IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 WP(C).No. 2419 of 2008(K) ------------------------- AGAINST THE ORDER IN IA.289/06 IN OS.116/1989 of PRL.MUNSIFF, KASARAGOD .................... PETITIONER: ------------ C.P.NARAYANAN, S/O.AMBADY, AGED 61 YEARS, RESIDING AT PADMANABHA COMPOUND, BIKKARNAKATTA, MANGALORE, P.O.KULASEKARA, KARNATAKA STATE, D.K.DISTRICT. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: ------------- 1. KAMALAKSHI, W/O.KARUNAKARAN AND D/O.AMBADY, HINDU, AGRICULTURIST, RESIDING AT PLAVADKAM OF CHEMNAD VILLAGE, KASARAGOD TALUK AND DISTRICT. VELLACHI (DIED) 2. DEVAKI, AGED 70 YEARS, W/O.LATE BAMBAN AND D/O.AMBADY, RESIDING AT BARE VILLAGE AND POST, HOSDURG TALUK. KALLIYANI (DIED) 3. SAROJINI, W/O.LATE GOPALA, RESIDING AT CHELIYANGOD IN CHEMNAD VILLAGE, KASARAGOD TALUK, P.O.KALNAD. 4. SUNDARI, W/O.RAMA, RESIDING AT ERMALU, UDUPI, KARNATAKA STATE. 5. NICHAMMA ALIAS NARAYANI, W/O.LATE ALAMI AND D/O.AMBADY, RESIDING AT PALLIPURAM OF CHEMNAD VILLAGE, KASARAGOD TALUK, P.O.KALNAD. 6. SARASWATHI, W/O.KRISHNAN B.K. AND D/O.AMBADY, RESIDING AT KONAKAD IN CHENGALA VILLAGE AND POST, KASARAGOD TALUK. 7. JANAKI, W/O.KUNHIRAMAN, RESIDING AT PALLIPPURAM, CHEMNAD VILLAGE, KASARAGOD TALUK. 8. VELLACHI, W/O.KUTTYAN, RESIDING AT EDAYAT, KOLIYADUKKAM, KASARAGOD TALUK, P.O.KOLIYADUKKAM. 9. MADHAVI, W/O.APPAKUNHI, RESIDING AT BANDICHAL, KOLIYADUKKAM, KASARAGOD TALUK, P.O.KOLIYADUKKUM. 10. SAVITHRI, W/O.DIVAKARAN, RESIDING AT NULLIPPADY, KASARAGOD KASBA VILLAGE, P.O.KASARAGOD. 11. VIMALA, D/O.RAMAN, RESIDING AT NADAKKAL, CHEMNAD VILLAGE, KASARAGOD TALUK, P.O.KALNAD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.2419 OF 2008 ------------------------------------------ Dated 21st January 2008 J U D G M E N T This petition is filed under Article 227 of Constitution of India by first defendant in the final decree application pending before Munsiff court, Kasargod. Original report and plan submitted by the Commissioner were remitted back on several occasions and finally Exts.P3 report and Ext.P4 plan were submitted to which Ext.P5 objection was filed by the petitioner. Learned Munsiff under Ext.P6 order dismissed I.A.289/2006, filed by the petitioner to set aside the report. Learned Munsiff found that the main objection raised by the petitioner is with regard to the non allotment of plots in R.S.Nos.147/3B and 147/3C on the ground that he effected the improvements in the said property. The question who effected the improvements and to whom the plots are to be allotted, are to be decided by the court on the basis of evidence. Other objection taken by the petitioner was that R.C.C house in R.S.No.159/1B 2 constructed by seventh defendant is not included in plaint schedule property and therefore it cannot be divided. Learned Munsiff found that seventh defendant filed objection to the Commission report and seventh defendant had not raised such a contention. Learned Munsiff dismissed application making it clear that it is for the petitioner to prove the objections raised. Case of learned Senior counsel is that learned Munsiff should not have dismissed the application under Ext.P6 order without deciding a separate application filed by petitioner to purchase the share of eighth defendant under Section 3 of Partition Act. 2. On hearing the learned Senior counsel, I do not find any reason to interfere with Ext.P6 order. Question whether which are the properties to be allotted to which of the sharers is not to be decided by the Commissioner. It is to be decided by the court in the final decree application. Before passing a final decree learned Munsiff has necessarily to pass appropriate order in accordance with law in the application which is submitted to have been filed by petitioner for permission to purchase share of one of other shares, under Section 3 of Partition Act. Petitioner is entitled to adduce evidence with regard 3 to objection raised in I.A.289/2006, including who effected improvements in the plots in R.S.Nos.147/3B and 147/3C as well as whether the house allegedly constructed by seventh defendant falls within the property directed to be divided. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.