IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10050 of 2008(U)
1. O.R.RAMAKRISHNAN, AGED 54,
... Petitioner
Vs
1. MALATHY, AGED 57,
... Respondent
2. GEETHA, AGED 47,
3. BHARGAVI, AGED 67,
For Petitioner :SMT.LATHA PRABHAKARAN
For Respondent :SRI.V.BINOY RAM
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/07/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C) NO.10050 OF 2008
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Dated this the 23rd day of July, 2008
JUDGMENT
Petitioner is the second defendant in
O.S.852/2001 on the file of II Additional Munsiff
Court, Thrissur. A preliminary decree was passed
directing division of item No.1 of the plaint
schedule property into three shares and allotment
of 2 shares to the plaintiff and one share to the
defendant. I.A.5547/2004 was filed for passing a
final decree in accordance with the preliminary
decree. A Commission was appointed and the
Commissioner submitted a report and plan.
Petitioner filed an application to set aside the
report. Under Ext.P7 order the petition was
dismissed. This petition is filed under Article 227
of the Constitution of India challenging Ext.P7
order.
2. Learned counsel appearing for petitioner
and contesting respondents were heard.
W.P.(C)10050/2008 2
3. The argument of learned counsel appearing
for petitioner is that as per the preliminary
decree as far as possible the northern portion is
to be allotted to the share of the petitioner and
as per the report and plan submitted by the
Commissioner the northern portion was not allotted
to the petitioner and the only reason shown by the
Commissioner is that a portion protruding into the
northern portion is to be demolished. Learned
counsel argued that petitioner had expressed his
willingness to demolish that structure in which
event the northern plot could be allotted to the
petitioner. Learned counsel also pointed out that
in Ext.P3 plan Commissioner has shown the east west
measurement as 37.80 metres in the first plan as
shown by the Village Officer but in the second plan
the east west measurement was shown as 36.70
metres. In such circumstances it was argued that
learned Munsiff was not justified in dismissing the
application.
4. Learned counsel appearing for respondents
W.P.(C)10050/2008 3
argued that either at the time of inspection of the
Commissioner or earlier petitioner did not express
willingness to demolish the protruding structure
and in such circumstances, petitioner is not
justified in challenging the report on that basis.
5. On hearing the learned counsel for both
sides and on going through Ext.P7 order and the
defect pointed out by the petitioner, in the
interest of justice, learned Munsiff should have
remitted the report back to the Commissioner to
file a further report considering the objection
raised by the petitioner with regard to the
division as well as the measurement. The question
of allotment of the property is to be decided by
the court. Commissioner shall find out whether
the northern portion could be separated and
allotted to the share of the petitioner as provided
in the preliminary decree.
Writ Petition is allowed. Learned Munsiff is
directed to remit the report to the Commissioner to
file a further report in the light of the objection
W.P.(C)10050/2008 4
raised by petitioner.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006