VALSAN JEROME Vs. ROCKY (DIES)

JUDGEMENT

(1.) This original petition is filed by the petitioner in I.A.No.3837/2015 in I.A.No.2263/2014 in O.S.No.528/2008 of Sub Court, Ernakulam. Petitioner is the plaintiff in a suit for partition who had initiated final decree proceedings.

(2.) Preliminary decree was passed in the suit by which the plaint schedule properties were ordered to be divided into 15 equal shares and plaintiff was entitled to 2/15 shares. It was inter alia provided that 2/15 shares of the plaintiff which included his share over plaint B schedule property can be adjusted from plaint A schedule property. Plaint A schedule property had an extent of 25 cents and B schedule property, 5 cents. Final decree was challenged in A.S.No.93/2011. The appellate court clarified the above direction to carve out the share from plaint A schedule property and explained that by carving out the share of the appellant from the plaint A schedule property, the value of his 2/15 shares in plaint B schedule property has to be taken into record and property equivalent to the said value from plaint A schedule also has to be allotted to the appellant along with his 1/5 share in plaint A schedule.

(3.) In the final decree proceedings, an Advocate Commissioner was appointed, who, after elaborate measurement and valuation of the property and building, filed the final report. Petitioner filed I.A.No.3837/2015 to set aside the commission report. In the above application, it was claimed that the Commissioner went wrong in not properly identifying the properties involved. It was contended that the valuation adopted by the Commissioner was improper. It was also claimed that while carving out the share of the petitioner's property, property equivalent to the price of 2/15 share in the plaint B schedule property had to be allotted to him from plaint A schedule property. It was contended that the Commissioner should have ascertained the value of the plaint B schedule property. Yet another contention was that B schedule property was a highly potential and commercially significant property. The additional defendant had purchased the undivided share of the co-owners without the knowledge of the petitioner herein, for a price which was 8 times higher than the then existing market price. The Commissioner failed to notice the above aspect and fixed the value of the property at an arbitrarily low amount. It was also contended that the Commissioner went wrong in not allotting the residential building to the petitioner who was residing there with family. He was the only party to the proceeding who had no independent residence and other co-owners had independent residence.