IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 WP(C).No. 23279 of 2008(U) -------------------------- OS.24/2006 of SUB COURT, KOYILANDY .................... PETITIONER: ------------ CHIRUTHA, D/O.CHEKKUTTY RESIDING AT KADIYANGATTIDATHIL HOUSE CHANGAROTH AMSOM, KADIYANANGAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.P.K.RAMKUMAR SMT.ANITHA MENON RESPONDENTS: ------------- 1. P.M.GANGADHARAN, AGED 52 YEARS, S/O.KUNHI KANNAN, PUYIKUNI NADA “GANGOTHRI” HOUSE, CHANGAROTH AMSOM, KODIYANGAD DESOM, KOYILANDY TALUK. 2. KADIYANGATIDATHIL RAMAN, AGED 80 YEARS S/O.CHEKKOTTY, PINANGOTTU HOUSE MUTHUVANNACHA, KUTTIYADI, KOYILANDY TALUK 3. KADIYANGATTIDATHIL KALLYANI, D/O.CHEKKOTTI, THAYYULLATHIL HOUSE PALERI AMSOM, VADAKKUMBADU DESOM KOYILANDY TALUK. 4. KUNHIKANNAN, S/O.RAMAN, KAPPICHIKANDIYIL HOUSE, PILLAPERUVANNA CHAKKITTAPARA, KOYILANDY TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 23279 OF 2008 ------------------------------------------ Dated this the 31st day of July, 2008 JUDGMENT Petitioner is the second respondent in the final decree application I.A.619 of 2007 in O.S. 24 of 2006 on the file of Sub Court, Koyilandy. After the commissioner submitted a report, plan and account, petitioner filed an application to remit them. It was allowed. Commissioner, thereafter, submitted a further report and plan. Petitioner then filed I.A.520 of 2008, an application to set aside the report and plan. Under Ext.P9 order, learned Sub Judge rejected the prayer for setting aside the report, but remitted the report to the commissioner to file a fresh report and plan showing the correct extent of the decree schedule property. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that commissioner is a junior Advocate, who is not experienced and because of his inexperience, a portion of the property which is to be divided, was excluded on the representation made by the plaintiff and even though a work memo was filed by the WP(C)23279/08 2 petitioner, commissioner did not verify the same and based on the report filed a final decree cannot be passed. 4. On hearing the learned counsel and going through Ext.P9 order, I do not find any illegality or irregularity warranting interference in exercise of powers under Article 227 of Constitution of India. Though learned counsel argued that the best plot was alloted to first respondent by the commissioner, Court is not bound by the allotment made by the commissioner. It is for the Sub Judge to decide which plot is to be allowed to which party. Therefore on that ground there is no necessity to set aside the report. 5. Learned counsel then submitted that work memo submitted by petitioner was not considered by the commissioner. If that be the case, as the report has already been remitted back to the commissioner, a direction could be issued to the commissioner to verify the points sought to be noted in the work memo also. Petitioner is also entitled to adduce evidence in support of his objections. If at the time of recording evidence, the Court finds that report submitted by commissioner is not sufficient or cannot be relied on, Court can WP(C)23279/08 3 pass appropriate orders at that time. Writ petition is disposed directing the commissioner to note the points stated in the work memo submitted by the petitioner earlier. M. SASIDHARAN NAMBIAR, JUDGE Okb/-