IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 OP(C).No. 3024 of 2011(O) -------------------------------- (O.S. NO.183/2010 OF SUB COURT, PALA) ---- PETITIONER: --------------- PRINCE SEBASTAIN, AGED 41 YEARS, S/O.LATE SRI.SEBASTIAN, PAIKADA HOUSE, KONIPPADU POST, EDAMARUKU, KOTTAYAM DISTRICT - 686 652. BY ADV. SRI.JOSE THOMAS (PALA) RESPONDENT(S): -------------------- 1. THOMAS PAIKADA, AGED 69 YEARS, S/O. LATE THOMMAN, PAIKADA (H), MEENACHIL VILLAGE, MEENACHIL TALUK, PALA P.O., PIN - 686 575. 2. JOSE PAIKADA, AGED 66 YEARS, S/O. LATE THOMMAN, PAIKADA HOUSE, KONIPPADU POST, EDAMARUKU, KOTTAYAM DISTRICT - 686 652. 3. SR.VINCENT, AGED 73 YEARS, D/O. LATE THOMMAN PAIKADA, D.M.CONVENT, KARAKKAD P/O., PANDALAM - 689 504. 4. JOVAMMA JOY, AGED 61 YEARS, D/O. LATE THOMMAN PAIKADA VATTAKUZHY HOUSE, KALOORKADU P.O., PIN - 686 668. 5. PENNAMMA SEBASTIAN, AGED 64 YEARS, W.O.LATE SEBASTIAN, PAIKADA, KONIPPADU P.O., EDAMARUKU, KOTTAYAM DISTRICT - 686 652. 6. RONY SEBASTIAN, AGED 39 YEARS, S/O.LATE SEBASTIAN, PAIKADA, KONIPPADU POST, EDAMARAKU, KOTTAYAM-686652. 7. ANIL SEBASTIAN,AGED 36 YEARS,S/O.LATE SEBASTIAN PAIKADA PAPAIKADA H, KONIPPADU P.O.,EDAMARUKU,KOTTAYAM, PIN - 686 652. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 3024/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PLAINT IN O.S. 183/2010 ON THE FILES OF THE HONOURABLE COURT PALA. P2: COPY OF WRITTEN STATEMENT FILED BY THE 5TH DEFENDANT IN O.S.183/2010 ON THE FILES OF THE HONOURABLE SUB COURT, PALA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3024 of 2011 --------------------------------------- Dated this 22nd day of September, 2011 JUDGMENT Petitioner is the fifth defendant in O.S.No.183 of 2010 of the Court of learned Sub Judge, Pala. That is a suit filed by the first respondent for partition of three items of properties belonging to his parents and (alleged) deceased brother, Gilbert. According to the first respondent, Gilbert was employed as an Engineer in KAIRALI Ship which is missing from 1979 onwards and Gilbert is not heard of since 1979 by those who would naturally have heard of him if he is alive. On that premise respondent filed the suit for partition of item No.2 belonging to Gilbert as well. Petitioner contended that Gilbert is still alive being in the custody of hijackers of the ship and the enquiry being conducted by the Central Government is not over. The further contention is that since Gilbert is not impleaded in the suit partition of item No.1 and 3 is also not allowable. Yet another contention is that since the enquiry being conducted by the Central Government is not over, the suit to the extent it concerned partition of item No.2 property belonging to Gilbert is pre-mature. Learned Sub Judge had to frame an issue whether O.P(C).No.3024 of 2011 -: 2 :- Gilbert is alive. Petitioner is aggrieved since according to him there is also no proper framing of issues. 2. Learned counsel has contended that every material proposition of law and/or fact asserted by the first respondent and disputed by the petitioner and other defendants should give rise to an issue and placed reliance on the decision in Makhan Lal Bangal Vs. Manas Bhunia and Ors. (2001(2) SCC 652). It is contended that the question whether Gilbert is alive is very much a fact which is denied by the first respondent and asserted by petitioner and hence learned Sub Judge was bound to frame an issue regarding that. According to the learned counsel, suit itself is pre-mature so far as item No.2 property is concerned since the enquiry being conducted by the Central government regarding missing of KAIRALI ship in the year 1979 is not complete and at any rate so far as item Nos.1 and 3 are concerned since Gilbert is alive he is a necessary party to the suit. 3. It is not disputed that in the year 1979, when the ship was allegedly found missing, Gilbert was a bachelor. Learned Sub Judge has framed an issue whether item Nos.1 to 3 are partible among the parties to the suit. In deciding that issue, O.P(C).No.3024 of 2011 -: 3 :- necessarily the question whether death of Gilbert could be presumed under Sec.108 of the Evidence Act would also come into consideration. In other words, when an issue regarding partibility of item No.2 is framed it involves the question whether Gilbert is alive or not. As such, merely because an issue whether Gilbert is alive or not is not framed, I am unable to say that with the issue already framed the parties cannot go to trial. 4. So far as other contentions are concerned, it depends on the question whether Gilbert could be proved/presumed to be to be dead or not. The suit cannot be said to be pre-mature at this stage on the averments first respondent has made in the plaint. Whether the first respondent is entitled to succeed on the averments made in the plaint is an entirely different matter. I do not find reason to interfere. 5. Learned counsel requested that since the case is posted for trial in the list on 23.09.2011 and petitioner has to collect records from the Central Government as to the enquiry being conducted to convince the Court that death of Gilbert cannot be presumed, there may be a direction to postpone the trial of the case. It is pointed out that the suit is of the year, 2010. O.P(C).No.3024 of 2011 -: 4 :- 6. That is a request which petitioner can make before the learned Sub Judge. I make it clear that if any request as aforesaid is made learned Sub Judge shall consider the request and pass appropriate orders in that regard. With the above observation this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-