Karthyayani vs Pushpa
2021 Latest Caselaw 4721 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR. JUSTICE SATHISH NINAN

    TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                     OP(C).No.1503 OF 2020

   AGAINST THE ORDER DATED 28.05.2020 IN I.A.NO.3203/2019 IN
I.A.2262/2016 IN OS 505/2013 OF PRINCIPAL SUB COURT,IRINJALAKUDA

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PETITIONERS/PLAINTIFFS IN O.S:

      1      KARTHYAYANI
             AGED 80 YEARS
             W/O. KUNNUMMEL MANI, INCHAKUNDU DESOM,
             VELLIKULANGARA VILLAGE, MUKUNDHAPURAM TALUK,
             THRISSUR DISTRICT.

      2      SOBANA,
             AGED 56 YEARS
             D/O. KUNNUMMEL MANI, INCHAKUNDU DESOM,
             VELLIKULANGARA VILLAGE, MUKUNDHAPURAM TALUK,
             THRISSUR DISTRICT.

             BY ADVS.
             SRI.K.S.RAJESH
             SRI.M.SHAJU PURUSHOTHAMAN

RESPONDENTS/DEFENDANTS IN O.S:
       1     PUSHPA
             AGED 55 YEARS
             W/O. KUNNUMMEL CHANDRAN @ ACHUTHAN
             INCHAKUNDU DESOM, KUNNUMMEL HOUSE,
             VELLIKULANGARA VILLAGE, MUKUNDHAPURAM TALUK,
             THRISSUR DISTRICT. 680 312.

      2      NISHA,
             AGED 33 YEARS
             D/O. KUNNUMMEL CHANDRAN @ ACHUTHAN ,
             KUNNUMMEL HOUSE,
             INCHAKUNDU DESOM,
             VELLIKULANGARA VILLAGE, MUKUNDHAPURAM TALUK,
             THRISSUR DISTRICT. 680 312.

             R1-2 BY ADV. SRI.RAJESH CHAKYAT

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                      SATHISH NINAN, J.
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                 O. P. (C) No.1503 of 2020
            ==================
           Dated this the 9th day of February, 2021

                            JUDGMENT

In the final decree proceedings in a suit for

partition, the trial court appointed an Advocate Commissioner to prepare a plan to demarcate the

plaint schedule property in terms of the

preliminary decree. The application was objected to

by the petitioner-plaintiff for the reason that

already a report is available and that unless the

same is set aside, a fresh commission cannot be

issued.

2. In the present order, the trial court has

directed the same Advocate Commissioner and

Surveyor to prepare another plan suggesting another

mode of division as indicated in the order. The

said direction was referring to the deposition of

the Commissioner. The court felt that, division of

property suggested in the Commissioner's Report

that is presently available does not appear to be

equitable and accordingly ordered issuance of O. P. (C) No.1503 of 2020

another commissioner. I do not find any error of

jurisdiction in the order. On obtaining the report,

it shall be open for the court to consider both the

reports and accept the one that the court finds to

be more equitable and just.

Original petition is disposed of as above.

Sd/-

SATHISH NINAN JUDGE kns/-

//True Copy// P.S. to Judge OP(C).No.1503 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE PRELIMINARY DECREE DATED 18.6.2016 IN OS 505/2013.

EXHIBIT P2 TRUE COPY OF THE COMMISSION REPROT AND SKETCH DATED 16.7.2019 FILED BY THE ADVOCATE COMMISSIONER IN OS 505/2013.

EXHIBIT P3 TRUE COPY OF THE COMMISSION APPLICATION IA 3203/2019 DATED 18.11.2019.

EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED 28.11.2019 FILED BY THE PETITIONERS.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 28.5.2020 PASSED BY THE PRINCIPAL SUB COURT, IRINJALAKUDA IN IA 3203/2019.

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