IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 WP(C).No. 15440 of 2010(O) -------------------------- OS.289/2007 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONER(S): --------------- MINITHA ASHRAF,AJMAL MANZIL, THAMARAKKULAM WEST MURI, THAMARAKKULAM VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP RESPONDENT(S): --------------- 1. KUNJUPENNU, ATTASSERIL VEEDU KOTTACKATTUSSERI MURI, THAMARAKULAM VILLAGE. 2. KARUMPI, PUTHENPURACKAL LAKSHAM VEEDU MEKKUM MURI, THAMARAKULAM VILLAGE. 3. THEVI, PUTHENPURACKAL COLONI, MEKKUM MURI, THAMARAKULAM VILLAGE. 4. VELUTHAKUNJU, CHANKOORETHU PUTHEN VEEDU MEKKUM MURI, THAMARAKULAM VILLAGE. 5. THANKAMMA, CHANKOORETHU VEEDU (AMBILI BHAVANAM) MEKKUM MURI,THAMARAKULAM VILLAGE 6. JAGADAN, CHANKOORETHU VEEDU (AMBILI BHAVANAM) MEKKUM MURI,THAMARAKULAM VILLAGE 7. SURESH, CHANKOORETHU VEEDU (AMBILI BHAVANAM) MEKKUM MURI,THAMARAKULAM VILLAGE 8. AMBILI, CHANKOORETHU VEEDU (AMBILI BHAVANAM) MEKKUM MURI,THAMARAKULAM VILLAGE 9. SATHEESH, CHANKOORETHU VEEDU (AMBILI BHAVANAM) MEKKUM MURI,THAMARAKULAM VILLAGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Thomas P.Joseph, J. ----------------------------------- W.P.(C) No.15440 OF 2010 ----------------------------------- Dated this the 3rd day of June, 2010 JUDGMENT Writ petitioner challenges Ext.P9 order in O.S.No.289 of 2007 whereby he requested to re-open the preliminary decree for partition passed on 28.8.2008 and to pass a supplementary preliminary decree allotting 1/3rd share to him and which has been disallowed by the learned Munsiff, Mavelikara. O.S.No.289 of 2007 is a suit to set aside Ext.P4, settlement deed No.363 of 2000 and for partition filed by respondents 1 to 3 against respondents 4 to 9. Learned Munsiff after consideration of the evidence set aside Ext.P4 and directed partition of the property. Share was allotted only to respondents 1 to 3. Petitioner, claiming to be an assignee from the transferees who got property from the donee under Ext.P4 requested learned Munsiff to pass a supplementary preliminary decree. That application was disallowed by the learned Munsiff. Learned counsel placing reliance on the decision of the Supreme Court in Dhanalakshmi & others v. P.Mohan & others [AIR 2007 SC 1062] contends that petitioner being an assignee from a co-sharer is a necessary W.P.(C) No.15440 OF 2010 2 party to the suit and hence, he is entitled to get a supplementary preliminary decree passed. 2. The decision cited by learned counsel was a case where impleadment was sought pending of the suit. Here, respondents 1 to 3 sought partition of the suit property challenging Ext.P4 settlement deed and praying that the said document be cancelled the assignors of petitioner were on the party array. The challenge was upheld by the learned Munsiff. Ext.P4 was set aside and the property has been ordered to be partitioned allotting shares to respondents 1 to 3. Indisputably petitioner is claiming right and title from the transferees of the donee under Ext.P4 which has been cancelled by the learned Munsiff. In such situation the preliminary decree cannot be reopened to give petitioner an opportunity to re-agitate issues which have been settled between the parties to the suit who include the assignors of petitioner. In such situation no supplementary preliminary decree can be passed particularly as no share was alloted to the assignors of petitioner. As such, the court below was correct in disallowing prayer for re-opening preliminary decree and to pass W.P.(C) No.15440 OF 2010 3 a supplementary preliminary decree. Petitioner, if aggrieved has to resort to other remedies available to him under law. This writ petition is dismissed but without prejudice to the right of petitioner if any to seek other appropriate remedies for the redressal of his grievance. Thomas P.Joseph, Judge cms