High Court of Kerala dismissed a writ petition under Article 227 challenging a Munsiff Court order setting aside a commissioner's report in a partition suit. The Court held that property availability issues are for the final decree, unless existence is disputed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2016/6TH ASWINA, 1938
OP(C).No. 2360 of 2016 (O)
--------------------------IA.NO.1211/2016 IN OS.NO.252/2008 OF MUNSIFF COURT, ALATHUR
PETITIONER :
KUTTYKRISHNAN, AGED 73 YEARS, S/O. VELU, CHETTIYARKAD, CHERAMANGALAM AMSOM DESOM, ALATHUR TALUK, PIN- 678 703.
BY ADVS.SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR
RESPONDENT(S):
1. RAMACHANDRAN (DIED), S/O. VELU, CHETTIYARKAD, CHERAMANGALAM AMSOM DESOM, ALATHUR TALUK. PIN- 678 703.
2. PRABHAKARAN, S/O. VELU, CHETTIYARKAD, CHERAMANGALAM AMSOM DESOM, ALATHUR TALUK, PIN- 678 703.
3. SETHUMADHAVAN, S/O. VELU, CHETTIYARKAD, CHERAMANGALAM AMSOM DESOM,
ALATHUR TALUK, PIN- 678 703.
4. DEVAKI, W/O. RAMACHANDRAN, CHETTIYARKAD, CHERAMANGALAM AMSOM DESOM,
ALATHUR TALUK, PIN- 678 703.
5. VENUGOPALAN, S/O. RAMACHANDRAN, CHETTIYARKAD, CHERAMANGALAM AMSOM DESOM, ALATHUR TALUK, PIN- 678 703.
6. SURESH, S/O. RAMACHANDRAN, CHETTIYARKAD, CHERAMANGALAM AMSOM DESOM,
ALATHUR TALUK, PIN- 678 703.
2/-
-2-
OP(C).NO.2360/2016
7. RAJA @ RAJI, W/O. BALAN, RESIDING AT VALAYIL VEEDU, THENIDUKK, KANNAMBRA AMSOM DESOM. PIN- 678 686.
8. PREMA,W/O. SUDEVAN, RESIDING AT PUDUR, ANIKODE, PIN- 678 581.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
OP(C).No. 2360 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
RESPONDENT(S)' EXHIBITS:
NIL
/TRUE COPY/
P.A.TO JUDGE
sts
K.RAMAKRISHNAN, J.
O.P.(C) No.2360 of 2016
Dated this the 28th day of September, 2016
JUDGMENT
This petition is filed by the petitioner challenging Ext.P5 order passed by the court below under Article 227 of the Constitution of India.
O.P.(C) No.2360 of 2016
2
was that, at the time of trial, the court below may rely on the commissioner's report regarding the availability of the properties and pass orders against the interest of the petitioner.
O.P.(C) No.2360 of 2016
3
“at the most, the existence of the plaint schedule property as such would be the only interia for the court at this point of time, also in the commissioner's report filed neither side as any objection as regards the existence of the plaint schedule property and the same is to substantiated by the commissioner's report and the circumstances. Even if the commissioner's report is set aside or remitted, no particular purpose will be served and also the matter being the year 2008, merely 8 years have been lapsed the matter is not found essential for just disposal of the case. Hence the petition is dismissed, seeing that the matter stated can be agitated at the time of final decree if any provided the plaint schedule property is partible, there being allegation of oral partition”. So it is clear from the order itself that, court below has observed that the parties at liberty to adduce evidence regarding the partibility of the property and whether the plaintiff is entitled for partition and the question is as to whether there is oral partition or not etc., is the matter to be considered by the court on the basis of evidence. If the petitioner adduces evidence on the basis of the objections at the time of trial regarding the commissioner's report and the observation made regarding the identity and availability of the properties, that also can be considered by the court below before
O.P.(C) No.2360 of 2016
4
coming to the conclusion as to whether the properties are available for
partition or not.
With the above observation the petition is dismissed.
Registry is directed to communicate this judgment to the court
below at the earliest.
Sd/- (K. Ramakrishnan, Judge)
//True Copy//
P.A. to Judge
ss
2 issues framed by the court
Whether a writ petition under Article 227 is maintainable to set aside a commissioner's report regarding property identification in a partition suit at the admission stage.
Whether the preliminary issue of property existence must be considered in a partition suit during the declaration stage rather than at the final decree stage.
2 provisions across 1 enactments
Kuttykrishnan
Ramachandran
Prabhakaran
Setumadhavan
Devaki
Venugopalan
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
