IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 OP(C).No. 4015 of 2011(O) ------------------------- OS.898/2008 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONERS/RESPONDENTS 1 & 2/DEFENDANTS 1 & 2 -------------------------------------------------------------------- 1. JOSE, S/O.THOMMAN, AGED 62 YEARS, MANIYAMKOTTU EDAYATH, EDAKATTUVAYAL VILLAGE, KANAYANNOOR TALUK, ARAKKUNNAM P.O., ERNAKULAM. 2. MARY KUTTY, W/O.JOSE, AGED 61 YEARS, MANIYAMKOTTU EDAYATH, EDAKATTUVAYAL VILLAGE, KANAYANNOOR TALUK, ARAKKUNNAM P.O., ERNAKULAM. BY ADVS. SRI.K.V.JAYACHANDRAN SRI.RAJU V.MATHEW SMT.R.REMA MENON RESPONDENT/PETITIONER & 3RD RESPONENT/PLAINTIFF & 3RD DEFENDNT: --------------- 1. JOSE, S/O.ANTHAPPAN, AGED 61, KALIYAVUMKAL HOUSE, KAKKADU, KATHIKOODAM P.O., KALLOOR VADAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT 680 308. 2. ANNAMMA @ AMMINI JOHN, AGED 62, W/O.JOHN, ANAMTHURUTHIL, PALLURUTHY NADA, PALLURUTHY, KOCHI-682 006. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(C).No. 4015 of 2011(O) ------------------------------- APPENDIX ------------- PETITIONER(S) EXHIBITS ------------------------------- EXT.P1- A TRUE COPY OF THE PLAINT DT.17.10.2008 IN OS 898/2008. EXT.P2- A TRUE COPY OF THE WRITTEN STATEMENT DT.20.2.2009 IN OS 898/2008. EXT.P3- A TRUE COPY OF THE COMMISSION APPLICATION DT.10.12.2009 IA 9034/2009 FILED BY IST RESPONDENT IN OS 898/2008. EXT.P4- TRUE COPY OF THE COMMISSION REPORT DATED 28.3.2011. EXT.P4(A)- TRUE COPY OF THE SURVEYOR REPORT DATED 28.3.2011. EXT.P5- TRUE COPY OF THE PETITION IA 4175/2011 DT.8.7.2011 SEEKING ASSISTANCE OF THALUK SURVEYOR/SUPERINTENDENT. EXT.P6- TRUE COPY OF THE COUNTER AFFIDAVIT FILED TO IA 4175/2011 DT. 22.7.2011. EXT.P7- TRUE COPY OF THE COUNTER AFFIDAVIT FILED TO IA 4176/2011 DT. 22.7.2011. EXT.P8- TRUE COPY OF THE PETITION IA 4176/2011 FOR REMOVING THE CASE FROM THE LIST DT.8.7.2011. EXT.P8(A)- TRUE COPY OF THE ORDER IN IA 4176/2011 DT.28.7.2011. EXT.P9- TRUE COPY OF THE TYPE WRITTEN ORDER OF P8(A) DATED 28.7.2011. EXT.P10- TRUE COPY OF THE ORDER DT.3.8.2011 IN IA 4175/2011. RESPONDENTS' EXHIBITS : NIL ------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.4015 of 2011 --------------------------------------- Dated this 08th day of December, 2011 JUDGMENT Defendants 1 and 2, in O.S.No.898 of 2008 of the Court of learned Second Additional Sub Judge, Ernakulam are aggrieved by Ext.P10, order whereby learned Sub Judge set aside the report and plan and directed the Advocate Commissioner to identify the properties covered by the Will in question with the assistance of a Taluk Surveyor. 2. First respondent/plaintiff claimed right over the property as per Will No.14 of 1973 said to be executed by his late grandfather. Petitioners filed Ext.P2, written statement contending that the testator had disposed of properties referred to in the Will during his life time. Hence nothing remained to be acquired by the first respondent on the strength of the Will on the death of the testator. Advocate Commissioner inspected the properties and reported that properties cannot be identified as per the description in the Will. After several rounds of procedures, parties went into trial and after hearing, the case was taken for judgment. Learned Sub Judge reopened the case suo moto and passed Ext.P10, order on 03.08.2011 setting aside O.P(C).No.4015 of 2011 -: 2 :- the report and plan and directed proper identification with the assistance of Taluk Surveyor. That order is under challenge. 3. It is contended by learned counsel that the question involved is whether property referred to in Will No.14 of 1973 was available to be inherited by the first respondent on the strength of the said Will as those properties had already been disposed of by the testator during his life time. It is also contended by learned counsel that instead of the same Commissioner, learned Sub Judge appointed another Commissioner who is attached to the office of counsel for the first respondent. 4. So far as the last submission is concerned, that is a matter which petitioners can bring to the notice of learned Sub Judge if the said statement is correct, they seek appropriate remedial measures in the matter as may be found necessary and deem fit by the learned Sub Judge. 5. So far as Ext.P10, order is concerned, learned Sub Judge found that since there was no proper identification of the properties it was necessary to set aside the report and plan and depute a Commissioner with the assistance of Taluk Surveyor (instead of private Surveyor who had done the work earlier) for O.P(C).No.4015 of 2011 -: 3 :- identification of properties based on the Will as found necessary by the learned Sub Judge. Ext.P10, order does not call for interference. Without prejudice to the right of petitioner to bring their grievance regarding alleged attachment of the Advocate Commissioner with the office of counsel for first respondent to the notice of learned Sub Judge and seek appropriate remedy, this original petition is closed. (THOMAS P. JOSEPH, JUDGE) Sbna/-