IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 WP(C).No. 7337 of 2009(O) --------------------------------- OS.125/1972 of PRL.S.C.,THALASSERY .................... PETITIONERS/RESPONDENTS NO.5 TO 12 IN FDIA : --------------------------------------------------------------- 1. MANHAKKUNNU KAMALAKSHI, W/O.LATE BHASKARAN, AGED 79 YEARS, RESIDING AT KUNNATHUR HOUSE, P.O.KADACHIRA, KANNUR DISTRICT. 2. M.CHITHRALEKHA, D/O.LATE BHASKARAN, AGED 50 YEARS, RESIDING AT KUNNATHUR HOUSE, P.O.KADACHIRA, KANNUR DISTRICT. 3. M.CHANDRI, D/O.LATE BHASKARAN, AGED 48 YEARS, RESIDING AT KUNNATHUR HOUSE, P.O.KADACHIRA, KANNUR DISTRICT. 4. M.SUKANYA, D/O.LATE BHASKARAN, AGED 43 YEARS, RESIDING AT KUNNATHUR HOUSE, P.O.KADACHIRA, KANNUR DISTRICT. 5. M.SULEKHA, D/O.LATE BHASKARAN, AGED 38 YEARS, RESIDING AT KUNNATHUR HOUSE, P.O.KADACHIRA, KANNUR DISTRICT. 6. M.JAGAJEEVAN, S/O.LATE BHASKARAN, AGED 46 YEARS, RESIDING AT KUNNATHUR HOUSE, P.O.KADACHIRA, KANNUR DISTRICT. 7. M.SUJANA, D/O.LATE BHASKARAN, AGED 40 YEARS, RESIDING AT KUNNATHUR HOUSE, P.O.KADACHIRA, KANNUR DISTRICT. 8. M.JAGADEESH, S/O.LATE BHASKARAN, AGED 36 YEARS, RESIDING AT KUNNATHUR HOUSE, P.O.KADACHIRA, KANNUR DISTRICT. BY ADV. MR.R.SURENDRAN WP(C).No. 7337 of 2009(O) RESPONDENTS/PETITIONER & RESPONDENTS NO.1 & 4 IN FDIA : -------------------------------------------------------------------------------- 1. MOOLIYIL LEELA, W/O.MUKUNDAN, AGED 76 YEARS, RESIDING AT PANNIAN HOUSE, P.O.PALLIKKUNNU, KANNUR DISTRICT. 2. MOOLIYIL BHARGAVI, D/O.LATE CHANDU, AGED 79 YEARS, RESIDING AT PRASANTHI, TALAP, KANNUR, KANNUR DISTRICT. 3. MOOLIYIL KANAKAMMA, D/O.LATE CHANDU, AGED 70 YEARS, RESIDING AT MOOLIYIL HOUSE, THAVAKKARA, KANNUR-2, KANNUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------- W.P.(C) No.7337 OF 2009 --------------------------------------- Dated this the 6th day of March, 2009 JUDGMENT The Writ Petition is filed by the respondents 5 to 12 in the final decree proceedings in O.S.No.125/1972 on the file of the court of the Sub-ordinate Judge of Thalassery. The preliminary decree was passed in 1975. Final decree application was filed in 2004. It is stated that the matter has not become final. 2. The Writ Petitioners raised objections to the commissioner's report and requested to remit commissioner's report as per I.A.No.1445/07. That application was dismissed as per Ext.P4 order dated 29.11.2007. The court below took the view that remittal of the commissioner's report, plan and account was not necessary and the objections could be recorded with liberty to the petitioners to adduce evidence during the trial of the final decree proceedings. That order was challenged by the petitioners in Writ Petition No.697/08, which was disposed of as per Ext.P5 judgment dated 07.01.2008. No interference was made by this court in the W.P.(C) No.7337 of 2009 2 order passed by the court below except observing that the petitioners are entitled to raise their objections regarding the allotment of items in the evidence to be adduced by them. It is submitted that the commissioner's report was thereafter remitted. Commissioner filed another report. The petitioners filed Ext.P6 application to remit the commissioner's report with a direction to file a fresh report minimising the owelty amount. That application was opposed. The court below passed Ext.P8 order dated 13.02.2009 holding that it is not proper to remit the commissioner's report at this stage. The objections raised by the petitioners were recorded. Liberty was also granted to the petitioners to adduce evidence during the trial of the final decree proceedings. Both parties were directed to take necessary steps for adducing evidence relating to the allotment of residence and equitable division of the landed property in the final decree. The petitioners would get an opportunity to substantiate their objections to the report, account and plan submitted by the commissioner during the trial of final decree proceedings. Their rights are not affected by the order impugned. The court below was right in holding W.P.(C) No.7337 of 2009 3 that the parties could establish their objections regarding the allotment of the residence and also regarding the division of properties at the final stage. The order passed by the court below does not call for any interference under Article 227 of the Constitution of India. It is submitted by the learned counsel for the petitioners that in the present application to remit the commissioner's report, evidence was adduced and a direction may be issued to the court below to consider that evidence as well, at the time of disposal of the final decree application. The submission is just and reasonable. The evidence already adduced in the final decree proceedings could be considered at final stage as well. The Writ Petition is accordingly dismissed, however, with the above observations. K.T.SANKARAN JUDGE pac