IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 OP(C).No. 367 of 2010(O) ------------------------ ( AGAINST THE ORDER IN IA 711/2010 IN OS.35/2010 of MUNSIFF COURT,VARKALA) .................... PETITIONERS -------------------- 1. NAZEEMA, D/O.HAJIRA UMMAL, MULLAMVILA VEEDU, MANTHARA DESOM, EDAVA VILLAGE, THIRUVANANTHAPURAM-695311, FROM KUZHIVILAKATHU VEEDU. 2. HAJIRA UMMAL, D/O.PATHUMMAL, MULLANVILA VEEDU, MANTHARA DESOM, EDAVA VILLAGE, THIRUVANANTHAPURAM-695311, FROM KUZHIVILAKATHU VEEDU. BY ADV. SRI.R.ANILKUMAR RESPONDENTS: ---------------------- 1. MUHAMMED BASHEER, S/O.MOHAMMED ABDULLA, VILAYIL VEEDU, EDAVA P.O., THIRUVANANTHAPURAM-695311. 2. SALIM, S/O.MOHAMMED RASHEED SALIM, SEENA MANZIL, NEAR RAILWAY STATION, EDAVA P.O., PIN-695311. 3. SIYAVUDEEN AHAMMED SULERI, S/O.SALAVUDEEN, SREEMASIN, VAILOOR DESOM, MANGALAPURAM, PIN-695101. 4. FAIRUS HAMSA, S/O.HAMSA, BINJMAN VEEDU, VENKULAM DESOM, EDAVA VILLAGE, PIN-695311. OP(C).No. 367 of 2010(O) ----------------------------------- 5. ALI AKBAR SHIHABUDEEN, SREE MAHAN VEEDU, NILAKKAMUKKU, KADAKKAVOOR VILLAGE, PIN-695311. 6. ALI AKBAR MUHAMMED KASIN, MULLANVILA VEEDU, MANTHARA DESOM, EDAVA VILLAGE, PIN-695311. 7. NAZEEMA, W/O.THAHAKUTTY, HABEEB MANZIL, MANTHARA DESOM, EDAVA VILLAGE, PIN-695311. 8. PRAVEEN, S/O.THAHAKUTTY, MANTHARA DESOM, EDAVA VILLAGE, PIN-695311. 9. THENVEER, S/O.THAHAKUTTY, MANTHARA DESOM, EDAVA VILLAGE, PIN-695311. 10. HAREES, S/O.THAHAKUTTY, MANTHARA DESOM, EDAVA VILLAGE, PIN-695311. 11. SALMA BEEVI, D/O.PATHUMMAL, "THUSHARA", MANTHARA DESOM, EDAVA VILLAGE, PIN-695311. 12. AYSHA BEEVI ASHIDA, MANAVIYAM VEEDU, MANTHARA DESOM, EDAVA VILLAGE, PIN-695311. 13. SHEEMA, D/O.AYSHA BEEVI, LEKSHMI BHAVAN, SANNIDHI STREET, JANARDHANAPURAM, VARKALA VILLAGE, PIN-695141. 14. AYSHA BEEVI HENA, MANAVIYAM VEEDU, MANTHARA DESOM, EDAVA VILLAGE, PIN-695311. 15. MUHAMMED ASLAM, S/O.MUHAMMED SADIQ, MANAVIYAM VEEDU, MANTHARA DESOM, EDAVA VILLAGE, PIN-695311. 16. LAILA BEEVI, D/O.MUHAMMED ABDULLA, MUTHANGATHARA VEEDU, THOPPINKADAV, KOLLAM, PIN-691001. 17. MOOSAKUTTY, S/O.ABDULLA, MUTHANGATHARA VEEDU, THOPPINKADAV, KOLLAM, PIN-691001. OP(C).No. 367 of 2010(O) ------------------------------------- 18. MOOSAKUTTY, S/O.MUHAMMED ABDULLA, VILAYIL VEEDU, MANTHARA DESOM, EDAVA VILLAGE, PIN-695311. R1 BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 367 of 2010(O) ----------------------------------- APPENDIX ----------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE PLAINT IN OS. NO.35/2010 BEFORE THE MUNSIFF'S COURT, VARKALA. EXT.P2. COPY OF THE ORDER IN IA NO.235/2010 DATED 09.04.2010 PASSED BY THE MUNSIFF'S COURT, VARKALA. EXT.P3. COPY OF THE PETITION IA NO.711/2010 IN OS NO.35/2010 FILED BEFORE THE MUNSIFF'S COURT, VARKALA AS 29.03.2010. EXT.P4. COPY OF THE ORDER IN IA. NO.711/10 IN OS. NO.35/10 PASSED BY THE MUNSIFF'S COURT, VARKALA. EXT.P5. COPY OF THE ORDER IN IA NO.1096/10 IN OS. NO.35/10 PASSED BY THE MUNSIFF'S COURT, VARKALA. EXT.P6. COPY OF THE SITE PLAN OF THE PLOT WAS PREPARED BY THE BUILDING SUPERVISOR ON THE BASIS OF THE SALE DEED NO.4798/2008. EXT.P7. COPY OF THE ORDER IN IABNO.711/10 IN OS. NO.35/10 DATED 13.09.2010. RESPONDENTS' EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.367 of 2010 --------------------------------------- Dated this 13th day of December, 2010 JUDGMENT Petitioners are defendant Nos.1 and 2 in O.S.No.35 of 2010 of the court of learned Munsiff, Varkala. That is a petition for partition filed by respondent No.1. He claimed 4/18 shares. Petitioners resisted the suit on various contentions. They also claimed to have obtained the share of some of the defendants in the suit. On I.A.No.235 of 2010 learned Munsiff passed Ext.P2, order directing parties to maintain status quo as reported by the Advocate Commissioner until disposal of that application. While so, petitioner filed I.A.No.711 of 2010 for review of the said order to permit them construct building in 5.58 Ares which they claimed has been alloted to them as per settlement deed No.4798 of 1998. Learned Munsiff passed Ext.P4, order dated 09-04-2010 directing petitioners to produce plan on or before 02-06-2010. Accordingly petitioners produced plan of the proposed structure. Learned Munsiff then passed Ext.P7, order on I.A.No.711 of 2010 dismissing that application. That order is under challenge. Learned counsel for petitioners contends that even if the share claimed by respondent No.1 is alloted to him, petitioners are entitled to construct building in the rest of the property and that will not in any way affect claim of O.P(C).No.367 of 2010 : 2 : respondent No.1. Learned counsel has referred me to the relief sought for by respondent No.1 in the plaint that share of respondent No.1 including portion where house is situated may be alloted to him. According to the learned counsel, that claim will not be affected by petitioners constructing the building in a portion of the property as claimed by them. Learned Senior Advocate has contended that in a suit for partition one of the sharers shall not be permitted to proceed with construction which ultimately may turn out to be detrimental to the interest of other sharers. It is also pointed out by learned Senior Advocate that petitioners claimed to have acquired shares of some of the defendants but that is not a matter admitted by respondent No.1. It is contended that in Ext.P3, application those defendants are not made parties. 2. It would appear from Ext.P3, application that other defendants are not made parties therein. It is true that in the plaint respondent No.1 has claimed his share including the place where the house is situated. But the court below ought to have heard the view of other defendants also before disposing of I.A.No.711 of 2010. Without hearing other defendants request of petitioners as prayed for in Ext.P3 cannot be allowed. Learned Munsiff has to consider whether claim of petitioners that they acquired the shares of some of the defendants is correct and if so, considering the claim made by O.P(C).No.367 of 2010 : 3 : respondent No.1 petitioners could be permitted to construct building in the portion claimed by them without affecting the claim of others. For that matter, I.A.No.711 of 2010 has to go back to the court below. I also make it clear that if the pre-trial steps are over it will be open to the learned Munsiff to dispose of the suit itself at the earliest. Resultantly this petition is allowed and Ext.P7, order is set aside. Ext.P3, application (I.A.No.711 of 2010) is remitted to the court below for fresh decision after hearing all the parties concerned in the light of observations made above. I make it clear that if the pre-trial steps are over learned Munsiff may also consider disposing of the suit itself as early as possible. (THOMAS P JOSEPH, JUDGE) Sbna/- Figure “1998” occurring in line 11 of paragraph 1 of the judgment dated 13/12/2010 in OP(C).No.367/2010 is corrected and substituted as “2008” as per order dated 08/03/2011 in I.A.992/2011 in OP(C) 367/2010. Sd/- Registrar (Judicial)