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C.K.DHARMADAS, CHERUVALATH KELOTH versus CHERUVALTH KELOTH RAJAGOPALAN

High Court of Kerala

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C.K.DHARMADAS, CHERUVALATH KELOTH v. CHERUVALTH KELOTH RAJAGOPALAN - WP(C) No. 8331 of 2007(P) [2007] RD-KL 5289 (13 March 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 8331 of 2007(P)

1. C.K.DHARMADAS, CHERUVALATH KELOTH,
... Petitioner

Vs

1. CHERUVALTH KELOTH RAJAGOPALAN,
... Respondent

2. CHERUVALATH KELOTH KOUSALYA, AGED 76

3. C.K.RAGHAVAN, AGED 74 YEARS,

4. CHERUVALATH KELOTH RAMACHANDRAN,

5. CHERUVALATH KELOTH SAROJINI,

6. CHERUVALATH KELOTH MUKUNDAN,

7. CHERUVALATH KELOTH SARASWATHI,

8. CHERUVALATH KELOTH PUSHPAVALLI

9. CHERUVALATH KELOTH DEVAYANI,

10. CHERUVALATH KELOTH DEVADASAN,

11. CHERUVALATH KELOTH JAYANTHI JAYAKRISHNAN

12. N.ABDUL KHADER, S/O.A.K.MOIDU,

13. KUNNUMBRATH UMMER, S/O.AHAMMAD, AGED

For Petitioner :SRI.C.VALSALAN

For Respondent : No Appearance

The Hon'ble MR. Justice K.P.BALACHANDRAN

Dated :13/03/2007

O R D E R

K.P.BALACHANDRAN, J.


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W.P.(C)NO.8331 OF 2007
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Dated this the 13th day of March 2007



JUDGMENT

The petitioner is the plaintiff in O.S.205/96 on the file of the Munsiff's Court, Vadakara wherein preliminary decree for partition had already been passed. On the objections of the first respondent to the report of the Commissioner effecting division of the properties, the commission report was remitted back to the Commissioner. I.A.1213/06 was filed by the petitioner before the court below to review the order remitting the commission report back to the Commissioner. The said petition was dismissed by the court below vide Ext.P2 order. It is submitted by counsel for the petitioner that I.A.1213/06 was being filed to review the order remitting the commission report back to the Commissioner for the reason that as per the Commission report an extent of 11.83 cents is allotted to the petitioner and what the petitioner wants is not to disturb the said allotment. It is submitted by counsel for the petitioner that the first respondent has already sold his share in the property, and that therefore there is no equity in favour of the transferee to have the plot being reallotted to his share.

2. It is not evident as to what were the objections raised by the W.P.(C)NO.8331 OF 2007 2 first respondent to have the commission report remitted back to the Commissioner. However, on such remission, as observed by the court below in Ext.P2 order, it does not mean that the contentions of the first respondent are accepted. If the Commissioner after revisit finds that there is no merit in the objection and that the allotment made at present is the most feasible manner in which shares can be allotted, he can report that aspect to the court. All the same, if at all there is any need to effect reallocation he can report that as well to the court and one of the sharers cannot object insisting that the plot allotted to him should not be altered when the commission report is remitted back on the objections of the one of the sharers. However, on furnishing the report the final decree court will consider the feasibility and pass appropriate orders. There is no reason why this writ petition is to be allowed setting aside Ext.P2 order and the proceedings in the final decree. In the result, this writ petition is devoid of merit and is dismissed. It is made clear that in the event of a reallocation being made the petitioner also may be heard.

K.P.BALACHANDRAN, JUDGE

jes


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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