IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 31836 of 2005(M)
1. MANIKKOTH M.LAKSHMI, D/O.CHATHAN,
... Petitioner
2. MANIKKOTH M.CCHETHAN, S/O.CHOYI,
Vs
1. MANIKKOTH M.SARADA, D/O.CHATHAN,
... Respondent
2. MANIKKOTH M.JANU, D/O.CHATHAN,
For Petitioner :SRI.B.KRISHNAN
For Respondent :SRI.N.L.KRISHNAMOORTHY
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :13/07/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) No. 31836 OF 2005
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Dated this the 13th day of July, 2007
JUDGMENT
It is a very detailed order which has been issued by the learned
Munsiff accepting the first report filed by the advocate commissioner and
preferring the same to the 2nd report filed by the commissioner on the
basis of order of remittance by the court in IA No.109/89, I am not
prepared to say that the process of reasoning of the learned Munsiff is
unsound. But at the same time the fact remains that a decision has
been taken by the learned Munsiff solely on the basis of the affidavits
submitted by parties. The matter required enquiry. The properties
which are mentioned as C & D plots in the second report of the
advocate commissioner are the properties in question. As regards the
D plot, a person by name ‘Nanu’ who is not a party to the suit, lodge
claim on the basis of a particular title document. The commissioner
perused the title document and found that the said property is not
covered by the document produced by Nanu. The court also virtually
accepts the report that Nanu does not have title over the D plot.
Nevertheless the court takes that view that just because Sri.Nanu does
not have title over D plot, it cannot be assumed that D property is
partible. The decision regarding C plot is different. C plot is described
WPC No.31836 of 2005
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by the advocate commissioner in the second report as Peedika sthalam.
Significantly nobody lodged any claim before the commissioner
regarding this peedika sthalam which I gather is the site of shop room.
Nothing is stated in the commissioner’s report or in the impugned order
as to who is having possession and control over the c plot. The
possibility of at least the D plot being a part of the properties available
for partition cannot be ruled out. It was not proper on the part of the
learned Munsiff to have passed the impugned order without any enquiry
regarding the acceptability of the commissioner’s reports. The learned
Munsiff will permit both the parties to cross examine the advocate
commissioner and to adduce whatever other evidence they would like to
adduce to substantiate the claim regarding the partibility of C & D plots.
The court below will implead Sri.Nanu as an additional party in the final
decree application and issue notice to him also before fresh orders are
passed.
PIUS C. KURIAKOSE, JUDGE
btt
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