IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15512 of 2010(O)
1. RAMDAS, S/O. NARAYANAN NAMBOODIRI,
... Petitioner
Vs
1. KARTHIYANI AMMA, D/O.VADAKKE THATTAM
... Respondent
2. JANAKI AMMA, W/O.VADAKKE
3. BEENA,D/O. JANAKY AMMA, VADAKKE
4. PRIYA,D/O. JANAKY AMMA, VADAKKE
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/05/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.15512 of 2010
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Dated this the 20th day of May, 2010.
JUDGMENT
Defendant No.4 in O.S.No.335 of 2005 (respondent No.4 in
I.A.No.1084 of 2008) is the petitioner before me. Respondent No.1/plaintiff filed
the suit for partition and separate possession of her share against the petitioner
and respondent Nos. 2 to 4/defendant No.1 to 3. Petitioner/defendant No.4 is
the assignee of 9.263 cents out of the 12.500 cents referred to in the plaint
schedule from respondent Nos.2 to 4. A preliminary decree was passed allotting
one fourth share to respondent No.1/plaintiff. That was followed by proceedings
for final decree on I.A.No.1084 of 2008 filed by respondent No.1/plaintiff. In the
course of final decree proceedings an Advocate Commissioner was appointed to
measure and divide the properties. Advocate Commissioner and the Surveyor
did their work and submitted Exts.P3 and P4, reports and Ext.P4(a), plan.
Petitioner/defendant No.4 was not agreeable to the report and plan since
according to the Advocate Commissioner and Surveyor though the total extent
stated in the preliminary decree schedule and the documents relied on by the
parties is 12.5 cents in Survey No.774, on measurement the actual extent was
found to be only 9.660 cents. Based on that plot A measuring 2.415 cents was
allotted to the share of respondent No.1/plaintiff and the remaining 7.245 cents
(plot B) was allotted to the share of petitioner/defendant No.4 being the
assignee from respondent Nos.2 to 4. Petitioner objected to the measurement
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and extent reported by the Advocate Commissioner and Surveyor. He filed
Ext.P6, application to remit the reports and plan. That application was dismissed
as per Ext.P8, order which is under challenge in this proceeding. Learned
counsel would contend that measurement made by the Taluk Surveyor is not
proper. Property on the west of suit property in the possession of respondent
No.1/plaintiff takes in a portion of the decree schedule property which was not
taken into account.
2. Petitioner has not adduced any evidence in support of his
contention. It is seen from Exts.P3 and P4, reports submitted by the Advocate
Commissioner and Surveyor and Ext.P4(a), plan that the total extent of land
available in Survey No.774 which alone is described in decree schedule is only
9.660 cents. On the east of the said property is the railway property and on the
north and south it is property in the possession of third parties. On the west it is
property in the possession of respondent No.1/plaintiff but, that property was
found on the survey to be comprised in Survey No.344. Ext.P4(a), plan shows
that the survey boundary line between Survey Nos.774 and 344 has been
specifically identified and marked. There is no case for petitioner or any of the
contesting respondents that the property as per documents of title relied on by
them took in any portion of the property comprised in Survey No.344. In that
situation learned Munsiff is correct in overruling the objection raised by petitioner
and dismissing Ext.P6, application. I do not find reason to interfere.
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3. Though the learned counsel for petitioner contended that the
allotment of plots between petitioner and respondent No.1 is not proper, nor
convenient for their use, that is not a matter to be considered in this Writ
Petition. It is open to the petitioner to raise that contention in the final decree
proceedings if objection in that line has been raised.
Writ Petition is dismissed with the above observation.
THOMAS P.JOSEPH,
Judge.
cks