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
