IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No.3560 of 2009 (W) --------------------------------- OS.101/1980 of MUNI-MAGI.COURT,PATTAMBI .................... PETITIONER: --------------- KUNHAMINA, W/O.ALI HAJI, KANDANGATTIL HOUSE,VALLAPPUZHA AMSOM DESOM, OTTAPALAM TALUK BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENTS: ------------------ 1. AYIDRISS, S/O.KUNJU HAJI, VALLIYIL HOUSE, VALLAPPUZHA AMSOM DESOM, OTTAPALAM TALUK. 2. MARIYA,D/O.OKUNHU HAJI, -DO- -DO- 3. KUNHAYISHA, W/O.LATE ALIYAMU @ KUNHUMANI VALLAYIL HOUSE, -DO- -DO- 4. VEERAN, S/O.LATE ALIYAMU @ KUNHUMANI, VALLAYIL HOUSE, -DO- -DO- 5. FASALU, S/O.LATE ALIYAMU @ KUNHUMANI, VALLAYIL HOUSE -DO- -DO- 6. MISRIA,D/O.LATE ALIYAMU @ KUNHUMANI, VALLAYIL HOUSE, -DO- -DO- THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.3560 of 2009 ------------------------------------------------ Dated this the 3rd day of February, 2009 JUDGMENT Petitioner is the 13th defendant in O.S.101/1980 on the file of the Munsiff's Court, Pattambi. Counsel for the petitioner submits that the suit is one for partition and that a preliminary decree for partition has been passed in the suit and the decree though was reversed in first appeal, was restored in second appeal and that as per the preliminary decree passed in the suit the plaintiff is allowed partition and separate possession of 2/8th share in the scheduled properties. Counsel also submits that the 13th defendant who is the petitioner herein though was impleaded in the suit is one in possession of certain items of properties sought to be partitioned, she was not a sharer and that repelling her contentions, was the preliminary W. P. C. No.3560 of 2009 -2- decree passed in the suit. 2. The present contention that is advanced before me by the petitioner through her counsel is that in the final decree proceedings the Commissioner submitted a report and plan effecting division of the property and allotting 2/8th shares to the plaintiff, but that the said allotment made by the Commissioner has to be set aside as the allotment is inequitable. However, the application so filed was dismissed by the final decree court as per Ext.P5 order and hence, this Writ Petition. 3. Though the petitioner has not produced a copy of the preliminary decree passed in the suit, counsel for the petitioner submits that the petitioner/13th defendant is not a sharer and is not entitled to any share as per the preliminary decree which has now become final. In a partition suit when preliminary decree W. P. C. No.3560 of 2009 -3- has become final none other than the sharers shall be entitled to assail the inequities in allotment of the shares. The petitioner not being a sharer has no locus standi to assail the division made by the Commissioner deputed by the final decree court to effect partition as provided in the preliminary decree. 4. This writ Petition is devoid of merit and is hence dismissed. K.P.BALACHANDRAN, JUDGE kns/-