IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 WP(C).No. 36047 of 2008(N) -------------------------- I.A. 681/07 IN OS.142/1989 of MUNSIFF COURT,PATTAMBI .................... PETITIONER: --------------- KUMARAN, S/O.LATE KRISHNAN, “ROHINI”, MANJALUNGAL, P.O.,KALLADIPPATTA, PATTAMBI, PALAKKAD DISTRICT. PIN-679313. BY ADV. MR. SANTHEEP ANKARATH MR. V.C.MADHAVANKUTTY RESPONDENTS: --------------- 1. KUNHAN, S/O.KRISHNAN, R/AT.POOKKATTU KUNNINMEL, PERUMUDIYUR AMSOM AND DESOM, OTTAPALAM TALUK. 2. KOPPU, S/O.CHEMBOTTUTHODIYIL KRISHNAN, PERUMUDIYUR AMSOM AND DESOM, OTTAPALAM TALUK. 3. CHANDRASEKHARAN, S/O.DO. DO. DO. DO. 4. VASUDEVAN.C., S/O. DO. DO. ABAN CO.OP.HSG SOCIETY LTD. VANDAN B WING, FLAT NO.45, DHOKALI THANE(W), PIN-400 607. 5. PRABHAKARAN.C., P.O.BOX NO.8091, DUBAI, U.A.E. 6. SAROJINI, W/O.VELAYUDHAN, THECHERI VEETTIL, PAIKULAM. 7. SARADA W/O. BALAKRISHNAN, CHEMBATTUTHODI HOUSE, PERUMUDIYUR, OTTAPALAM TALUK. 8. SAHADEVAN. P. S/O. KRISHNAN (LATE) C/O. PRABHAKARAN.C., P.O.BOX NO.8091, DUBAI, U.A.E. 9. MANJULA D/O. KRISHNAN, PALLIYILTHODI HOUSE, PULAMANTHOLE, MALAPPURAM DISTRICT. 10. RAJEEVAN S/O. KRISHNAN, PALLIYILTHODI HOUSE, PULAMANTHOLE, MALAPPURAM DISTRICT. 11. PREETHA W/O. BALACHANDRAN, PALLIYILTHODI HOUSE, PULAMANTHOLE, MALAPPURAM DISTRICT. 12. PRAJEESH S/O. KRISHNAN, PALLIYILTHODI HOUSE, PULAMANTHOLE, MALAPPURAM DISTRICT. 13. SMITHA D/O. KRISHNAN, PALLIYILTHODI HOUSE, PULAMANTHOLE, MALAPPURAM DISTRICT. ADV.MR. K.P.SUDHEER FOR R1, 4 TO 13 MR. G.SREEKUMAR (CHELUR) FOR R3 MS. PREETHY KARUNAKARAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).36047/2008 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF THE REPORT AND SKETCH OF THE ADVOCATE OF THE ADVOCATE COMMISSIONER AND DATED 5.2.2007 IN O.S. NO.142/1989 ON THE FILE OF MUNSIFF-MAGISTRATE COURT, PATTAMBI. EXT.P2:- TRUE COPY OF ORDER DATED 18.6.2007 IN I.A.NO.156/2007 IN I.A.168/2004 IN O.S.142/1989 PASSED BY MUNSIFF-MAGISTRATE COURT, PATTAMBI. EXT.P3:- TRUE COPY OF APPLICATION DATED 14.8.2007 AND NUMBERED AS I.A.681/2007 IN O.S.142/1989 FILED BEFORE MUNSIFF-MAGISTRATE COURT, PATTAMBI. EXT.P4:- TRUE COPY OF ORDER DATED 11.11.2008 IN I.A.681/2007 IN O.S.142/1989 PASSED BY MUNSIFF-MAGISTRATE COURT, PATTAMBI. RESPONDENT'S EXHIBITS:- NIL Okb - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- W.P.(C).No. 36047 OF 2008 -------------------------------------------------- Dated this the 5th day of March, 2009 J U D G M E N T Petitioner is the third defendant and the third petitioner in I.A.168 of 2004, an application for passing a final decree in accordance with the preliminary decree in O.S.142 of 1989 on the file of Munsiff Court, Pattambi. As per the preliminary decree, plaint schedule property is to be divided into seven shares and plaintiff is to be allotted one share. In the final decree application, a commission was appointed to divide the property in accordance with the preliminary decree. The commissioner submitted a report to the effect that it is not possible to divide the property into seven equal shares. Fourth defendant filed I.A. 156 of 2007 for a direction to auction the property in between the sharers. As per Ext.P2 order, learned Munsiff directed the commissioner to value the property so that it could be auctioned between the sharers for a better price. Ext.P3, I.A.681 of 2007 was filed by respondents 2 and 4 to 13 for a direction to the commissioner to allot their shares together WP(C).36047/2008-N 2 so that only 1/7th share due to third respondent, the remaining share, need alone be separated. It was contended that in that case, the property could be divided in between the sharers. Under Ext.P4 order, the petition was dismissed holding that commissioner has reported that it is not possible to divide the property. This petition is filed under Article 227 of Constitution of India challenging Ext.P4 order. 2. Learned counsel appearing for petitioner and learned counsel appearing for respondents were heard. 3. As per the preliminary decree the properties are to be divided into seven equal shares and one such share is to be allotted to the plaintiff. The prayer now raised by respondents 2 and 4 to 13 is that only the 1/7th share due to the third respondent need be separated and the remaining shares could be allotted as one block as the shares of the remaining sharers and if so the property could be divided. 4. Under Ext.P2 order, learned Munsiff had already directed the commissioner to value the property. In such circumstances, a direction could be issued to the commissioner to find out the feasibility of separating 1/7th share due to third WP(C).36047/2008-N 3 respondent so that an auction in between the sharers could be avoided as the remaining 6/7 shares could be retained as one plot. The question whether the property could be so divided equitably is a matter to be decided by the Munsiff on the materials before the Court. In such circumstances the writ petition is allowed. Munsiff, Pattambi is directed to direct the commissioner, who was appointed to divide the property, to report whether it is possible to divide the property equitably and fairly by separating 1/7th share due to the third respondent alone, if the other sharers are prepared for the same. The question whether such division is possible or not is to be decided by the Munsiff. M. SASIDHARAN NAMBIAR, JUDGE okb