IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 WP(C).No. 3397 of 2008(D) ------------------------- OS.602/2006 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONERS: ---------------------- 1. SIVANANDA PRABHU,S/O.KALAPURAKAL VASANTHA BAI,LOKAMALLESWARAM VILLAGE, KODUNGALLUR TALUK. 2. SREEKARA PRABHU, S/O.KALAPURAKAL VASANTHA BAI,LOKAMALLESWARAM VILLAGE, KODUNGALLUR TALUK. 3. GOPINADHA PRABU,S/O.KALAPURAKAL VASANTHA BAI,LOKAMALLESWARAM VILLAGE, KODUNGALLUR TALUK. 4. SANDHYA,D/O.KALAPURAKAL VASANTHA BAI,LOKAMALLESWARAM VILLAGE, KODUNGALLUR TALUK. 5. SINDHU,D/O.KALAPURAKAL VASANTHA BAI,LOKAMALLESWARAM VILLAGE, KODUNGALLUR TALUK. 6. RAJALAKSHMY,W/O.KALAPURAKAL HARIDAS SHENOY LOKAMALLESWARAM VILLAGE, KODUNGALLUR TALUK. 7. DEPPA,D/O.KALAPURAKAL HARIDAS SHENOY LOKAMALLESWARAM VILLAGE KODUNGALLUR TALUK. 8. PRADEEP,S/O.KALAPURAKAL HARIDAS SHENOY, LOKAMALLESWARAM VILLAGE KODUNGALLUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) Kss ..2/- ..2.... WPC.NO.3397/2008 D RESPONDENTS: ------------------------- 1. M/S.S.N.GOVINDA PRABHU AND BROTHERS A PARTNERSHIP FIRM REP. BY ITS MANAGING PARTNER, PREMANDA PRABHU @ RAJAGOPALA PRABHU, S/O.GOVINDA PRABHU, SWARGATH MADOM, LOKAMALLESWARAM VILLAGE, SRINAGAPURAM DESOM,KODUNGALLUR TALUK. 2. NARAYANA PRABHU S G,S/O.GOVINDA PRABHU, SWARGATH MADOM, LOKAMALLESWARAM VILLAGE, KODUNGALLUR TALUK. 3. PADMANABHA PRABHU S G,S/O.GOVINDA PRABHU SWARGATH MADOM, LOKAMALLESWARAM VILLAGE KODUNGALLUR TALUK. 4. PRAKASH PRABHU, S/O.RAJENDRA PRABHU, 8/1204, T D ROAD KOCHI. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 3397 OF 2008 = = = = = = = = = = = = = = = Dated this the 29th day of January, 2008. J U D G M E N T This writ petition is filed against the order of the Subordinate Judge, Irinjalakuda in I.A.3357/07 in O.S.602/06 whereby the plaintiff in the suit prayed for appointment of a Commissioner which has been dismissed by the Court on the ground that it is not necessary at that stage. The whole challenge revolves upon the validity of a document of the year 1965. If strangers are in possession it is a settled position of law in a suit for partition that there cannot be a partition of the property unless the properties are brought into the common hotch pot of the co-owners as laid down in the decision of the Apex Court reported in Sarojini Amma v. Pappi Amma (1973 KLT 148). So the persons in possession are necessary parties before the Court. The plaintiff himself has averred in the application that the properties are outstanding in possession of some strangers. W.P.C 3397 OF 2008 -:2:- Whether they had stepped into the shoes of co-owners or assignees require a detailed consideration at a later stage. Therefore I dispose of the writ petition permitting the writ petitioner herein to implead the persons and thereafter filing of their written statement if necessary move an application for issuance of a Commission for properly locating the property and measure the property. Or in other words after impleadment is made and later when an application is filed for issuance of a Commission it shall not be rejected on the ground that a previous Commission application has been dismissed by the Court. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-