IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).NO. 2937 OF 2010(O) --------------------------------------- AGAINST THE ORDER IN IA.1672/2007 IN OS.97/2002 OF SUB COURT, OTTAPPALAM PETITIONER(S): ----------------------- PARVATHY, AGED 46 YEARS, D/O.LAKSHMIKUTTY, PADINJARETHIL HOUSE, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT(S): ---------------------- 1. LAKSHMIKUTTY AMMA, 70 YEARS, W/O.LATE RAJAN NAIR, PADINJARETHIL HOUSE, ARIYOOR THEKKUMMURI DESOM, OTTAPALAM AMSOM, OTTAPALAM TALUK, PALAKKAD DIST. 2. VASANTHA KUMARI, AGED 49 YEARS, D/O.LAKSHMIKUTTY, PADINJARETHIL HOUSE, ARIYOOR THEKKUMMURI DESOM, OTTAPALAM AMSOM, OTTAPALAM TALUK, PALAKKAD DIST. 3. SUNANDA, AGED 48 YEARS, D/O.LAKSHMIKUTTY, PADINJARETHIL HOUSE, ARIYOOR THEKKUMMURI DESOM, OTTAPALAM AMSOM, OTTAPALAM TALUK, PALAKKAD DIST. 4. SASIKUMAR, AGED 44 YEARS, S/O.LAKSHMIKUTTY, PADINJARETHIL HOUSE, ARIYOOR THEKKUMMURI DESOM, OTTAPALAM AMSOM, OTTAPALAM TALUK, PALAKKAD DIST. ADV. SRI.SANTHEEP ANKARATH FOR R1,4 SRI.V.C.MADHAVANKUTTY FOR R1,4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF THE REPORT OF THE COMMISSIONER DATED 28.10.2008. EXHIBIT P2 TRUE COPY OF THE REPORT OF THE COMMISSIONER DATED 16.6.2009. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE SUBORDINATE JUDGE, OTTAPPALAM DATED 26.10.2009 ON I.A. NO.59 OF 2009. EXHIBIT P4 TRUE COPY OF THE PLAN FORMING PART OF EXT.P3, ORDER. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.2937 of 2010 ==================================== Dated this the 12th day of October, 2010 J U D G M E N T Exhibit P3, order dated 26.10.2009 on I.A. No.59 of 2009 in I.A. No.1672 of 2009 in O.S. No.97 of 2007 of the court of learned Sub Judge, Ottappalam is under challenge in this petition. Pursuant to the preliminary decree for partition, towards passing of the final decree Advocate Commissioner was deputed to effect division of the property by metes and bounds. He by Ext.P1, report opined that considering lie and nature of the property a division by metes and bounds is not possible as it will be inconvenient to all parties and hence suggested sale of the property and division of the sale proceedings. Thereafter defendant Nos.1 and 2 obtained the assistance of a private civil draftsman and obtained a plan which was produced in the court below. As per that plan, it would appear a division of the property into five shares by metes and bounds was possible. Learned Sub Judge again deputed the Advocate Commissioner to ascertain whether it is possible to partition the property in the light of the plan prepared by the W.P(C) No.2937 of 2010 -: 2 :- draftsman. Commissioner submitted Ext.P2, report sticking on to his earlier view. In the meantime petitioner had filed I.A. No. 59 of 2009 under Section 3 of the Partition Act to permit him purchase share of other sharers. By the impugned order that application was dismissed and the Advocate Commissioner was directed to make allotment in accordance with the plan prepared by the private draftsman. That order is under challenge. Learned counsel for petitioner contends that Ext.P3 is only a division made on paper and that no such division is possible at spot considering the irregular lie and shape of the property. It is also contended by learned counsel that if the plan prepared by the draftsman is accepted plots D and E will not have any vehicular access and even an autorikshaw reach those plots. Learned counsel for respondent supported the impugned order. 2. It is seen from the sketch prepared by the draftsman though provision is made for a pathway to certain plots it does not mention width of that pathway. Nor was the private draftsman examined as witness in the case, not to say about the Advocate Commissioner. It is purely based on the plan prepared by the draftsman that learned Sub Judge passed the impugned order. Having regard to the facts and circumstances of the case it appears to me that the proper course is to depute the Advocate W.P(C) No.2937 of 2010 -: 3 :- Commissioner once again and ascertain feasibility of division of the property by metes and bounds. The Advocate Commissioner can be assisted by the private draftsman who prepared the plan which is now pressed into service by respondent Nos.1 and 2. Resultantly, Ext.P3, order is set aside and I.A. No.59 of 2009 is remitted to the trial court. Learned Sub Judge shall depute the same Advocate Commissioner assisted by the private draftsman who has prepared the plan and produced in the court and ascertain whether in the way suggested by the private draftsman or in any other manner division of the property by metres and bounds is possible and to submit report and plan. Learned Sub Judge shall hear objections if any preferred by the parties to such report and plan and thereon decide the matter on the basis of the report and also dispose of I.A. No.59 of 2009. THOMAS P. JOSEPH, JUDGE. vsv