IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 WP(C).No. 22209 of 2008(R) -------------------------- OS.152/1996 of MUNSIF COURT, KANJIRAPPALLY .................... PETITIONER: ------------ GOPALAKRISHNAN, S/O.KRISHNAN, KURUVAMPLAVIL, KARICKATTOOR KARA MANIMALA VILLAGE (3RD RESPONDENT). BY ADV. SRI.LIJI.J.VADAKEDOM RESPONDENTS: RESPONDENTS 1 TO 15 & PETITIONERS 2 TO 6 IN THE IA ----------------- 1. RAMACHANDRAN, S/O.KRISHNAN, KURUMPLAVIL KARICKATTOOR KARA, MANIMALA VILLAGE, (PETITIONER IN O.P) 2. DAMODARAN, S/O.KRISHNAN, KURUVAMPLAVIL, KARICKATTOOR KARA, MANIMALA VILLAGE (DIED) (IST RESPONDENT) 3. RAJAMMA BHASKARAN, W/O.BHASKARAN, KAKKATTU HOUSE, MUVATHATTA KARA, KARTHIKAPURAM VILLAGE, ALAKKOTTU TALUK, KANNOOR DISTRICT (5TH RESPONDENT). 4. SARSAMMA PRABHAKARAN, NELLIKKASSERRIL, KOCHUKARINTHIRI KARA, ELAPPARA VILLAGE, (6TH RESPONDENT). 5. PARVATHY, W/O.KESAVAN, KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE (8TH RESPONDENT). 6. K.K.VIJAYAN, S/O.KESAVAN, KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE (8TH RESPONDENT 7. SANTHAMMA, W/O.THANKAPPAN, KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE (11TH RESPONDENT) 8. SHIJI, D/O.THANKAPPAN KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE (12TH RESPONDENT) W.P.(C) No.22209/2008 : 2 : 9. SHEEBA SISTER OF THANKAPPAN, KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE, (13TH RESPONDENT). 10. SHIJU, BROTHER OF DO., KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE, (15TH RESPDT). 11. JANAKI, W/O.DAMODARAN, KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE, (16TH RESPT). 12. K.RAJASEKHARAN, S/O.DAMODARAN, KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE, (17TH RESPONDENT). 13. SOBHA @ VALSALAKUMARI, D/O.DAMODARAN, KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE, (18TH RESPONDENT). 14. GEETH, D/O.DAMODARAN, KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE (19TH RESPT). 15. GIRIJA, W/O.SANTHOSH, KAKKATTU HOUSE, THAMPALAKKADU KARA, KANJIRAPPALLY VILLAGE. (20TH RESPONDENT). 16. VISWANATHAN, BROTHER OF GOPALAKRISHNAN KURUVAMPLAVIL, KARICKATTOOR KARA, MANIMALA VILLAGE, (2ND RESPONDENT) 17. K.K.MURALEEDHARAN KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE WORKING AS TEACHER IN U.P.SCHOOL, KOLATHOOR, KASARAGOD DT. (4TH RESPONDENT) 18. VIJAYAMMA MOHANAN, PULLATTU HOUSE, VELLARAMKUNNU KARA, KUMALI VILLAGE. (7TH RESPONDENT) 19. K.K.SHAJI, S/O.KESAVAN, KURUVAMPLAVIL, KARICKATTOOR KARA, MANIMALA VILLAGE (10TH RESPDT). 20. SHIBU, S/O.THANKAPPAN, KURUVAMPLAVIL HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE. (14TH RESPDT). BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.22209 of 2008 ------------------------------- Dated this the 23rd July, 2008. J U D G M E N T Petitioner is the second defendant in O.S.No.152 of 1996, on the file of Munsiff Court, Kanjirappally. A preliminary decree for partition was passed on 8.4.1997. Final decree application was filed for passing a final decree in accordance with the preliminary decree. A commission was appointed to divide the properties. Commissioner submitted Ext.P5 report, plan and schedule. Petitioner filed I.A.No.1198 of 2007, an application to remit the report to the Commissioner. It was heard along with I.A.No.1174 of 2007 for the same relief filed by first defendant. Under Ext.P8 order, learned Munsiff dismissed both the petitions. This petition is filed under Article 227 of the constitution of India challenging Ext.P8 order. 2. The learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel for petitioner is that as per the preliminary decree, though properties were directed to be divided and allotted to different sharers, there is a specific direction W.P.(C) No.22209 of 2008 2 that as far as possible and feasible, respective possession of the parties shall not be disturbed. The learned counsel pointed out that a commission was taken out before passing of the preliminary decree and the Commissioner has submitted a report and sketch showing the respective residence of the parties and the properties in their possession and this aspect was not taken into consideration by the Commissioner while dividing the properties and in such circumstances, learned Munsiff should have remitted the report back to the Commissioner. Learned counsel also submitted that allotment made by the Commissioner was also disputed, as also the pathway provided by the Commissioner, and in such circumstances, report should have been remitted. 4. On hearing the learned counsel and on going through Ext.P8 order, I do not find any illegality or irregularity in the impugned order warranting interference. Ext.P8 itself shows that objections raised by the petitioner will be considered at the time of passing the final decree. It also provides that commissioner could be examined. True, preliminary decree provides that properties could also be allotted as far as possible and feasible, without causing disturbance to the possession of the properties by the respective W.P.(C) No.22209 of 2008 3 sharers. The question of allotment of shares is to be decided by the court and not by the Commissioner. In such circumstances, petitioner is entitled to raise all his objections before the court below, while considering the final decree application. If at that stage court finds that report is to be remitted, court can remit the report to file a further report. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.