A. K. RAVEENDRAN Vs. A. MURALI

JUDGEMENT

(1.) The petitioner is the third respondent in Final Decree Interlocutory Application No.32 of 2012 in O.S.No.210 of 1997 pending before the Sub Court, Kannur. In the suit for partition, a preliminary decree was passed on 31/8/1999, directing division of the plaint B Schedule Property into two equal shares and allotment of one share to defendants 4 to 11 and the remaining share to the 12th defendant. In the preliminary decree, B Schedule property is described as follows;

(2.) Although plaintiffs filed appeal against the judgment and decree and petitioner, along with the other legal heirs of the 12th defendant, filed a cross appeal therein, both appeal as well as cross appeal were dismissed. Thereupon, the respondents/defendants 4 to 11, who are allotted with half share in plaint B schedule, filed the FDIA. The petitioner, though not allotted with any share, is arrayed as the third respondent in the final decree application, in his capacity as legal heir of the deceased 12th defendant and former Manager of the school functioning in B schedule property. In the final decree proceedings, the Advocate Commissioner filed Ext.P6 report, sketch and share list. The respondents filed I.A.No.878 of 2010 for remitting the Commissioner's report, mainly contending that as per the preliminary decree, the school building and movables alone are to be divided and the Commissioner committed a mistake in valuing the land (3.95 cents) wherein the school building is situated. It was also contended that, structures like toilet, well, Anganwadi building etc are not part of B schedule and the Commissioner cannot value the same. As no objection was filed by the respondents, the interlocutory application was allowed and the report remitted to the same Commissioner. Thereupon, the Advocate Commissioner filed a revised report excluding the value of the land and the structures like latrine, well and Anganwadi building. This time, the petitioner along with another filed I.A.No.1399 of 2010 for remitting the Commissioner's report. By Ext.P11 order, the learned Sub Judge dismissed the application. The petitioner challenged Ext.P11 before this Court and by Ext.P12 judgment, the impugned order was set aside and the matter remitted back for providing opportunity to the petitioner to adduce evidence on his application seeking remittance of the Commissioner's report. Thereafter, the petitioner produced certain accounts pertaining to the amounts allegedly spent by him for the repair/renovation of the school building and furniture and examined the Advocate Commissioner as a witness. The court below reconsidered the petitioner's application in terms of the direction in Ext.P12 judgment and dismissed the same vide Ext.P18 order. Aggrieved by Ext.P18, the petitioner preferred O.P.(C) No.2494 of 2016, which was dismissed under Ext.P19 judgment, finding that an application for remitting the Commissioner's report was not maintainable in the light of the decision in Francis Assisi v. Sr.Breesiya [2017 (1) KLT 1041 ]. While dismissing the original petition, it was made clear that the order will not take away the right of the party to seek issuance of a fresh Commission. Accordingly, the petitioner filed Ext.P20 application for issuing a fresh Commission to divide the plaint schedule property by metes and bounds and to file alternative share list, allotting the plaint schedule property to the petitioners in the final decree and the legal representatives of the 12th defendant. The respondents filed Ext.P21 objection and the court below dismissed the application under Ext.P22 order. Hence, this original petition.

(3.) Heard Adv.V.R.K.Kaimal for the petitioner and Adv.R.Surendran for the contesting respondent.