IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 WP(C).NO. 21448 OF 2010(O) ----------------------------------------- AGAINST THE ORDER DATED 03/07/2010 IN IA.1171/2003 IN OS.679/1998 OF PRL.SUB COURT,THRISSUR .................... PETITIONER(S): --------------------------- 1. SUBHADRA, VALSA NIVAS, KANATTUKARA, THRISSUR. 2. SUNILKUMAR, VALSA NIVAS, KANATTUKARA, THRISSUR. 3. SUJITHKUMAR, VALSA NIVAS, KANATTUKARA, THRISSUR. 4. SURESHKUMAR, VALSA NIVAS, KANATTUKARA, THRISSUR. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.P.K.NIJOY RESPONDENT(S): ---------------------------- 1. VENUGOPALAN, SON OF PURANATTUKARA KRISHNAN, KANATTUKARA DESOM, AYYANTHOLE, THRISSUR, NOW RESIDING AT KALANDYTHADAM, KOZHIKODE-79 2. CHANDRASEKHARAN, SON OF PURANATTUKARA KRISHNAN, DEEPAM, SEETHARAM MILL LANE, POONKUNNAM, THRISSUR-02. 3. RATNAVALLAY, DAUGHTER OF PURANATTUKARA KRISHNAN, DEEPAM, SEETHARAM MILL LANE, POONKUNNAM, THRISSUR-02. 4. VALSALAKUMARI, DAUGHTER OF PURANATTUKARA KRISHNAN, DARSANA, NELLIKUNNU, THRISSUR-05. 5. RUGMINI, DAUGHTER OF KRISHNAN, WIFE OF GOPALAN, GOKULAM, KALLUPADAM LANE, KANATTUKARA.P.O, THRISSUR-11. 6. RANJITH, SON OF LATE GOPALAN, GOKULAM, KANATTUKARA.P.O, THRISSUR-11. 7. SNEHALATHA, DAUGHTER OF THE LATE SMT.LEELA, VALLANGALLUR VEEDU, THOKKAMPARA, KOTTAKKAL, MALAPPURAM-03. 8. KALADESI, KILUKKAM, PARAVATTANI, OLLUKKARA.P.O, THRISSUR-05. 9. JAYAPRAKASH, PERINGERI JEWELLERY, MAKKARAPARAMBU, MALAPPURAM DSITRICT-07. 10. SOMASUNDARAM, VALSA NIVAS, KANATTUKARA, THRISSUR-11. 11. PRABHAKARAN, RACHANA, VANIYAN LANE, CHAKKAMUKKU, POONKUNNAM, THRISSUR-02. 12. SUMISHA, VALSA NIVAS, KANATTUKARA, THRISSUR-11. 13. REKHA, DAOUGHTER OF PURANATTUKARA GOPALAN & RUGMINI, KANATTUKARA DESOM, AYYANTHOLE VILLAGE, THRISSUR-11. ADV. SRI.P.SANTHOSH (PODUVAL) FOR R2 & 4 SMT.R.RAJITHA FOR R2 & 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY O THE FINAL DECREE APPLICATION I.A. NO.1171 OF 2003 IN O.S. NO.679 OF 1998 OF THE SUB COURT, THRISSUR. EXHIBIT P2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN I.A. NO.1171 OF 2003 IN O.S. NO.679 OF 2008 OF THE SUB COURT, THRISSUR. EXHIBIT P3 TRUE COPY OF THE REPORT DATED 7.1.2006 FILED BY THE ADVOCATE COMMISSIONER IN I.A. NO.1171 OF 2003 IN O.S. NO.679 OF 29918 OF THE SUB COURT, THRISSUR. EXHIBIT P4 TRUE COPY OF THE REPORT DATED 5.8.2009 FILED BY THE ADVOCATE COMMISSIONER. EXHIBIT P5 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS. EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFFS. EXHIBIT P7 TRUE COPY O THE ORDER DATED 3.7.2010 IN I.A. NO.1171 OF 2003 IN O.S. NO.679 OF 1998 OF THE SUB COURT, THRISSUR. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.21448 of 2010 ==================================== Dated this the 02nd day of August, 2010 J U D G M E N T Defendants in O.S. No.679 of 1998 of the court of learned Sub Judge, Thrissur are the Writ Petitioners challenging Ext.P7, order dated 03.07.2010 on I.A.No.1171 of 2003. A final decree is passed for partition of 13.75 cents of land and a building thereon. As per that final decree plaintiff Nos.1 to 4 get 1/9 share each while plaintiff Nos.5 and 6 together get 1/9 share. Plaintiff Nos.7 to 9 also get 1/9 share together. Defendant Nos.1 and 2 together get 1/9 share while defendant Nos.3 to 7 get 1/9 share together. Persuant to the final decree the Advocate Commissioner inspected the property and submitted Ext.P3, report stating that it is feasible to sell the property in auction fixing Rs.10 lakhs as upset price. He along with the Expert Commissioner, a retired Engineer inspected property. According to the Expert Commissioner, local enquiry revealed value of the property as above Rs.1,50,000/- per cent. He therefore assessed the value at Rs.1,50,000/- per cent. Thus value of 13.75 cents came to Rs.20,62,500/-. He also assessed value of W.P(C) No.21448 of 2010 -: 2 :- the building and the total value of land and building according to the Expert Commissioner is Rs.26,66,005/-. Learned Sub Judge passed Ext.P7, order fixing 12.7.2910 as the date for sale of the property and upset price as amount fixed by the Expert Commissioner as stated above. That order is under challenge. Learned counsel for petitioners contended that value assessed by the Expert Commissioner is a blown up figure and it is not real. According to the learned counsel for the purpose of valuation P.W.D rate of value of property has to be taken into account. It is also contended that both sides preferred objection to the report of Expert Commissioner and learned Sub Judge has not adverted to the objection. Learned counsel for respondent Nos.2 and 4 (plaintiff Nos.2 and 4) stated that auction is now scheduled to be held among the sharers and it is open to a sharer to bid in auction for the highest amount. According to the learned counsel respondent Nos.2 and 4 are willing to purchase the land with building for the value assessed by the Expert Commissioner. Learned counsel for respondent Nos.2 and 4 has given me a copy of notice served on parties by the Advocate Commissioner showing value of the land with building as Rs.26,66,005/- certainly in accordance with the report of Expert Commissioner. W.P(C) No.21448 of 2010 -: 3 :- 2. It is true that in Ext.P7, order there is no specific reference to the objection raised by the parties to the report of Commissioner and Expert Commissioner. Learned Sub Judge has stated that upset price can be fixed as the price fixed by the Expert Commissioner. It follows from Ext.P7 that learned Sub Judge has accepted report submitted by the Expert Commissioner. Getting highest price for the property will only be advantageous for all the sharers. Mere fact that petitioners are staying in the building in question and are not able to pay the price suggested by the Expert Commissioner or even more than that is not a sufficient ground to reject the report or price fixed by the court below. Attempt is to get the highest possible price for the property. Having regard to the facts and circumstances of the case I do not find reason to interfere with the order under challenge. Writ Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv