IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 WP(C).No. 12795 of 2008(W) -------------------------------------- OS.3046/2006 of II ADDL.M.C.,THRISSUR .................... PETITIONER: -------------------- USHA.A.MENON D/O. GOPALAMENON, MARATH, ARIMBUR VILLAGE ARIMBUR DESOM,. THRISSUR BY ADV. SRI.M.B.PRAJITH RESPONDENTS: ----------------------- 1. RAJAGOPALA MENON S/O. GOPALA MENON 'KRISHNAPRIYA' THANIKKUDAM DESOM, KURICHIKKARA VILLAGE, THRISSUR. 2. MADHUSUDHANA MENON,S/O GOPALA MENON KANATTUKARA DESOM,. KANATTUKARA VILLAGE THRISSUR 3. ARAVINDAKSHA MENON, S/O,GOPALA MENON KANATTUKARA DESOM,KANATTUKARA VILLAGE,THRISSUR 4. GOPINATHA MENON,S/O.GOPALA MENON KANATTUKARA DESOM,KANATTUKARA VILLAGE,THRISSUR 5. UNNIKRISHNAN,S/O. GOPALAMENON,MARATH ARIMBUR VILLAGE, ARIMBUR DESOM, THRISSUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 12795 OF 2008 = = = = = = = = = = = = = = = Dated this the 11th day of April, 2008. J U D G M E N T This writ petition is preferred against the order of the II Addl. Munsiiff, Thrissur in I.A.1744/08 in O.S.3046/06. The 4th defendant in the suit is the petitioner. She has filed an application for issuance of a Commission contending that the plaint A schedule item No.1 is the property allotted to her as per partition deed No.1489/68 and she has been in enjoyment of the property and further it is amplified by the Will deed No.47/69. 2. The question that arise for consideration is whether item No.1 of the plaint A schedule property is a partible property or not. If the 4th defendant is able to establish that it is covered by 1968 partition deed then most probably it may become not partible. For the said purpose a Commissioner need not be appointed. The Court below has held that possession is not a fact which has to be proved by W.P.C 12795 OF 2008 -:2:- taking out a Commission. I totally concur with that finding and it is for the party who alleges that she or he is in possession to prove the same with other material evidences and therefore I decline to interfere with that order by invoking the extra ordinary jurisdiction under Article 227 of the Constitution of India. Hence this writ petition is dismissed. M.N. KRISHNAN, JUDGE. ul/-