IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 WP(C).No. 36512 of 2008(V) -------------------------------------------- OS.93/2002 of SUB COURT, MANJERI .................... PETITIONER: PACHERI KADEEJA BY POWER OF ATTORNEY KIZHAKKETHIL HYDRU, S/O.MOIDU, PO PONNIAKURISSI, PERINTALMANNA, MALAPPURAM DISTRICT. BY ADV. SRI.SAJU.S.A RESPONDENTS: 1. DR.HAMSA, PACHERI HOUSE, PO PONNIAKURUSSI, PERINTHALMANNA, MALAPPURAM DISTRICT. 2. NABEESA, W/O. HYDER ALI, KIZHAKKETHIL HOUSE, PO, PONNIAKURUSSI PERINTHALMANNA, MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.36512 of 2008 V -------------------------- JUDGMENT The first defendant in O.S.No.93/02 on the file of the Sub Court, Manjeri is the petitioner. Respondents are the plaintiff and the second defendant in the said suit. The suit was one for partition and preliminary decree was also passed, whereby, the question of equities and reservations was relegated to be considered in the final decree stage. When the Commissioner filed report and plan in the final decree proceedings, petitioner filed I.A.No.1094/08 before the final decree court claiming that Item No.4 of plaint B schedule property has to be allotted to her, as her husband is conducting business in the shed situated in the property and the petitioner and members of her family are solely depending on the income derived from the trade so conducted in the shed in the scheduled property. WPC 36512/08 2 2. The court below, vide Exhibit P7 order, dismissed I.A.No.1094/08 as also another IA filed by another party in the suit. The application filed by the petitioner was resisted by the first respondent/plaintiff, who filed the final decree application, contending that Item No.4 of plaint B schedule property is a shed that is closed down and no business is conducted therein as claimed by the petitioner. The first respondent/plaintiff further contended that the petitioner/first defendant as also the second respondent/second defendant, who advanced similar claim, were already given shop rooms in the heart of Perinthalmanna town as per a partition that has taken place in the tharwad vide Deed No.3266/73 and that if the claim advanced by the petitioner/first defendant is upheld, that would deprive the first respondent/plaintiff of her due share in the property located in an important area. The court below also found that though the first respondent/plaintiff is now in England, his WPC 36512/08 3 intention is to return to his native place and to settle down here and hence, there is no reason to deprive the first respondent/plaintiff of an item of property located in the heart of Perinthalmanna town to have his residence. It was also observed by the court below that the petitioner/first defendant contended that she is exclusively conducting business in the shed situated in the property, whereas, the second respondent/second defendant, who raised a similar contention, contended that her husband is conducting trade in the shed. Therefore, even among defendants 1 and 2, there was dispute as to who was conducting trade in the shed. 3. Counsel for the petitioner submits that the observations made by the court below as afore stated are wrong and that the contention of defendants 1 and 2 was that they were conducting trade together in Item No.4 shed in plaint B schedule property. However, the court below has WPC 36512/08 4 observed that the shed in the scheduled property is in a dilapidated condition and that though the defendants advanced claim contending that they are conducting trade in the said shed, it is not disclosed as to the nature of trade conducted in the shed and therefore, there is no compelling circumstance to allot Item No.4 of plaint B schedule property to the petitioner and that in the event of such allotment, it would be detrimental to the interest of other co-owner. 4. I am of the view that such equities in allotment or reservations should not have been claimed by filing a petition in the nature of the one that was filed in the court below and the final decree court is to work out equities in allotment at the stage of passing of final decree. However, I am not inclined to interfere with the order, but I make it clear that the order passed on I.A.No. 1094/08 shall not stand in the way of equities being worked out in the final decree, if the court WPC 36512/08 5 below finds that in equity the petitioner can be allowed to have special right over Item No.4 of plaint B schedule property. With the above direction, I dispose of this writ petition. 11th December, 2008 (K.P.Balachandran, Judge) tkv