IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 WP(C).No. 12400 of 2010(O) ---------------------------------------- OS.263/1980 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER(S): ----------------------- GOPALAN UNNI, S/O. LATE NAKU, THANNISSERY AMSOM, PALAKKAD DISTRICT. BY ADV. SRI.BECHU KURIAN THOMAS, SRI.ROSHEN.D.ALEXANDER. RESPONDENT(S): -------------------------- 1. PREMA SREENIVASAN, W/O. LATE SREENIVASAN 1/340, MARATHODIKA, THANNISSERY AMSOM, PALAKKAD DISTRICT. 2. RAMADAS, S/O. LATE ANDI, "LAKSHMI", MISSION COMPOUND, ROBINSON ROAD, PALAKKAD. 3. RADHAKRISHNAN @ DIVAKARAN, S/O. LATE ANDI, THOTTINGAL HOUSE, THANNISSERY POST, PALAKKAD. 4. BHAGAVALDAS, S/O.RAMADAS "LAKSHMI", MISSION COMPOUND, ROBINSON ROAD, PALAKKAD. R1 BY ADV. SRI.T.M.SUNIL, SMT.S.CHITHRA. R2 TO R4 BY ADV. SMT.M.A.ZOHRA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12400/2010-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMISSION REPORT DATED 13/02/2008. EXT.P1(a): COPY OF THE A SCHEDULE PROPERTIES PRODUCED ALONG WITH THE COMMISSION REPORT. EXT.P1(b): COPY OF THE VALUATION REPORT. EXT.P2: COPY OF THE APPLICATION NUMBERED AS I.A.365/2010 ON THE FILES OF ADDITIONAL SUB COURT, PALAKKAD. EXT.P3: COPY OF THE PHOTOGRAPHS SHOWING THE PATHETIC SITUATION OF THE HOUSE. EXT.P4: COPY OF THE OBJECTION FILED BY RESPONDENTS 2, 3 AND 4. EXT.P5: COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT. EXT.P6: COPY OF THE ORDER DATED 18/03/2010 IN I.A.365/2010 AS I.A.117/85 IN O.S.263/80 IN THE FILES OF ADDITIONAL SUB COURT, PALAKKAD. EXT.P7: COPY OF THE IMPLEADEDING PETITION FILED BY MR.VENUGOPALAN AND NUMBERED AS I.A.4287/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 12400 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of June, 2010. JUDGMENT In this writ petition, the petitioner assails Ext.P6 order, whereby his request for effecting repairs to the house in which he resides has been declined by the court below. 2. The facts absolutely necessary for the disposal of this writ petition are as follows: The parties before this court are parties in a partition suit, ie. O.S. 263 of 1980, pending before the Sub Court, Palakkad. Preliminary decree has already been passed and final decree proceedings are going on. This court is given to understand that the Commissioner has filed a report, to which objections have been taken by various parties. Final decree proceedings are yet to be finalized. WPC.12400/2010. 2 3. It was then that the petitioner approached the court below with I.A. 365 of 2010 praying for effecting repairs to the house. 4. According to him, in the report filed by the commissioner before the court below the plaint schedule properties are divided into plaint A and B schedules and plaint A schedule has been tentatively set apart by the commissioner to the second and third plaintiffs and B schedule to defendants 1 to 3 and 7 in the suit. It is also claimed that as per the commissioner's allocation, the house situate in item No.5 of plaint A schedule is set apart to him. It is pointed out that the building is very old and is in a dilapidated condition. He says that urgent repairs are necessary, so as to enable him to continue to live in the said house. Details of the damages suffered by the building is averred in the petition. It is also claimed by him that he has no other house to reside. It is undertaken by him that the expenses incurred by him for effecting the absolutely essential repairs will not be claimed from other sharers. He WPC.12400/2010. 3 has also expressed his willingness to carry out the repair works in the presence of a Commissioner to be appointed from court. 5. The petition was opposed by the respondents before the court below. Respondents 2, 3 and 4 would contend that the house has not suffered damages as claimed by the petitioner and that he has exaggerated the real state of affairs. It is also pointed out that final decision has not been taken in the final decree proceedings and the rights are yet to be worked out in the final decree proceedings. It is pointed out that the allocations are not final and that the properties allotted by the Commissioner infact did not belong to the petitioner. It is contended that the petitioner is guilty of cutting and removing valuable trees standing in the property and the respondents apprehend that if the petitioner is allowed to repair the building, he may remove valuable timber with which the house has been constructed. The respondents therefore prays that this writ petition may not be entertained. WPC.12400/2010. 4 6. The first respondent herein also filed a counter to the I.A. filed by the petitioner. In paragraph 2 it is said that the petitioner is residing in the house shown in the petition schedule property and that as per the commission report the building is allocated to the first respondent also. It is alleged that she was compelled to shift her residence due to various reasons and that she is at present residing in a rented house. She asserts that the building has not suffered much damages and it is only an attempt on the part of the petitioner to create rights over the property. The story of repairs and maintenance is cooked up and it is made only for the purpose of this petition. She too would aver that the petitioner is guilty of committing waste in the petition schedule property by cutting and removing valuable trees standing in the petition schedule property. The first respondent apprehends that under the guise of repairs, the petitioner would remove the wooden rafters made of teak and other valuable trees and misappropriate them. Ultimately it is said that if in any case the court finds that WPC.12400/2010. 5 repairs are to be undertaken in the petition schedule property, the same may be directed to be done under the supervision of an Advocate Commissioner. 7. The court below was disinclined to grant the prayer made by the petitioner on the ground that if as a matter of fact the state of affairs is as seen in the photographs, the petitioner would have approached the court below long ago. Since he has not done so, the court felt suspicious about his conduct. That is the ground on which the prayer for repair was declined. That is assailed in this writ petition. 8. At the outset itself one may observe that the reason given by the court below to decline the prayer is not sustainable either on facts or in law. The petitioner had made necessary averments in his petition and pointed out the necessity for the repairs. It is true that the respondents have disputed the claim of damages to the house to the extent claimed by the petitioner and has also accused him of having cut and removed valuable trees standing in the WPC.12400/2010. 6 property. It is also true that the commission report is yet to be accepted and serious objections have been filed by the parties. 9. In the light of the said fact, it cannot now be said that the building, which is now sought to be repaired will be allotted to the petitioner. However, it is true that the petitioner is residing in the building with his family. It is brought to the notice of this court that an impleading petition has been filed in the suit and so it is likely that the final decree proceedings may drag on. Petitioner submits that in the meanwhile his living in the building is rather hazardous if urgent repairs are not done. 10. It is significant to notice that the petitioner undertakes before this court that if he is allowed to carry on the repairs, he will neither claim charges from any sharers nor will he assert any special rights on that basis. He has also expressed his willingness to carry out the repair works in the presence of an Advocate Commissioner to be appointed by the court. WPC.12400/2010. 7 11. On going through the records, it is felt that the prayer made by the petitioner is reasonable. No particular harm or injury is caused to the respondents by allowing the petitioner to repair the petition schedule residence as requested by him. The apprehension of the respondents that the petitioner may appropriate the valuable timber etc. are matters which can be taken care of by appointing an Advocate Commissioner who will make an assessment of the repairs to be carried out and repairs will be carried out in the presence and supervision of the commissioner. Petitioner undertakes that he will not claim any special rights over the building or expenses from other sharers. That takes care of the rights of the parties. In the result, this writ petition is allowed as follows: i) The lower appellate court will depute a Commissioner to assess the present state of affairs of the building and also the nature of the timber with which the building has been constructed. WPC.12400/2010. 8 ii) The court below shall depute another commissioner for inspection and supervision of work. iii) Petitioner is allowed to effect repairs subject to the commission report and under the supervision of a Commissioner to be deputed by the court below. iv) The remuneration of the Commissioner will be borne by the petitioner. vi) It is made clear that the mere fact that the repairs are carried out by the petitioner will not entitle him to claim the expenses incurred by him for the maintenance work from other sharers and also that it will not enable him to claim any special rights or reservation on the basis of this order. P. BHAVADASAN, JUDGE sb.