IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 29TH NOVEMBER 2007 / 8TH AGRAHAYANA 1929 WP(C).No. 22543 of 2007(H) --------------------------------- AGAINST THE ORDER DATED / / IN IA.2685/05 IN OS.203/2004 of PRL.M.C.KOZHIKODE-I .................... PETITIONERS: ---------------- 1. P.M.JAMEELA, D/O.HAJEE P.MAMOO, BIJAS, MAJOR SANTHOSH ROAD, WEST NADAKKAVU, KOZHIKODE TALUK & (DT.). 2. P.M.ZAINBI, D/O.JAJEE P.MAMOO, ZANOOR, CHULLIYOD ROAD, PALATTUTHAZAM, KOZHIKODE TALUK AND (DT.). 3. P.M.GAYAHAR, D/O.HAJEE P.MAMOO, SOJA VEEDU, MADHURAVANAM ROAD, CIVIL STATION P.O., KOZHIKODE TALUK AND (DT.). BY ADV. SRI.PHILIP ANTONY CHACKO SRI.M.R.MOUNEESH RESPONDENTS: ------------------ 1. IMPACHIPATHUMABI (JUNIOR), D/O.IMBICHIPATHUMABI, 25/1907-A, 'HANAN', KOMMANERA, KINASSERY, POKKUNNU (P.O.), KOZHIKODE TALUK 7 (DT.). 2. P.M.AHAMMEDKOYA, S/O.IMPACHIPATHUMABI, 2/766, JAMEELA MANZIL, ERANHIPALAM, KOZHIKODE TALUK 7 (DT.). 3. P.M.ABDUL RAFEEQUE, S/O.P.M.IMPACHIPATHUMABI, 2/766, JAMEELA MANZIL, ERANHIPALAM P.O., KOZHIKODE TALUK & (DT.). BY ADV. SRI.K.M.FIROZ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.22543/2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1:- COPY OF THE JUDGMENT DT.30.3.05 IN OS. NO.203/04, PASSED BY THE PRINCIPAL MUNSIFF-I, KOZHIKODE. EXT.P2:- COPY OF THE COMMISSION REPORT DT. 12.4.06 FILED IN IA. NO.2685/05 IN OS. NO.203/04 BEFORE THE PRINCIPAL MUNSIFF COURT-I, KOZHIKODE. EXT.P3;_ COPY OF THE VALUATION REPORT FOR THE SERVICEABLE MATERIALS OF AVAILABLE FROM THE EXISTING HOUSE NO.2/766 IN WARD NO.2 IN RS. NO.2-180678 OF CALICUT CORPORATION DT. 11.4.06 PREPARED BY THE REGISTERED ENGINEER FILED ALONG WITH THE COMMISSION REPORT. EXST.P4:- COPY OF THE VALUATION REPORT FOR THE EXISTING SHOP BUILDING AT ERNAHIPALAM WITH DOOR NO.2/767 TO 2/770 IN WARD NO.2 IN RS. NO.2-18-678 OF CALICUT CORPORATION DT. NIL PREPARED BY THE REGISTERED ENGINEER FILED ALONG WITH THE COMMISSION REPORT. EXT.P5:- COPY OF THE VALUATION REPORT FOR THE EXISTING SHOP BUILDING AT NAGARAM VILLAGE WITH DOOR NO.9/1152, WARD NO.9 OF CALICUT CORPORATION AT BIG BAZAR DT. NIL PREPARED BY THE REGISTERED ENGINEER FILED ALONG WITH THE COMMISSION REPORT. EXT.P6:- COPY OF THE PLAN DT. 11.4.06 OF 59./50 CENTS IN SY. NO.2-18- 678 IN KATCHERI VILLAGE, KOZHIKODE TALUK PREPARED BY THE DISTRICT SUPERINTENDENT OF SURVEY AND RECORDS DEMARCATING THE SEVEN PLOT. EXT.P7:- COPY OF THE AFFIDAVIT DT. 5.7.06 FILED BY THE 2ND PETITIONER ON BEHALF OF THE OTHER PETITIONERS ALONG WITH IA. NO.3045/06 IN IA. 2685/05 IN OS. NO.03/04 BEFORE THE MUNSIFF COURT-I, KOZHIKODE TO REMIT THE COMMISSION'S REPORT AND PLAN. EXT.P8:- COPY OF THE APPLICATION DT. 3.7.06 MADE BY THE 3RD PETITIONER AND THE CERTIFICATE ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER , PWD I & P (OC) SUB DIVISION, KOZHIKODE 20 ISSUED TO THE 3RD PETITIONER. EXT.P9:- COPY OF THE REPORT ON VALUATION OF PROPERTY DT. 3.6.06 OF THE BUILDING NO.2/767 TO 2/770 IN T.D NO.2-18-678 WARD NO.2 CALICUT CORPORATION ISSUED BY CHAREY J. THOMAS APPROVED VALUER. W.P.(C) NO.22543/2007 EXT.P10:- COPY OF THE REPORT ON VALUATION OF PROPERTY DT. 3.6.06 OF THE SHOP HAVING DOOR NO.9/1152, WARD NO. 9 OF CALICUT CORPORATION AT BIG BAZAAR ISSUED BY CHAREY J.THOMAS APPROVED VALUER. EXT.P11:- COPY OF THE CERTIFICATE DT. 4.7.06 ISSUED BY THE TOWN PLANNER CALICUT DEVELOPMENT AUTHORITY TO THE 3RD PETITIONER. EXT.P12:- COPY OF THE EXT.P6 PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER BEFORE THE PRL.MUNSIFF-I OF KOZHIKODE IN WHICH THE TOWN PLANNER OF CALICUT DEVELOPMENT AUTHORITY DEMARCATED THE PROPOSED FOUR LINE ROAD AND THE AREA (EXTENT)GOING TO BE ACQUIRED FROM THE 59.5 CENTS OF THE PLAINT SCHEDULE ISSUED TO THE PETITIONERS. EXT.P13:- COPY OF THE JUDGMENT DT. 6.3.07 IN WPC./ 25100/06 BY THIS HONOURABLE COURT. EXT.P14:- CERTIFIED COPY OF THAT ORDER DT. 11.4.07 IN IA. NO.3045/06 IN IA. 2685/05 IN OS. NO.203/04 BY THE PRL.MUNSIFF COURT-I, KOZHIKODE. EXT.P15:- COPY OF THE AFFIDAVIT AND PETITION IA. NO.2162/07 DT. 7.6.07 FILED IN IA. NO.21685/05 IN OS. NO.203/04 BY THE PETITIONERS BEFORE THE MUNSIFF COURT-I, KOZHIKODE. /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== W.P.(C) No.22543 OF 2007 ===================== Dated this the 29th day of November 2007 JUDGMENT This writ petition is filed to set aside the order of the Prl.Munsiff's Court-I, Kozhikode in I.A.No.3045 of 2006 in I.A.No.2685/2005 in O.S.No.203 of 2004. The suit is one for partition and a preliminary decree had been passed whereby the plaintiff is entitled to 1/8 share, defendants 2 to 4 are entitled to 1/8 share each and defendants 1 and 5 are entitled to 2/8 shares each. The Commissioner appointed in the matter has submitted a plan and report and objections were filed as Ext.P7 by defendants 2 to 4. Earlier, the matter came up before this Court in W.P.(C)No.25100 of 2006 whereby this court quashed the earlier order and directed the Munsiff to consider I.A.No.3045/2006 afresh. It is as per this direction, the present order is passed by the court below. 2. The main objection raised by the defendants 2 to 4 is regarding plot 7. It is submitted by them that there are documents to show that there is a proposal to acquire 6 metres wide land through out from plot 7 for widening of the mini bye pass lane. It is submitted that if a building is to WP(C) 22543/2007 -:2:- be constructed as per the Municipality Rules, 3 metres have to be left and the balance extent available there will be a land having a width of 1 metre. Therefore, it is submitted that plot 7 need not be allotted to the 2nd respondent in the case. It is further contended that the Commissioner has not calculated about the mesne profits and further the valuation given is incorrect for the reason that the building situated in the big bazaar is outstanding in the possession of the tenants for a very long time. 3. Now the learned counsel had drawn by attention to Ext.P11, a letter issued by the Town Planner, Calicut Development Authority, wherein it is stated that there is a proposal to widen the road to 18 metres and if sanctioned about 6.5 metres wide strip of land will be required on the eastern boundary of the applicant's plot. It is true that there is no notification for acquisition. But the initiation of acquisition is contemplated in the case. When such is the situation, it may create heart burn if that area is allotted to one sharer whereby on acquisition, he or she will be totally deprived of any land. Therefore there is some force in the contention which requires consideration. Therefore in order to make the court below to consider the matter in the proper perspective, I feel a direction can be given to the Commissioner, whereby he may prepare an alternate plan and report whereby the proposed area contemplated to be acquired is divided among WP(C) 22543/2007 -:3:- all the sharers and the partition is done taking into consideration that aspect which may require re-allotment of the property here and there. Commissioner, being the best man on the spot to do things can take into consideration the convenience of all and without causing much inconvenience to all, prepare an alternate plan and report and submit before the court. When such a Commissioner's plan and report is also available and evidence is let in regarding the proposal to acquire land and if it is acceptable, then the court can resort to such a plan for passing final orders. On the contra, if it is not proved the court can consider the other matters and pass appropriate orders. So far as the valuation part is concerned, since objections are raised, the Commissioner may have a re look into those matters and furnish particulars regarding the correctness of the same. So also regarding mesne profits, the Commissioner has to work it out for the reason that it has to be incorporated in the final decree. I make it clear that the observation made by the learned Munsiff regarding the fact that there is nothing to show about the acquisition shall not be taken as a bar for considering the matter afresh, if he is convinced by evidence adduced by the parties in this regard. Or, in other words, parties, who had raised objections are free to adduce evidence on all the points which they have raised on the objection. So when two modes of allotment are available and they are WP(C) 22543/2007 -:4:- placed before the court, parties can let in evidence on the mode which is to be accepted and the court after considering their evidence and after hearing them shall decide the best mode of allotment and pass a final decree in accordance with law. Being a suit for partition, parties want separation of shares at the earliest, the Commissioner shall expedite the matter and the court shall bestow its best attention for a speedy disposal of the matter in accordance with law. Writ petition is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-