IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 22744 of 2009(O) --------------------------------------- OS.5/2007 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONER(S): ---------------------- JOY, AGED 45 YEARS,S/O.DANIEL,ARACKAL HOUSE,KRARIYELI KARA,KOMBANADU VILLAGE, KUNNATHUNADU TALUK. BY ADV. MR.RAJESH VIJAYAN RESPONDENT(S): ------------------------ 1. RAJU,AGED 50 YEARS,S/O.DANIEL,ARACKAL HOUSE,KRARIYELI KARA,KOMBANADU VILLAGE, KUNNATHUNADU TALUK. 2. MATHEW,AGED 48 YEARS,S/O.DANIEL, ARACKAL HOUSE,KRARIYELI KARA,KOMBANADU VILLAGE, KUNNATHUNADU TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/08/2009, ALONG WITH WPC.22754 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).Nos.22744 AND 22754 OF 2009 ----------------------------------- Dated this the 14th day of August 2009 ------------------------------------- JUDGMENT These writ petitions have been filed by the same petitioner, who had instituted two suits for partition which are now pending for trial before the Munsiff Court, Perumbavoor. The respondents in the petition are the common defendants in both the suits. The respondents have raised a contention in their written statement in the respective suits that the property scheduled are not available for partition. Petitioner thereupon filed separate applications in the two suits for appointment of a commission to identify and determine the property. A work memo was also filed by the defendants. But they did not take any further steps. Petitioner / plaintiff applied for W.P.(C).Nos.22744 Page numbers AND 22754 OF 2009 getting a survey plan of the property from the Taluk Office and later from the District Survey Office as well. He got a reply that the survey plan in respect of the property is not available. The court below dismissed the commission application for the reason that the plan was not produced. Separate orders had been passed dismissing the commission applications in the respective suits. Those orders are challenged in these two writ petitions invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to the orders impugned in the respective writ petitions, I find no notice to the respondents is necessary and it is dispensed W.P.(C).Nos.22744 Page numbers AND 22754 OF 2009 with. The learned counsel for the petitioner submitted that identification of the suit property in respect of which partition is claimed by the plaintiff is necessary to meet the ends of justice. I do not agree. Though the defendants have raised a contention disputing that the property is not available for partition, at this stage, before passing of the preliminary decree in a suit for partition, the question to be considered is whether the party is seeking partition has a legal right to seek such partition over the suit property. Availability of the property for partition, what is its extent, its identity etc. are all matters to be considered in the final decree proceedings if at all a preliminary decree is passed in favour of the parties to the suit either it be the plaintiff or the defendant. Plaintiff had moved commission application on the basis of the contention raised by the defendant and it was dismissed for W.P.(C).Nos.22744 Page numbers AND 22754 OF 2009 nonproduction of the plan has no impact, if, in fact, he can show that in respect of the property scheduled he has a legal right to claim partition. So much so, I find no reason to interfere with the orders impugned in these petitions. Further more it is submitted by the learned counsel for the petitioner that the two suits have been already been listed for trial. That also is a circumstance to be taken note by this court to consider whether the petitions are to be entertained where the orders challenged are seen passed in December 2008. Taking note of the facts and circumstances as indicated above, I find no relief can be granted to the petitioners in the writ petitions as canvassed for, and the petitions are closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv