IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 WP(C).No. 34700 of 2008(E) -------------------------------------------- OS.104/2003 of II ADDL.M.C., KOZHIKODE .................... PETITIONER: P.VASU, AGED 67, S/O.AMMU AMMA, VARIYARTHODI VEETIL HOUSE, VELIPRAM AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS SRI.SRINATH GIRISH RESPONDENTS: 1. RADHAKRISHNAN, AGED 63, S/O.AMMU AMMA. 2. DHAMODARAN, AGED 53, S/O.AMMU AMMA. 3. SAROJINI, AGED 55, D/O.AMMU AMMA. 4. THANKAM ALIAS LAKSHMI KUTTY, AGED 48, D/O.AMMU AMMA. 5. SETHUMADHAVAN, AGED 46, S/O.AMMU AMMA. ALL RESIDING AT KATTUTHODIL VEEDU, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.34700 of 2008 E -------------------------- JUDGMENT Heard counsel for the petitioner. 2. It is not in dispute before me from the arguments advanced by the learned counsel for the petitioner that there is any dispute between the defendants inter se as regards allotment of the house in the scheduled property jointly to the defendants, while allotting separate share to the petitioner from out of the scheduled property allowed to be partitioned by metes and bounds or that any other defendant other than the plaintiff is claiming separate share from the scheduled property. The court below, vide impugned order, has remitted back the commission report and directed the Commissioner to effect a division of the property so as to allot the house with appurtenant land, well and bathroom jointly to the share of the respondents/defendants; that while doing so, the Commissioner shall also take into account the total extent of property to which the respondents are WPC 34700/08 2 entitled; that the Commissioner shall see whether the properties situated on the northern side of the house can be allotted to the petitioner/plaintiff, who is the applicant for passing of the final decree and that while making such allotment, petitioner should get towards his share a plot abutting the road to compensate non-allotment of the house to the petitioner. The Commissioner was further directed to verify whether a way in east- west direction as shown in the sketch (it is submitted that the way from the road is actually from south to north), is necessary if the allotments are made as suggested above. 3. It is vehemently urged by the counsel for the petitioner, assailing the said directions given by the court below that the property was originally acquired by the petitioner in the names of himself and his mother and that by the present allotment, he is deprived of the right to get the house in the scheduled property being allotted to him. This is a contention which should have been taken on the preliminary decree stage claiming special right WPC 34700/08 3 over the building. That had not been done. In the final decree proceedings what can be considered is only equities in allotment. It is not in dispute that the defendants are in occupation of the building in the scheduled property. To allot the building to the petitioner and to evict the respondents from the building in their occupation will not be justified in equity. Another grievance that was attempted to be highlighted before me is that by the direction given by the court below petitioner will be getting his share in two plots which will be inconvenient to him. When argument was so advanced, it was suggested that direction given by the court below can be modified enabling the petitioner to get his share allotted as one plot on the northern side of the portion of the property, where the building is situated. To that course, counsel for the petitioner is not agreeable and he submits that in that event, petitioner will not be getting any plot abutting the road and consequently, the property that may be allotted to him will be having much diminution in land value. WPC 34700/08 4 In other words, petitioner wants the direction given by the trial court to allot a plot abutting the road also to be maintained. If that be so, when, in equity, petitioner is not entitled to have the building in the scheduled property allotted to his share, he will be getting two plots, one adjoining the public road on the south and the other on the northern side of the building in the scheduled property. Thus, in effect, the petitioner does not want any remedy in this writ petition other than to get the building in the scheduled property allotted to his share, which is now in occupation of the defendants and consequently, as equity does not permit that course, the request made on behalf of the petitioner is rejected. The result is that there is no merit in this writ petition and this writ petition is dismissed. 25th November, 2008 (K.P.Balachandran, Judge) tkv