IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WP(C).No. 3974 of 2009(W) ------------------------------------- I.A.731/2008 IN O.S.38/2008 OF SUB COURT, CHENGANNUR. ............ PETITIONER/PETITIONER-PLAINTIFF ----------------------------------------------------- KOSHY VARGHESE, S/O.ABRAHAM VARGHESE, POLACHIRACKEL HOUSE, KOLLAKADAVU P.O., CHERIANAD VILLAGE, CHENGANNUR TALUK, NOW RESIDING AT APARTMENT NO.203, PHASE I, PRESTIGE LANGLEIH, ECC ROAD, WHITEFIELD, BANGALORE - 560 066. BY ADV. MR.PHILIP T.VARGHESE MR.THOMAS T.VARGHESE RESPONDENTS/RESPONDENTS-DEFENDANTS ------------------------------------------------------------------ 1. KUNJANNAMA VARGHESE, W/O.LATE ABRAHAM VARGHESE, POLACHIRACKEL HOUSE, ALARAMAPURAM P.O., CHENGANNUR TALUK. 2. ABRAHAM VARGHESE, S/O.LATE ABRAHAM VARGHESE, POLACHIRACKEL HOUSE, KADAYIKADU MURI, CHERIANAD VILLAGE, CHENGANNUR TALUK, EMPLOYED ABROAD, REP. BY HIS POWER OF ATTORNEY HOLDER, P.V.CHERIAN, ADVOCATE, PERUMPATTIL PUTHENVETTIL HOUSE, CHERUKUNNAM MURI, THEKKEKARA VILLAGE, ALAPPUZHA DISTRICT. 3. P.V.CHERIAN, ADVOCATE, PERUMPATTIL PUTHENVETTIL HOUSE, CHERUKUNNAM MURI, THEKKEKARA VILLAGE, ALAPPUZHA DISTRICT. 4. SOUMYA P.S., PANTHAPLAVIL HOUSE, KOLLAKADAVU P.O., KADAYIKADU MURI, CHERIANAD VILLAGE, CHENGANNUR TALUK. 5. SANTOSH, S/O.SASIDHARAN, PANTHAPLAVIL HOUSE, KOLLAKADAVU P.O., KADAYIKADU MURI, CHERIANAD VILLAGE, CHENGANNUR TALUK. R1 BY ADV. MR.S.MOHANAN. R4 BY ADV. DR.K.P.SATHEESAN, MR.K.K.GOPINATHAN NAIR, MR.M.R.JAYAPRASAD , MR.P.MOHANDAS (ERNAKULAM) , MR.MATHEW SUNNY. R3 BY ADV. MR.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) , MR.A.R.DILEEP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 3974/2009-W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AMENDED PLAINT IN O.S. NO.38/2008 OF THE SUB COURT, CHENGANNUR DATED 04/05/2007. EXT.P2: COPY OF THE I.A. NO.731/2008 IN O.S. NO.38/2008 OF THE SUB COURT, CHENGANNUR DATED 15/12/2008. EXT.P3: COPY OF THE OBJECTION FILED BY THE RESPONDENTS 1 AND 2 TO EXHIBIT P2 APPLICATION DATED 09/01/2009. EXT.P4: COPY OF THE OBJECTION FILED BY THE 4TH RESPONDENT TO EXHIBIT P2 APPLICATION DATED 13/01/2009. EXT.P5: COPY OF THE ORDER OF THE SUB COURT, CHENGANNUR IN I.A.731/2008 IN O.S. NO.38/2008 DATED 17/01/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.3974 OF 2009 -------------------------- Dated this the 11th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records resulting in Ext.P5 order, set aside the same and allow Ext.P2 application. ii) Pass such other orders, interlocutory or otherwise, which are deemed fit and proper in the interest of justice. iii) Allow this writ petition with costs. W.P.(C).No.3974 OF 2009 Page numbers 2. Petitioner is the plaintiff in O.S No.38 of 2008 on the file of the Sub Court, Chengannur and the respondents are the defendants. Suit is one for partition and injunction, or in the alternative for recovery of money from the defendants. The case of plaintiff is that on the basis of the power of attorney executed by him in favour of first defendant, the mother along with the second and third defendants that is, his brothers executed sale deeds in favour of the 4th and 5th defendants. Conveyance of the property so made in favour of the 4th and 5th defendants is impeached by the plaintiff raising various allegations set out in the plaint which need not be set outfor the purpose of disposal of this petition. Among the reliefs claimed in the suit the main relief is partition of his share over the suit property ignoring the sale deeds executed in favour of the 4th and 5th defendants treating them as null and void and not binding on him. In the alternative petitioner / plaintiff sought for W.P.(C).No.3974 OF 2009 Page numbers money, quantifying the sum due as his share in the property in case a partition decree cannot be granted. To substantiate the claim for the quantified sum of money which was set up as an alternative relief in the suit and to ascertain and determine the valuation of the property, the petitioner/ plaintiff moved for appointment of an advocate commissioner which was objected to by the respondents / defendants. The learned Sub Judge after hearing both sides dismissed that application by Ext.P5 order. Propriety and correctness of that order is impeached in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P5 order, I find, in the nature of the main relief claimed in the suit for partition and division of the share of the W.P.(C).No.3974 OF 2009 Page numbers plaintiff in the suit property, the question as to whether he is entitled to the alternative relief will arise only if he has partitiable right and that need be gone into only in the final decree proceedings. In such a proceeding alone the appointment of a commission to ascertain his share value will arise for consideration. So much so, I do not find any impropriety or illegality in Ext.P5 order passed by the court below. But I make it clear that in case a plaintiff is found to entitled to a preliminary decree for partition as urged by him, then the observations made under Ext.P5 order will not stand in his way in applying for a commission in the final decree proceedings. Subject to the above observations the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv