IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 CRP.No. 18 of 2008() -------------------- AGAINST THE ORDER DATED 17/10/2007 IN IA.243/07 IN OS.321/1998 of PRINCIPAL SUB COURT,NORTH PARAVUR .................... REVN. PETITIONERS/PETITIONERS/PLAINTIFFS --------------------------------------------------------- 1. HABEEBA, D/O. C.USMAN, 'AYSHAS', THOTTAKKATTUKARA, ALUVA-683 108. 2. NAZEEBA, D/O. C.USMAN, -DO- -DO- 3. FATHIMA, D/O. C.USMAN, -DO- -DO- 4. SUMMAYA MARIAM, D/O. C.USMAN, -DO- -DO- 5. MUHAMMED FALAH, S/O. C.USMAN, -DO- -DO- BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A RESPONDENTS: RESPONDENTS/DEFENDANTS ------------------------------------------------------- 1. SAFIYA, W/O. C.USMAN, PEES COTTAGE, XI/283, KADUNGALLOOR PANCHAYATH, U.C.COLLEGE P.O., ALUVA. 2. SHAMMNA, D/O. USMAN, -DO- -DO- BY ADV. SRI.M.A.ABDUL HAKHIM(CAVEATOR) THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = C.R.P. NO. 18 OF 2008 = = = = = = = = = = = = = = = Dated this the 30th day of January, 2008. O R D E R This revision petition is preferred against the order in I.A.243/07 in O.S.321/98 of the Principal Subordinate Judge, North Paravur. It was an application filed by the plaintiffs to review the final decree passed by the Court below. The brief facts necessary for the disposal of the writ petition are stated as follows. The Court passed a preliminary decree in O.S.321/98 whereby the Court directed division of items 1, 2, 4 to 6 and 8 of plaint A schedule property into eight equal shares and to allot six such shares jointly to the plaintiffs and two shares jointly to the defendants. So far as item 3 is concerned the Court found that half right in item No.3 is partible and directed division in the above proportion mentioned above. So far as item 9 is concerned, the Court below allotted ¼th right of deceased Usman has to be divided into 8 equal shares and try to allot shares as mentioned above. The Court also held that item 7 is not available for partition and the liability and the share of profits is left open CRP NO. 18 of 2008 -:2:- for consideration in the final decree proceedings. The Court also held that plaintiffs are granted a decree for realisation of Rs.46,500/- from the first defendant as the amount due to their share in the LIC amount received by the first defendant. The said judgment has become final by virtue of the confirmation of the preliminary decree by the appellate Court. It is also to be held that the Court dealing with the question of mesne profits as issue No.5 and held that it has to be relegated to the final decree proceedings as mentioned above. Thereafter a Commission was appointed to effect division of the property. During the pendency of the work with the Commissioner it was submitted that a settlement has been arrived at between the parties. But what has been accepted by the parties is only with respect to the valuation of the properties for the purpose of effecting partition of the properties. The Commissioner allotted items 4, 5 and 6 with the house therein, the share value in item 9 and calculated the total value of the property allotted to the plaintiffs as Rs.8,83,500/- and after deducting their due share arrived at CRP NO. 18 of 2008 -:3:- a decision that they are liable to pay an amount of Rs.28,405/- towards the equalisation of shares. So far as the defendants are concerned items 1 and 2 were allotted as partible share in item No.3 valued at Rs.31,500/- and item No.8 having a consolidated valuation of Rs.2,56,625/- was allotted to them whereas according to the Commissioner they were entitled to value worth Rs.2,85,030/-. The Commissioner also had mentioned regarding the insurance amount. The Commissioner also reported that he cannot visit the properties to calculate the income from the property because it is in a hilly terrains, clearance is necessary to enter the property. But the Court below on the basis of this report held that a final decree has to be passed and passed a final judgment accordingly. It may appear that the final judgment is on the basis of consensus between the parties. The matter was taken in appeal by the plaintiffs as R.F.A. 389/06 and a Division Bench of this Court did not entertain the appeal for the reason that as it was contended that there was no consensus the said question has to be necessarily CRP NO. 18 of 2008 -:4:- considered by the Court which had passed such an order and therefore with liberty to file a review application, the appeal was disposed of. It is thereafter the present review application is filed. 2. The present review application has been considered by the Court below and it had relied upon so many decisions and held that there is nothing to review the order and therefore dismissed the review application. A reading of the entire facts would reveal that there has been no such consensus between the parties as stated by the Court below. It is seen that even after the filing of the Commissioner's report, the plaintiffs have filed objections to the Commissioner's report and such objections have not been considered by the Court below. 3. Similarly, there is nothing to show that any of the parties had stated that they are not pressing for mesne profits. There is a liability cast upon the final decree Court to determine the question of liability regarding the mesne profits. It is also not done. Or in other words, the objections CRP NO. 18 of 2008 -:5:- filed by the plaintiffs to the Commissioner's report had not been considered at all and the Court has passed a final decree on the basis that everybody has accepted the Commissioner's report. This appears to be incorrect. While passing the final decree the Court below observed that the parties have arrived at a settlement. Actually what was arrived at between the parties was to accept the valuation statement given by the plaintiff so as to effect a partition. Further it is seen that the plaintiffs have filed objections to the Commissioner's report. The defendant have also filed objections to the Commissioner's report. From nowhere it is seen that there has been an agreement between the parties and no endorsement is also seen to that effect. Therefore it has to be held that the matter has to be considered by the Court below taking into consideration the objections raised by the plaintiff as well as by the defendants to the Commissioner's report in the final decree application. I am invoking my jurisdiction for the purpose of allowing this review application, the 3rd clause namely 'sufficient reason'. CRP NO. 18 of 2008 -:6:- 'Sufficient Reason' is that the Court below has not bestowed its attention and applied its judicial mind to the objections filed by the parties and therefore the final judgment passed by the Court is liable to be reviewed. I direct the Court below to review the same and dispose of the matter after considering the objections filed by the plaintiffs and defendants to the Commissioner's report. It is for that Court to take any decision and any observations made in this judgment shall not be binding on the Court for arriving at a decision, after hearing both sides. Needless to say, parties are permitted to adduce evidence as well. Parties are directed to appear before the Court below on 25.2.2008 and the Court below shall dispose of the matter, if possible, before the Court closes for summer holidays. The C.R.P. is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-