IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 WP(C).No. 36134 of 2009(O) -------------------------- OS.191/2007 of SUB COURT, MAVELIKKARA .................... PETITIONER(S): GEORGE THENKACHAN @ MANU,S/O.THANKACHAN GEORGE FROM MALEAKKAL MANU COTTAGE,PULLIKKANAKKU. P.O,KOPRAPPURA,BHARANIKKAVU VILLAGE,258-01-87TH ROAD,FLORAL PARK,NEW YORK 11001,UNITED STATE OF AMERICA,REP;BY HIS P/A,JOSEPH JOY,#7,M.L.ANDREWS VILLA,6TH CROSS,IST MAIN B,GANDHI NAGAR,BANGALORE. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT(S): 1. MINI GEORGE,W/O.GEORGE P.KURIEN,FROM MALEAKKAL MANU COTTAGE,PULLIKKANAKKU.P.O, KOPRAPPURA,BHARANIKKAVU VILLAGE,RESIDING AT PUTHENPURAYIL HOUSE,MEENKULAM,CHANNEPETTA.P.O, ANCHAL,KOLLAM. 2. MONI VARGHESE KURIAN,MALEAKKAL MANU COTTAGE,PULLIKKANAKKU.P.O,KOPRAPPURA,BHARANIKAVU VILLAGE,LOWELL AVENUE,FLORAL PARK,NEW YORK 1100, UNITED STATES OF AMERICA. ADV. SRI.M.V.THAMBAN FOR R1 SRI.R.REJI FOR R1 SRI.B.BIPIN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)NO.36134/2009 APPENDIX PETITIONER'S EXHIBITS EXT.P1, DATED 25.9.2007, TRUE COPY OF THE PLAINT IN O.S.NO.191 OF 2007 SUB COURT, MAVELIKKARA. EXT.P2, DATED 25.7.2007, TRUE COPY OF I.A.NO.1662/2007 IN O.S.NO.191/2007 SUB COURT, MAVELIKKARA EXT.P3,DATED 3.10.2007, TRUE COPY OF THE STATUS QUO ORDER IN I.A.NO.1662/2007 EXT.P4, DATED 10.10.2007, TRUE COPY OF THE COMMISSIONER REPORTing EXT.P5, DATED 30.11.2007, TRUE COPY OF THE WRITTEN STATEMENT OF DEFENDANT NO.1 IN O.S.NO.191/2007. EXT.P6, DATED 29.11.2007, TRUE COPY OF THE COUNTER TO I.A.NO.2622/2007 IN O.S.NO.191/2007, SUB COURT, MAVELIKKARA. EXT.P7, DATED 4.1.2008 TRUE COPY OF I.A.NO.55/2008 IN O.S.NO.191/2007 EXT.P8, DATED 4.1.2008, TRUE COPY OF I.A.NO.56/2008 IN O.S.NO.191/2007 EXT.P9, DATED 4.1.2008 TRUE COPY OF COUNTER TO I.A.57/2008 IN O.S.NO.191/2007, SUB COURT, MAVELIKKARA EXT.P10,DATED NIL, TRUE COPY OF COUNTER TO I.A.NO.55/2008IN O.S.NO.1919/2007 SUB COURT, MAVELIKKARA EXT.P11, TRUE COPY OF COUNTER I.A.56/2008 IN O.S.NO.191/2007 SUB COURT, MAVELIKKARA EXT.P12, TRUE COPY OF COUNTER TO I.A.57/2008 IN O.S.NO,191/2007 SUB COURT, MAVELIKKARA. EXT.P13 DATED 12.6.2009 TRUE COPY OF THE ORDER IN I.A.55/2008 EXT.P14 DATED 15.2.2008 TRUE COPY OF COMMISSION REPORT EXT.P15 DATED 12.10.2009 TRUE COPY OF I.A.NO.1724/2009 EXT.P16 DATED 13.10.2009, TRUE COPY OF ORDER IN I.A.NO.1724/2009 EXT.P17 DATED 26.10.2009 TRUE COPY OF COMMISSION REPORT /TRUE COPY/ P.A.TO JUDGE V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.36134 of 2009 = = = = = = = = = = = = = = Dated this the 28 th day of January, 2010 JUDGMENT The writ petitioner is the contesting 1st defendant in O.S.No.191 of 2007 on the file of the Sub Court, Mavelikkara. The said suit was one for partition and separate possession of the plaintiffs' 1/3rd share over the plaint schedule property after setting aside a registered settlement deed allegedly executed by the deceased mother of the plaintiff and defendants in favour of the 1stdefendant/ petitioner. The writ petitioner/1st defendant is the brother of the plaintiff and 2nd defendant, both of whom are females. The 2nd defendant is sailing along with the plaintiff. 2. Pending suit, on an application filed by the plaintiff seeking injunction against alienation and committing waste, the court below had passed an order for status quo which was being continued from time to time. The suit property contains a building which was initially tenanted and after W.P.(c)No.36134 of 2009 2 the tenant vacated the building it was in the possession of the petitioner/defendant. Since very often the petitioner is abroad, one of the keys was with the plaintiff who is residing some distance away from the suit property. 3. The suit after several adjournments now stands posted peremptorily for trial to 9.2.2010. In the meanwhile, at the instance of the plaintiff, the court below ordered the Commissioner to ascertain certain matters alleged by the plaintiff in I.A.No.55/2008 which was an application filed by the plaintiff seeking a mandatory injunction to break open the lock put on the building by the petitioner herein etc. As per Ext.P16 order, the court below directed the Commissioner only to ascertain the matters alleged by the plaintiff. But what is discernible from Ext.P17 report submitted before the court is that instead of reporting the state of affairs of the plaint schedule property, the Commission removed the lock and put up a new lock and entrusted one key with the plaintiff and submitted the other key to the Court without any orders of the court . Apart W.P.(c)No.36134 of 2009 3 from the fact that the Commissioner was not directed to do any such things, he has virtually dispossessed the defendant who was admittedly in possession of the building. It is under these circumstances that the defendant has approached this Court. 4. The petitioner cannot object to the plaintiff keeping one of the keys as before but subject to the result of the suit. But then he should not have been dispossessed by the Commissioner by removing the lock already put on the house and by putting a new lock and handing over the keys to the plaintiff and the court. It cannot be forgotten that as per the impugned settlement deed the petitioner/ 1st defendant is the absolute owner of the suit property. It is only if the settlement deed is set aside on any of the vitiating circumstances put forward by the plaintiff , will the plaintiff and 2nd defendant get fractional right over the property in dispute. The plaintiff cannot, therefore, have custody of the key of the building to the exclusion of the 1st defendant/ writ petitioner. The plaintiff can keep custody of W.P.(c)No.36134 of 2009 4 the key subject to the final result of the suit. The petitioner herein is also entitled to have a key of the building. Under these circumstances, the court below shall hand over the key submitted to it by the Commissioner to the petitioner/1st defendant which also shall be subject to the result of the suit. 5. I am not going into the merits of the rival contentions of the parties . The court below shall take up the suit for trial on 9.2.2010 itself and shall dispose of the suit preferably in the month of February itself, without resorting to any further adjournment of the trial. Both sides shall co-operate with the trial of the suit so that the dispute between the parties can be settled once and for all. This writ petition is disposed of as above. Dated this the 28th day of January, 2010. V. RAMKUMAR, JUDGE sj