IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3974 of 2009(W)
1. KOSHY VARGHESE, S/O.ABRAHAM VARGHESE,
... Petitioner
Vs
1. KUNJANNAMA VARGHESE,
... Respondent
2. ABRAHAM VARGHESE,
3. P.V.CHERIAN, ADVOCATE, PERUMPATIL
4. SOUMYA P.S., PANTHAPLAVIL HOUSE,
5. SANTOSH, S/O.SASIDHARAN,
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent :SRI.S.MOHANAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :11/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.3974 OF 2009
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Dated this the 11th day of August 2009
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JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) Call for the records resulting in
Ext.P5 order, set aside the same and allow Ext.P2
application.
ii) Pass such other orders, interlocutory
or otherwise, which are deemed fit and proper in
the interest of justice.
iii) Allow this writ petition with costs.
W.P.(C).No.3974 OF 2009 2
2. Petitioner is the plaintiff in O.S
No.38 of 2008 on the file of the Sub Court,
Chengannur and the respondents are the defendants.
Suit is one for partition and injunction, or in the
alternative for recovery of money from the
defendants. The case of plaintiff is that on the
basis of the power of attorney executed by him in
favour of first defendant, the mother along with
the second and third defendants that is, his
brothers executed sale deeds in favour of the 4th
and 5th defendants. Conveyance of the property so
made in favour of the 4th and 5th defendants is
impeached by the plaintiff raising various
allegations set out in the plaint which need not be
set outfor the purpose of disposal of this
petition. Among the reliefs claimed in the suit
the main relief is partition of his share over the
suit property ignoring the sale deeds executed in
favour of the 4th and 5th defendants treating them as
null and void and not binding on him. In the
alternative petitioner / plaintiff sought for
W.P.(C).No.3974 OF 2009 3
money, quantifying the sum due as his share in the
property in case a partition decree cannot be
granted. To substantiate the claim for the
quantified sum of money which was set up as an
alternative relief in the suit and to ascertain
and determine the valuation of the property, the
petitioner/ plaintiff moved for appointment of an
advocate commissioner which was objected to by the
respondents / defendants. The learned Sub Judge
after hearing both sides dismissed that application
by Ext.P5 order. Propriety and correctness of that
order is impeached in the writ petition invoking
the supervisory jurisdiction vested with this court
under Article 227 of the Constitution of India.
3. I heard the learned counsel on both
sides. Having regard to the submissions made and
taking note of the facts and circumstances
presented with reference to Ext.P5 order, I find,
in the nature of the main relief claimed in the
suit for partition and division of the share of the
W.P.(C).No.3974 OF 2009 4
plaintiff in the suit property, the question as to
whether he is entitled to the alternative relief
will arise only if he has partitiable right and
that need be gone into only in the final decree
proceedings. In such a proceeding alone the
appointment of a commission to ascertain his share
value will arise for consideration. So much so, I
do not find any impropriety or illegality in Ext.P5
order passed by the court below. But I make it
clear that in case a plaintiff is found to entitled
to a preliminary decree for partition as urged by
him, then the observations made under Ext.P5 order
will not stand in his way in applying for a
commission in the final decree proceedings.
Subject to the above observations the writ petition
is closed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv