IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 29708 of 2003(J) ---------------------------------------- PETITIONER(S): ------------------------ A.SURESAN, S/O.C.GOPALAKRISHNA MENON, ALATH HOUSE, ANTHIKKAD, THRISSUR TALUK AND DISTRICT. BY ADV. SMT.T.D.RAJALAKSHMI RESPONDENT(S): --------------------------- 1. C.KAMALAM, W/O.LATE.A.GOPINATHA MENON, CHANGARAMKULATH HOUSE, POST VALAPAD. CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. C.VASANTHAKUMAR, S/O.SMT.C.KAMALAM, CHANGARAMKULATH HOUSE, POST VALAPPAD, CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. C.SREEKUMAR, S/O.SMT.C.KAMALAM, CHANGARAMKULATH HOUSE, POST VALAPPAD. 4. C.JYOTHILAKSHMI, D/O.SMT.C.KAMALAM, CHANGARAMKULATH HOUSE, POST VALAPPAD. 5. A.VIDYASAGAR, S/O.ALATH KARTHYAYANI AMMA, GREEN COTTAGE, THRIKKUMARAMKUDAM AYYANTHOLE POST, THRISSUR DISTRICT. 6. A.UNNIKRISHNAN, S/O.ALATH KARTHIYAYANI AMMA, PARISHARAM, 40, PALI HILL, NARGIS DUTT ROAD, BADRA (WEST) MUMBAI - 400 080. 7. A.RAVEENDRA NATH, S/O.ALATH KARTHIYAYNI AMMA, GOPIKRISHNA, POST POOMKUNNAM, THRISSUR DISTRICT. R1,2,4,6&7 BY ADV. MR.S.P.CHALY R5 BY ADV. MR.K.P.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29708/2003 J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PRELIMINARY DECREE PASSED IN O.S.NO.555/93 DTD. 20/01/1998 OF SUB COURT, THRISSUR. EXT.P2; COPY OF INTERIM REPORT FILED BY THE ADVOCATE COMMISSIONER IN O.S.NO.555/93 OF SUB COURT,THRISSUR DTD. 22/05/2003. EXT.P3: I.A.NO.3204/2003 IN O.S.555/93 DD.20/06/2003 FILED BY THE PETITIONER. EXT.P4: OBJECTION FILED BY THE 7TH RESPONDENT IN I.A.5576/2000 IN O.S.NO.555/93 DTD. 5/06/2003. EXT.P5: COPY OF ORDER I.A.NO.5576/2000 IN O.S.555/93 OF SUB COURT, THRISSUR DTD. 8/08/2003. EXT.P6: COPY OF ORDER IN I.A.3204/2003 IN OS.555/93 OF SUB COURT, THRISSUR DTD. 8/08/2003. EXT.P7: COPY OF THE PLAN PREPARED AND PRODUCED BEFORE THE COURT IN O.S.555/93 OF SUB COURT, THRISSUR. EXT.P8: COPY OF THE PLAN PREPARED AND PRODUCED BY THE COMMISSIONER IN OS.555/93 OF SUB COURT, THRISSUR. EXT.P9: COPY OF THE SALE CERTIFICATE ISSUED TO THE PETITIONER ON 17/07/1982 ALONG WITH CERTIFICATE OF REMITTANCE OF STAMP DUTY. EXT.P10: COPY OF JUDGMENT IN O.S.555/93 OF SUB COURT, THRISSUR DTD. 20/01/98. EXT.P11: COPY OF ASSIGNMENT DEED NO.1794/1958 OF SRO, THRISSUR DTD. 23/04/1958. EXT.P12: COPY OF ASSIGNMENT DEED NO.2087/1958 OF SRO, THRISSUR DTD. 30/04/1958. RESPONDENT'S EXHIBITS: EXT.R5(A): COPY OF THE SALE CERTIFICATE ISSUED TO THE 5TH RESPONDENT ON 07/07/1978 BY THE REVENUE AUTHORITIES. EXT.R5(B): COPY OF THE SALE PROCLAMATION. EXT.R5(C): COPY OF THE PLAINT FILED BY THIS RESPONDENT IN O.S.NO. 586/2003 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, THRISSUR. /TRUE COPY/ Kss P.A.TO JUDGE HARUN-UL-RASHID, J. ---------------------------------------- W.P.(C) No.29708 of 2003 ---------------------------------------- Dated this the 25th day of March, 2009 JUDGMENT Ext.P5 proceedings and P6 order passed by the Sub Court ,Thrissur are under challenge. The plaint schedule property in O.S. 555/1993 is 32 Cents and the building situated therein in Survey No 1784/P of poonkunnam village. A preliminary decree was passed allotting 1/5th share each to the plaintiff and defendants 1 to 4. The petitioner herein is the plaintiff in the said suit and the respondents are the defendants. In the final decree proceedings the Court below deputed a Commissioner for measurement and division of the decree schedule property. The Commissioner reported that there is no visible boundary on the northern side of the decree schedule property. Admittedly the northern property belongs to the defendants and the said property and the decree schedule property are lying contiguously. The division has to be made is in accordance with the shares as declared in the preliminary decree. The court below done so by deputing a Commissioner. In the Commissioner's report it is stated that there is an excess land of 5 Cents in survey No. 1784/P. The petitioner filed I.A. No.3204/2003 for dividing the same. In fact the decree schedule property is 32 Cents . So the trial court rightly held that only 32 Cents are liable to be partitioned as per the preliminary decree and dismissed I.A. No. 3204/2003 filed by the plaintiff . In this W.P.(C) No. 29708 of 2003 -2- context Ext.P5 proceedings passed by the learned Sub judge to effect partition of preliminary decree schedule property of 32 Cents as per the preliminary decree excluding the excess extent found on the northern side is sustainable in law. I find no reason to interfere with Ext.P5 proceedings and Ext.P6 order. This writ petition is dismissed (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- W.P.(C) No.29708 of 2003 ---------------------------- JUDGMENT 25th March, 2009