IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 WP(C).No. 10050 of 2008(U) -------------------------- OS.852/2001 of II ADDL.M.C.,THRISSUR .................... PETITIONER: ------------ O.R.RAMAKRISHNAN, AGED 54, S/O.OLLUKKARA VEETTIL RAMANKUTTY, MANNUTHY DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK. BY ADV. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN ]MT.C.C.JANCY RESPONDENTS: ------------- 1. MALATHY, AGED 57, W/O.VADAKKEPURAKKAL RAMAKRISHNAN, KADALASSERY DESOM, VALLACHIRA VILLAGE, THRISSUR TALUK. 2. GEETHA, AGED 47, W/O.KAMBUZHA SREEDHARAN, EDAKKUNNY VILLAGE-DESOM, THRISSUR TALUK. 3. BHARGAVI, AGED 67, W/O.PAZHAMUKKIL VASU, VELLANIKKARA DESOM, MADAKKATHARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.V.BINOY RAM FOR R1, R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioner's Exhibits:- Ext.P1:- The true copy of work memo filed by the petitioner to the Adv. Commissioner. Ext.P2:- The true copy of report of the Adv.Commissioner. Ext.P3:- True copy of the plan prepared by Village Officer, Ollukkara. Ext.P3(a) True copy of the plan of the property divided by Adv.Commissioner into 3 shares. Ext.P4:- True copy of the objection filed by petitioner to Commission report & Plan. Ext.P5:- True copy of I.A.47/2007 filed by petitioner to set aside Commissioner report & plan. Ext.P6:- True copy of the objection filed by respondents 1 and 2. Ext.P7:- True copy of the order of the Munsiff Court, Trichur in I.A.47/2007 in I.A.5547/2004 in O.S.852/2001 dated 29-10-2007. Ext.P8:- True copy of the document No.4070/1955 of SRO, Thrissur. /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.10050 OF 2008 =========================== Dated this the 23rd day of July, 2008 JUDGMENT Petitioner is the second defendant in O.S.852/2001 on the file of II Additional Munsiff Court, Thrissur. A preliminary decree was passed directing division of item No.1 of the plaint schedule property into three shares and allotment of 2 shares to the plaintiff and one share to the defendant. I.A.5547/2004 was filed for passing a final decree in accordance with the preliminary decree. A Commission was appointed and the Commissioner submitted a report and plan. Petitioner filed an application to set aside the report. Under Ext.P7 order the petition was dismissed. This petition is filed under Article 227 of the Constitution of India challenging Ext.P7 order. 2. Learned counsel appearing for petitioner and contesting respondents were heard. W.P.(C)10050/2008 2 3. The argument of learned counsel appearing for petitioner is that as per the preliminary decree as far as possible the northern portion is to be allotted to the share of the petitioner and as per the report and plan submitted by the Commissioner the northern portion was not allotted to the petitioner and the only reason shown by the Commissioner is that a portion protruding into the northern portion is to be demolished. Learned counsel argued that petitioner had expressed his willingness to demolish that structure in which event the northern plot could be allotted to the petitioner. Learned counsel also pointed out that in Ext.P3 plan Commissioner has shown the east west measurement as 37.80 metres in the first plan as shown by the Village Officer but in the second plan the east west measurement was shown as 36.70 metres. In such circumstances it was argued that learned Munsiff was not justified in dismissing the application. 4. Learned counsel appearing for respondents W.P.(C)10050/2008 3 argued that either at the time of inspection of the Commissioner or earlier petitioner did not express willingness to demolish the protruding structure and in such circumstances, petitioner is not justified in challenging the report on that basis. 5. On hearing the learned counsel for both sides and on going through Ext.P7 order and the defect pointed out by the petitioner, in the interest of justice, learned Munsiff should have remitted the report back to the Commissioner to file a further report considering the objection raised by the petitioner with regard to the division as well as the measurement. The question of allotment of the property is to be decided by the court. Commissioner shall find out whether the northern portion could be separated and allotted to the share of the petitioner as provided in the preliminary decree. Writ Petition is allowed. Learned Munsiff is directed to remit the report to the Commissioner to file a further report in the light of the objection W.P.(C)10050/2008 4 raised by petitioner. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006