IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 WP(C).No. 23757 of 2008(C) -------------------------- AGAINST THE ORDER IN IA 73 of 1994 IN OS.73/1994 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER: ------------ CHELLAPPAN, KALAYAMPADY HOUSE, CHARAMANGALAM, CHERTHALA. BY ADV. SRI.J.OM PRAKASH RESPONDENTS: ------------- 1. THANKAMMA, KANNATH, CHARAMANGALAM, MUHAMMA P.O., CHERTHALA. 2. SOBHANA, THAPALUCHIRA, -DO- -DO- 3. KANAKAMMA, SARANYA BHAVAN, NETHAJI P.O., ARYAD, ALAPPUZHA. 4. PRASANNA, THAPALUCHIRA, CHARAMANGALAM, MUHAMMA P.O., CHERTHALA. 5. NATESA BABU, -DO- -DO- BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.23757 of 2008 ------------------------------- Dated this the 7th August, 2008. J U D G M E N T Petitioner is fifth defendant in O.S.No.73 of 1994, on the file of Munsiff Court, Cherthala. Ext.P4 preliminary decree was passed. It was challenged before Sub Court, Cherthala, in A.S.No. 52 of 1998. Learned Sub Judge modified the preliminary decree holding that extent of the property available for partition shall be determined in the final decree stage on measurement and Item No.1 of the plaint schedule property is available for partition. An application was filed for passing a final decree. In that application, I.A.No.955 of 2007, was filed for appointment of a commissioner. As per Ext.P9 order, learned Munsiff appointed a Commissioner and also directed assistance of Taluk surveyor to divide the property, in accordance with the modified preliminary decree. This petition is filed under Article 227 of Constitution of India challenging Ext.P9 order. 2. The learned counsel appearing for the petitioner was heard. W.P.(C) No.23757 of 2008 2 3. The argument of the learned counsel is that learned Munsiff should have specifically directed the Commissioner to find out the actual extent of the property based on Ext.A1 partition deed and Ext.A2 Will and only thereafter should have directed division of the property. 4. On hearing the learned counsel, I do not find any illegality or irregularity warranting interference in Ext.P9 order. Commissioner can only divide the property found available under the subsisting preliminary decree. When the first Appellate Court in the modified preliminary decree specifically directed to measure and determine the extent of the property available for partition, Commissioner has to measure the property as directed in Ext.P5 judgment. If petitioner has any objection on such identification of the property, he is at liberty to file objections to the report before the court. The writ petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.