IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 WP(C).No. 5655 of 2006(W) ------------------------- OS.5/2000 of II ADDL.SUB COURT,KOZHIKODE .................... PETITIONER: -------------------- A.V. VASANTH VISWANATHAN, S/O. LATE VISWANATHAN, ARAYAN VEETTIL, NAGARAM AMSOM DESOM, KOZHIKODE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT: ------------------------ C.K. KHALID, REP. BY POWER OF ATTORNEY HOLDER HASHIM, S/O. AHAMMED KUNHI, CHEVAYUR AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.5655/2006 W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN O.S.5/2000 OF SUB COURT, KOZHIKODE. EXT.P2: COPY OF THE COMMISSION REPORT DTD. 23/07/05. EXT.P3: COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE COMMISSIONERS REPORT. EXT.P4: COPY OF THE I.A.5119/05 IN I.A.2590/92 IN OS.5/2000 OF SUB COURT II (A), KOZHIKODE. EXT.P5: COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT IN I.A.5119/05. EXT.P6: COPY OF THE ORDER IN I.A.5119/05 IN O.S.5/2000 DTD. 13/01/2006. /TRUE COPY/ P.A.TO JUDGE Kss PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NO. 5655 of 2006 ---------------------------------- Dated this the 11th day of July , 2007 JUDGMENT Though it is noted that on 4.7.2007 it was the petitioner who sought for an adjournment, actually the petitioner was absent and it was the respondent who was present. Today also respondent alone is present. The writ petition will stand dismissed for default. PIUS C. KURIAKOSE, JUDGE. PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NO. 5655 of 2006 ---------------------------------- Dated this the 12th day of February , 2008 JUDGMENT I have heard the submissions of Sri.R.Bindu Sasthamangalam, the learned counsel for the petitioner and Sri.C.P.Mohammed Nias, the learned counsel for the contesting respondent. Drawing my attention to Section 4 of the Partition Act and a number of judicial precedents including the judgment of the Supreme Court in Ghantesher Ghosh v. Madan Mohan Ghosh and Others ( 1996 11 Supreme Court Cases 446) , the learned counsel for the petitioner submitted that the respondent/plaintiff is a stranger to the family and the learned Subordinate judge should have entertained the request for allotment of at least house bearing No.8/152 which is presently under the occupation of the petitioner to the petitioner's share on a equitable considerations. 2. The learned counsel for the respondent submits that Section 4 of the Partition Act cannot have any application in this case where till this moment the petitioner has not made request for purchasing the share of the plaintiff. 3. Having considered the rival submissions addressed at the bar, I am of the view that the issue should receive the reconsideration in the hands of the learned subordinate Judge. It is open to both the parties to cite all relevant judicial precedents before the Learned subordinate Judge. The learned subordinate Judge will hear the parties again and pass fresh orders. I also record in this context the submission of the learned counsel for the respondent that if it is possible to allot building having door No. 8/152,towards the share of the petitioner the plaintiff/respondent should have no objection to that. Fresh order as directed above shall be passed at the earliest and at any rate within six weeks of receiving a copy of this judgment. The Writ Petition is disposed of as above. PIUS C. KURIAKOSE, JUDGE. dpk