IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 5285 of 2010(O) ------------------------- AGAINST THE ORDER IN IA 775/2009 IN IA 58 /2008 IN OS.265/1997 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER(S): --------------- GANGADHRAN, S/O.KITTU, AGED 62 YEARS, PARAYANKODU KALAM, CHITTUR VILLAGE, CHITTUR TALUK. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------- 1. KALYANIKUTTY AMMA, W/O.LATE VENUGOPALAN, POONA, MAHARASHTRA. 2. RAJAGOPALA MENON, S/O.LATE VENUGOPALAN, POONA, MAHARASHTRA. 3. V.K.BALAGOPALAN, S/O.LATE VENUGOPALAN POONA,MAHARASHTRA BY MUKTHYAR AGENT A.RAJAGOPALAN,S/O.AMBATTU SARADA AMMA, 15/82 COURT ROAD, KOPPAM AMSOM, PALAKKAD TALUK. 4. A.CHANDRAKUMAR, S/O.LATE KOCHUKUTTY AMMA JAYALAKSHMY VILASAM, KOPPAM AMSOM, COURT ROAD, SULTANPET, PALAKKAD TALUK. 5. VIKRAM KUMAR, S/O.GEETHA PREMKUMAR, 8/105, SPARTIN ENCLAIV ERVAD SAKKAN, COLLEGE ROAD, POONA, MATHARASHTRA. 6. VIVEK KUMAR, S/O.GEETHA PREMKUMAR, JEMINI GAS APPLIANCE BLESS BUILDING, NAGARAPURAM, THALASSERY. ADV. SRI.P.R.VENKETESH FOR R2 SRI.P.R.RAJA FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.5285/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PRELIMINARY DECREE IN OS.265/1997 OF THE COURT OF SUBORDINATE JUDGE PALAKKAD EXT.P2 TRUE COPY OF THE FINAL REPORT BY ADVOCATE COMMISSIONER SUBMITTED ON 30.1.2009 EXT.P3 TRUE COPY OF REPORT FROM THE AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, THATHAMANGALAM EXT.P4 TRUE COPY OF IA NO.775/2009 IN IA NO.58/2008 IN OS 265/1997 OF THE COURT OF SUBORDINATE JUDGE, PALAKKAD EXT.P5 TRUE COPY OF ORDER DATED 5.6.2009 IN IA NO.775/2009 IN IA NO.58/2008 IN OS 265/1997 OF THE COURT OF SUBORDINATE JUDGE, PALAKKAD THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.5285 of 2010 -------------------------------------- Dated this the 7th day of October, 2010. JUDGMENT Petitioner has served notice on counsel for respondents in the trial court which is sufficient compliance in view of Rule 59 of the Kerala High Court Rules, 1971. Hence service on counsel is declared as sufficient service on respondents. 2. What is under challenge in this petition is the order passed by learned Principal Sub Judge, Palakkad on I.A.No.775 of 2009 in O.S.No.265 of 1997 of that court. That application to remit report of Advocate Commissioner was preferred by petitioner challenging assessment of mesne profit and its equalisation. Learned Sub Judge has rejected the contention and accepted the report submitted by the Advocate Commissioner. 3. So far as the division of property and allotment of shares is concerned there is no dispute raised before me. The challenge is to the assessment of mesne profit, the relevant date from which it is to be assessed and equalisation of the mesne profits. Learned counsel contends that the property involved is paddy land and that during the relevant time the area was declared as drought affected area as stated in Ext.P3 and petitioner had received compensation for the said purpose from the Agricultural Department. It is stated that though the suit is filed in the year 1997, Advocate Commissioner WP(C) No.5285/2010 2 has assessed mesne profit from 1992 onwards which the learned Sub Judge ignored as merely clerical but no corresponding reduction was made in the matter of mesne profit. 4. Ext.P2 is the report submitted by Advocate Commissioner where he has stated about assessment of mesne profit. Advocate Commissioner has estimated the yield from the property as 700 paras of paddy per year. It is seen that assessment was taken from 1992 onwards while the suit was filed only in the year 1997. That cannot be said to be a clerical error. Atleast corresponding reduction had to be made by the learned Sub Judge which was not done. Petitioner has a case that the area where decree schedule property is situate was declared as drought affected area and petitioner was awarded compensation under the scheme for drought affected areas. He had produced a photocopy of the relevant document but that was not accepted. Petitioner is prepared to adduce proper evidence. 5. In the circumstances stated above I am inclined to give an opportunity to both sides to adduce evidence in support of their contention regarding mesne profits as assessed by the Advocate Commissioner. WP(C) No.5285/2010 3 Resultantly this petition is allowed. Ext.P5, order on I.A.No.775 of 2009 in O.S.No.265 of 1997 is set aside to the extent it concerned mesne profit and its equalisation. That part of the matter is remitted to the court below for fresh decision. Parties will get opportunity to adduce evidence regarding their contention as to the mesne profit. Learned Principal Sub Judge, Palakkad shall expedite decision in the matter. THOMAS P.JOSEPH, Judge. cks