descriptions in the decree and therefore found that the report and plan cannot be relied on and set aside the same. The argument of the learned senior counsel is that the Commissioner can identify the property on the basis of the decree and even if there is discrepancy in the boundary, for that reason, it cannot be said that the property is not identified. The decree shows that eight items were available for partition which are to be divided between the petitioner and respondent. The Commissioner has to identify the property covered under the decree and thereafter divide the property as directed in the preliminary decree. The report and plan prepared by the Commissioner show that the W.P.(C)6616/2008 3 properties were not properly identified. It is in such circumstances, they were set aside and a new Commissioner was appointed. If Commissioner finds any difficulty for proper identification of the properties, Commissioner can seek necessary directions from the court. Commissioner has first to identify the eight items of plaint schedule properties and thereafter divide the property in accordance with the preliminary decree. The parties are entitled to file objection when the Commissioner submits the report and plan in pursuant to Ext.P3 order. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006