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M.P.Gangadhara Menon vs Thayatt Balan on 28 August, 2008

Kerala High Court
M.P.Gangadhara Menon vs Thayatt Balan on 28 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 6616 of 2008(K)


1. M.P.GANGADHARA MENON, AGED 77 YEARS,
                      ...  Petitioner

                        Vs



1. THAYATT BALAN, AGED 78 YEARS,
                       ...       Respondent

                For Petitioner  :SRI.K.RAMAKUMAR (SR.)

                For Respondent  :SRI.DINESH MATHEW J.MURICKEN

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :28/08/2008

 O R D E R
              M.SASIDHARAN NAMBIAR,J.
            ===========================
            W.P.(C) NO.6616     OF 2008
            ===========================

      Dated this the 28th day of August, 2008

                     JUDGMENT

Plaintiff in O.S.55/1997 on the file of Sub

Court, Manjeri is the petitioner. Defendant is the

respondent. A preliminary decree for partition was

passed. I.A.857/2004 an application for passing a

final decree was filed. A Commissioner was

appointed to divide the property in accordance with

the preliminary decree. Commissioner submitted

report and plan identifying the property and

dividing the same. Respondent filed I.A.1382/2006

an application to set aside the report and plan

submitted by the Commissioner. Under Ext.P3 order,

learned Sub Judge allowed the application and set

aside the report and plan and directed respondent

to deposit Rs.3000/- as batta for appointment of

another Commissioner to execute the work with the

assistance of Taluk Surveyor. This petition is

filed under Article 227 of the Constitution of

W.P.(C)6616/2008 2

India challenging Ext.P3 order.

2. Learned senior counsel appearing for

petitioner and learned counsel appearing for

respondent were heard.

3. Under Ext.P3 order learned Sub Judge found

that the Commissioner has not identified the decree

schedule property in accordance with the

descriptions in the decree and therefore found that

the report and plan cannot be relied on and set

aside the same. The argument of the learned senior

counsel is that the Commissioner can identify the

property on the basis of the decree and even if

there is discrepancy in the boundary, for that

reason, it cannot be said that the property is not

identified. The decree shows that eight items were

available for partition which are to be divided

between the petitioner and respondent. The

Commissioner has to identify the property covered

under the decree and thereafter divide the property

as directed in the preliminary decree. The report

and plan prepared by the Commissioner show that the

W.P.(C)6616/2008 3

properties were not properly identified. It is in

such circumstances, they were set aside and a new

Commissioner was appointed. If Commissioner finds

any difficulty for proper identification of the

properties, Commissioner can seek necessary

directions from the court. Commissioner has first

to identify the eight items of plaint schedule

properties and thereafter divide the property in

accordance with the preliminary decree. The

parties are entitled to file objection when the

Commissioner submits the report and plan in

pursuant to Ext.P3 order.

Writ Petition is disposed of as above.

M.SASIDHARAN NAMBIAR
JUDGE
tpl/-

M.SASIDHARAN NAMBIAR, J.

———————

W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006

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