IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 WP(C).No. 31591 of 2009(O) -------------------------- I.A.No.4123 in O.S.NO.620/2008 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER: --------------- JOJI, AGED 37 YEARS, S/O. KANNATH POULOSE, KURUVILASERY VILLAGE DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. MR.RENJITH THAMPAN MR.P.A.ANITHA RESPONDENTS: --------------- 1. KOCHUTHRESSIA W/O. POULOSE, KANNATH HOUSE, KURUVILASSERY VILLAGE, DESOM, MUKUNDAPURAM TALUK. 2. SIJI, D/O. POULOSE, KANNATH HOUSE KURIVILASSERY VILLAGE, MUKUNDAPURAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.31591 of 2009 - O --------------------------------- Dated this the 6th day of November, 2009 J U D G M E N T Petitioner is the first defendant in O.S.No.620 of 2008 on the file of the Sub Court, Irinjalakkuda. The above suit is one for partition and the first respondent is the plaintiff and the second respondent, the co-defendant, is the sister of the present petitioner. Two items of properties are described as A and B schedule in the suit. In respect of plaint A schedule, first respondent/plaintiff claimed 4/18 shares and in B schedule having an extent of 10 cents she claimed 8/18 shares. Property originally belonged to the mother of the defendants and on her death their father, namely, Poulose, married the plaintiff. Poulose had already passed away. On his death, the second wife, the plaintiff, has filed the suit seeking right over the property by way of inheritance. Out of the total property having an extent of 61 cents, the defendants in the suit, the petitioner and also the second respondent, are stated to have executed a sale deed in respect of 10 cents, described as B schedule, in favour of their W.P.(C).No.31591 of 2009 - O 2 father. So much so, in respect of that B schedule, plaintiff had claimed a larger share as indicated above. In their written statement the defendants/petitioner and second respondent impeached the validity of the sale deed which had been executed in favour of their father contending that it was created by fraud and undue influence. The defendants applied for an appointment of a commission to identify the B schedule property with the help of a Taluk surveyor and also to ascertain such other matters stated in their petition, which according to them, were essential for a proper and fair disposal of the suit on merits. The learned Sub Judge, after hearing both sides, dismissed that application vide Ext.P4 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested wit this Court under Article 227 of the Constitution of India. 2. I heard the counsel for the petitioner. 3. Perusing Ext.P4 order with reference to the submission made by the learned counsel and also other exhibits tendered in the writ petition, I find the learned Sub Judge was perfectly W.P.(C).No.31591 of 2009 - O 3 justified in holding that the appointment of a commission as desired by the defendants, petitioner and second respondent herein, is not necessary. In case the contention of the defendants with respect to B schedule is found sustainable, the learned Sub Judge observed that after passing of the preliminary decree in the final decree proceedings, identification of the property can be proceeded with to effect division by metes and bounds in tune with the shares allotted to the respective parties. I do not find any impropriety or illegality in Ext.P4 order passed by the court below. It is open to the petitioner to seek for identification of B schedule property at the appropriate stage, at any rate, not before passing of the preliminary decree in the suit. Writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-