IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 CRP.No. 925 of 2007() --------------------- OS.112/1984 of I ADDL.SUB COURT,ERNAKULAM .................... REVN. PETITIONERS: PETITIONERS IN IA 5598/03 IN OS 112/1984/ADDL. DEFENDANTS ----------------------------------------------------------------------------------------------------------------- 1. JOSEPH FRANKLIN, AVITTAMPILLY HOUSE, PEELIKAD, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. PETER THOMSON, AVITTAMPILLY HOUSE, PEELIKAD, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 3. CICILY, KANNANKERRY, KUMBALANGHI VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENTS: RESPONDENTS 1 & 2 IN IA 5998/03 IN OS 112/1984/PLAINTIFFS ---------------------------------------------------------------------------------------------------- 1. MRS. THRESIA XAVIER, W/O. LATE M.T.XAVIER, MANIYATH, THEVARA DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. MRS. IRENE ALOYSIUS @ JESSY, W/O. JOSEPH ALOYSIUS, KUDINGAMPARAMBIL HOUSE, RESIDING AT HOUSE NO.XXVI/2005 IN COCHIN CORPORATION, MANIYATH HOUSE, THEVARA, ERNAKULAM. BY ADV. SRI.P.F.THOMAS (SR.) SRISHIJU VARGHEESE SRI.C.S.YESUDAS THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP 925/2007 ORDER ON IA NO.2624/07 IN CRP NO.925/2007 DISMISSED 13.3.2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE M.N.KRISHNAN, J. ------------------------------------------- C.R.P.No.925 of 2007 ------------------------------------------- Dated this the 13th day of March, 2008 ORDER This revision petition is preferred against the order of the Subordinate Judge, Ernakulam in I.A.No.5598/03 in O.S.No.112 of 1984. 2. It is an application filed by the additional defendants to set aside the additional report of the Commissioner filed on 15.10.2003. A final decree was passed as per I.A.No.2099/89 against which an appeal was preferred as A.S.No.18/99 before this court and a Division Bench of this court set aside the judgment and remanded the matter to the trial court for fresh consideration with certain observations. To understand the case, reference to some brief facts are necessary. There were 16 items of properties sought to be divided. The preliminary decree excluded item 2 and ordered division of the remaining 15 items of the property with 1/3rd share each to Mary, Xavier and Antony. This court found that the Commissioner instead of dividing the entire properties excluded certain properties on the ground that there are kudikidappukars and that strangers are in possession CRP 925/07 2 and kept those properties in common whereby there was not a total division of the property as contemplated in a final decree for partition. There was an additional item number 17 which was omitted to be incorporated and that was also not divided. This court held that irrespective of the fact that some of the properties are outstanding with kudikidappukars or strangers a final decree has to be passed with respect to the partibility of the entire properties involved in the suit and also held that the parties need not be driven into an unnecessary litigation with respect to one item of property which is omitted and therefore ordered division of that property by amendment of the plaint which later became item 17 of the plaint schedule property. So, the crux of the order of the Division Bench of this court is to effect division of the entire properties irrespective of the factum that some of the properties outstanding with the strangers or the kudikidappukars. The Commissioner again reinspected the property and as seen from the order of the court below the kudikidappukars are in item 7 and 12 of the plaint schedule property and a reference to paragraph 8 of the order would further reveal that those items including kudikidappukars had CRP 925/07 3 been allotted to the share of the plaintiff and therefore, the Commissioner has dealt with that properties as well. 3. So far as it relates to strangers there is a contention raised by the learned counsel for the revision petitioner before this court that after 1995 some of the properties had been assigned and they are in the possession of the strangers and it has not been taken into consideration by the Commissioner. The Commissioner could not take those items into consideration for the reason that neither the documents were produced nor materials were supplied to show such items of properties had been transferred after 1995 for consideration. So one cannot blame the Commissioner for the same. A reading of the order of the court below would reveal that the Commissioner has taken into consideration the entire order of remand by this court and has done the work accordingly. Until and unless one is not able to establish or pinpoint the omission by the Commissioner, it may not be possible for the court to adjudicate that point. So with the materials available, the commissioner has done the work and he has also alloted the house in item 1 of the plaint A schedule to the share of the first plaintiff. Reasons are also recorded to the CRP 925/07 4 effect that the first plaintiff has spent huge amount and it is justifiable to allot it to him. It is a matter which need not be really considered in an application to set aside the Commissioner's plan and report and it is a matter that requires adjudication at the time of passing of the final decree proceedings. So, I do not want to make any comment and leave it open to the court below to consider it at the stage of consideration of the final decree proceedings. 4. Since the learned counsel for the revision petitioner has brought to my notice certain assignment deeds, it may be necessary in the interest of all the parties concerned if those documents are produced to consider the question how that property is to be dealt with. I leave it to the revision petitioner to do so if he wants such an adjudication by filing appropriate applications and documents and the court to pass orders after hearing of all the parties concerned. So far as the property with respect to Antony's share is concerned, there is some dispute between the parties and it is for the court to adjudicate upon that and that also is to be decided by the court in the light of the CRP 925/07 5 various proceedings between the parties interse. Therefore, the Civil Revision Petition is disposed of as follows: (1) I do not find any ground to set aside the Commissioner's plan and report. (2) I give liberty to the revision petitioners to move the court for appropriate directions with respect to the property alleged to be in the hands of the strangers by virtue of assignment deeds executed by the shareholders. (3) It is for the court to decide regarding the allotment of house in the items at the time of final conclusion of the proceedings. The Civil Revision Petition is disposed of accordingly. M.N.KRISHNAN, JUDGE csl