IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 WP(C).No. 32837 of 2007(H) -------------------------- OS.96/2001 OF MUNSIFF - MAGISTRATE COURT, PERINTHALMANNA .................... PETITIONER: ---------- K.KUNHI MOHAMMED, S/O. VEERANKUTTY, ANGADIPURAM AMSOM DESOM, PERINTHALMANNA TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.KODOTH PUSHPARAJAN SRI.K. JAYESH MOHANKUMAR RESPONDENTS: ----------- 1. K.P.MARAKKAR, S/O. VEERANKUTTY, ANGADIPURAM AMSOM, PARIYAPURAM DESOM, PERINTHALMANNA TALUK. 2. AYISHAKUTTY, W/O. ANANGODAN HAMZA HAJI, ANGADIPURAM AMSOM, PARIYAPURAM DESOM. 3. KADEEJA, W/O. POTHUKATTIL CHEKKUNNI, ANGADIPURAM AMSOM, PARIYAPURAM DESOM. 4. BEEVI, W/O. UNNEEN, H.R., ANGADIPURAM AMSOM, PARIYAPURAM DESOM. 5. LUK MANUL HAKEEM HAJI, S/O. VEERANKUTTY, KULATHUR AMSOM DESOM. 6. PATHUMMAKUTTY, W/O. KOLLIYAN MOIDEENKUTTY, ANGADIPURAM AMSOM, PARIYAPURAM DESOM. 7. AYISHAKUTTY UMMA, W/O. VEERANKUTTY, ANGADIPURAM AMSOM, PARIYAPURAM DESOM. BY ADV. SRI.K.M.SATHYANATHA MENON FOR R1 TO 4 & 6 SRI.DEVIDAS.V.K FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)32837/07 APPENDIX PETITIONERS’ EXHIBITS:- EXT.P1:- TRUE COPY OF THE PRELIMINARY DECREE IN O.S.96/2001 DT. 27.1.2004 ON THE FILE OF THE MUNSIFF MAGISTRATE’S COURT, PERINTHALMANNA. EXT.P2:- TRUE COPY OF THE AFFIDAVIT ACCOMPANYING I.A.740/04 IN O.S. 96/01 AND THE APPLICATION ALONG WITH THE DECREE SCHEDULE DT. 7.8.2004 EXT.P3:- TRUE COPY OF THE COMMISSIONER’S REPORT EXT.P4:- TRUE COPY OF THE AFFIDAVIT ACCOMPANYING I.A. 811/06 IN O.S.96/2001 DT.10.10.2006 EXT.P5:- TRUE COPY OF THE ORDER DT. 5.12.2006 IN I.A. 811/2006 IN FINAL DECREE I.A. 740/2004 IN O.S. 96/2001 ON THE FILE OF THE MUNSIFF -MAGISTRATE’S COURT, PERINTHALMANNA. EXT.P6:- TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER DT.20.2.2007 IN I.A. 811/06 IN I.A. 740/04 IN O.S. 96/2001 EXT.P7:- TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DT.23.6.2007 IN I.A. 740/04 IN O.S. 96/01 EXT.P8:- TRUE COPY OF THE AFFIDAVIT ACCOMPANYING I.A.274/07 IN O.S. 96/01 DT. 30.3.2007 EXT.P9:- TRUE COPY OF THE ORDER DT. 8.10.2007 IN I.A. 274/07 IN I.A.740/04 IN O.S. 96/01 ON THE FILE OF THE MUNSIFF-MAGISTRATE COURT, PERINTHALMANNA. RESPONDENT’S EXHIBITS:- NIL Okb/- //TRUE COPY// P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO.32837 OF 2007 ------------------------------------------ Dated this the 21st day of July, 2008 JUDGMENT Third defendant in O.S. 96 of 2001 on the file of Munsiff Court, Perinthalmanna is the petitioner. This petition is filed under Article 227 of Constitution of India to quash Ext.P9 order passed by the Munsiff in I.A. 274 of 2007. A preliminary decree was passed in O.S. 96 of 2001 on 27.1.2004. As per the preliminary decree, plaint schedule properties except the property covered under Ext.B2 assignment deed executed by Veerankutty in favour of Kunhi Mohammed on 2.2.1972 were found to be available for partition and the properties are to be divided into 80 equal shares. 7 such shares are to be allotted to defendants 1, 2 to 4 and 6. 14 such shares each are to be allotted to plaintiff, defendants 3 and 5 separately. Seventh defendant is to be allotted 10 such shares. I.A. 740 of 2004 was filed for passing a final decree. A commission was appointed to divide the properties in accordance with the preliminary decree. The commissioner submitted Ext.P3 report dividing the properties, along with a plan. Petitioner filed Ext.P4 petition to WPC32837/07 2 remit the report back to the commissioner contending that properties were not properly identified or divided. Under Ext.P5 order, learned Munsiff remitted the report. Commissioner thereafter submitted Ext.P6 additional report. Petitioner filed Ext.P7 objection and P8 application (I.A.740 of 2004) to appoint a Taluk Surveyor and to direct the commissioner to identify the properties and submit a further report. Under Ext.P9 order, the petition was disposed. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned Counsel appearing for petitioner and respondents were heard. 3. As per the preliminary decree, three items of properties are available for partition, excluding the property covered under Ext.B2 sale deed. Item No.1 is having an extent of 1 acre 15 cents, item No.2, 26 cents and item No.3, 1 acre 54 cents. Under Ext.P3 report, commissioner identified item No.1 as having an extent of 44.22 cents and item No.2 a plot having 80.50 cents and item No.3 excluding Ext.B2 property having an extent of 1 acre 12 cents. It was reiterated in Ext.P6 additional report also. 4. On hearing the learned counsel and going through WPC32837/07 3 Ext. P2 decree, P3 and P6 reports, and P7 objection, it is clear that commissioner has not properly identified and divided the properties as provided under the preliminary decree. True, the properties cannot be had identified or divided with reference to the extent of properties shown in the decree schedule or by survey number alone and properties are to be identified and located with reference to the boundaries shown in the decree. Though 1 acre 15 cents is shown as item No.1 under the decree, commissioner in Ext.P6 reported that a portion of that property was sold by Veerankutty in favour of Hamza and only the balance is available. Even if that be the case, commissioner should have identified the entire property and demarcated the property covered under the sale deed executed by father Veerankutty and fixed the balance property which is to be divided as item No.1 under the preliminary decree. Similar is the case with item No.2 and 3. As the commissioner has not properly identified and demarcated the properties, learned Munsiff should have directed the commissioner to identify the properties with reference to the preliminary decree and should have granted assistance of Taluk Surveyor and directed commissioner to file a further report. In such circumstances, WPC32837/07 4 Ext.P9 order is quashed. Learned Munsiff is directed to appoint Taluk Surveyor to assist the commissioner with direction to identify the properties as provided under the preliminary decree and taking into consideration the objection raised by the petitioner in Ext.P7 objection. It is made clear that if any portion of the properties is to be excluded as alienated, that portion has to be separately shown in the plan. Petitioner shall meet the expenses. Munsiff to instruct the commissioner to expedite the work. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-