IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 32413 of 2008(H) --------------------------------------- AGAINST THE ORDER DATED 30/07/2008 IN IA .NO.1234/2008 IN OS.NO.477/2007 OF PRL.MUNSIFF COURT, KOTTAYAM. .................... PETITIONER: ------------------- T.P.MATHEW, AGED 82, S/O.KURIAN PAILO, THUPPENCHERIL HOUSE, MANGANAM P.O., KOTTAYAM. BY ADV. MR.ABRAHAM GEORGE JACOB. RESPONDENTS: ------------------------ 1. T.P.KURUVILLA, AGED 80, S/O.KURIAN PAILO, THUPPENCHERIL HOUSE, MANGANAM P.O., KOTTAYAM. 2. SARAMMA JOY, W/O.JOY, AGED 56, KARIMPANTHARA HOUSE, VADAVATHOOR P.O., KOTTAYAM. 3. LEELAMMA, W/O.ACHENKUNJU, AGED 52, PATTATHANATHU HOUSE, CHENGALAM P.O., KOTTAYAM. 4. AJI MATHEW JACOB, S/O.CHACKO, THUPPENCHERIL HOUSE, MANGANAM P.O., KOTTAYAM. 5. ALEYAMMA CHACKO, W/O.CHACKO, AGED 82, THUPPENCHERIL HOUSE, MANGANAM P.O., KOTTAYAM. 6. SOUMYA PAUL JACOB, D/O.PAUL JACOB, AGED 23, THUPPENCHERIL NADUMURY, MALAM P.O., KOTTAYAM. 7. SONIYA PAUL JACOB, D/O.PAUL JACOB, AGED 25, THUPPENCHERIL NADUMURY, MALAM P.O., KOTTAYAM. W.P.(C). NO.32413/2008-H: 8. SOJA PAUL JACOB, D/O.PAUL JACOB, AGED 20, THUPPENCHERIL NADUMURY, MALAM P.O., KOTTAYAM. 9. MOLLY PAUL JACOB, W/O.PAUL JACOB, AGED 53, THUPPENCHERIL NADUMURY, MALAM P.O., KOTTAYAM. 10. PHILIP.M.THOMAS, S/O.THOMAS, AGED 53, MALAYIL HOUSE, MANGANAM P.O., KOTTAYAM. 11. SAJAN THOMAS, S/O.THOMAS, AGED 44, MALAYIL HOUSE, MANGANAM P.O., KOTTAYAM. 12. SARAMMA UTHUP, D/O.THOMAS, IDATHARA, NALUNAKKAL, VAKATHANAM P.O., KOTTAYAM. 13. JOLLY ELIZABETH THOMAS, D/O.THOMAS, PERUMANNOOR HOUSE, PARIPPU P.O., KOTTAYAM. 14. ALEYAMMA THOMAS, W/O.THOMAS, MALAYIL HOUSE, MANGANAM P.O., KOTTAYAM. R1 TO R9 BY ADVS. MR.JAMES KURIAN, MR.SANTHOSH MODAYIL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.32413/2008-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 477/2007 DTD. 17/10/2007. EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 1 TO 9 DTD. 02/02/2008 IN O.S. NO. 477/2007. EXT.P.3: COPY OF THE APPLICATION NO. 1234/2008 IN O.S. NO. 477/2007 DTD. 26/05/2008. EXT.P.4: COPY OF THE OBJECTION FILED BY RESPONDENTS 1 TO 9 IN I.A. NO. 1234/2008. EXT.P.5: COPY OF THE ORDER DTD. 30/07/2008 IN I.A. NO. 1234/2008 IN O.S. NO. 477/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.32413 OF 2008 -------------------------- Dated this the 20th day of October 2009 ------------------------------------- JUDGMENT Petitioner is the plaintiff in O.S No.477 of 2007 on the file of the Principal Munsiff Court, Kottayam. Suit is for partition and also for fixation of boundary. Plaintiff claimed ¼ share in the suit property and also an additional relief for fixing its boundaries on division by metes and bounds. Claim of the plaintiff was resisted by the defendants contending that there was already an oral partition and the property lies separated by metes and bounds. In view of the contentions taken by the defendant, petitioner applied for appointment of a commission to measure out the property. The court below dismissed that application vide Ext.P5 order holding that since the suit claim is based on partition, measuring out W.P.(C).No.32413 OF 2008 Page numbers of the suit property for the purpose of fixation of boundary, if at all the plaintiff is entitled to such partition, can be considered after passing of the preliminary decree. Propriety and correctness of that order is challenged in the suit invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. The learned counsel for the petitioner submitted that there are some observations in Ext.P5 order, which if not removed are likely to cause injury to the petitioner/plaintiff in the disposal of the suit on merits. Perusing Ext.P5 order, I find there is no definite finding or observation as such causing any injury to the petitioner/plaintiff. I make it clear that none of the observations in the impugned order shall have any reflection or bearing in the disposal of the suit on merit. Plaint claim W.P.(C).No.32413 OF 2008 Page numbers is based on partible right of the plaintiff over the suit property. Merely because defendant has contended that there was an oral partition it will not enable the plaintiff to seek for taking out a measurement especially when he has no such case. Such being the position, I find there is no impropriety or illegality in Ext.P5 order passed by the court that at this stage no commission need to be taken out. Writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv