SULFATH BEEVI Vs. RAJEENA BEEGAM

JUDGEMENT

(1.) The prayers in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India are as follows :

(2.) Heard Sri. Subhash Syriac, learned counsel appearing for the petitioners/defendants. In the nature of the orders proposed to be passed in this petition, notice to the respondents/plaintiffs will stand dispensed with.

(3.) The present Exhibit-P1 Original Suit No.476 of 2016 has been filed by the respondents herein before the Munsiff Court, Kottarakkara, seeking partition of the plaint item property measuring 30.15 Ares (74.5cents) against their mother (first petitioner herein) and their brother (second petitioner herein). The property said to have been originally belonged to one Musthafa, the deceased father of the respondents and the husband of the first petitioner. The case of the petitioners is that the deceased Musthafa had already given the family share to the respondents herein. It is stated that the petitioners were residing in a hundred year old residential building situated in the plaint schedule property. According to them, the house building was in a dilapidated condition and based on the application of the petitioners, the court below had passed Exhibit-P4 order dated 10.4.2017 on I.A.No.2420 of 2016 in the said O.S. permitting the petitioners to renovate the old residential building and as per Exhibit-P5 order dated 27.9.2017 on I.A.No.2407 of 2017 in the said O.S., the court below had appointed an Advocate Commissioner to implement the said renovation work. It is also stated that the petitioners herein had undertaken that if the house comes under the share of the plaintiffs as per the final judgment of the Munsiff's Court in the partition suit, then the petitioners shall hand over the building to the respondents. It is the case of the petitioners that during the renovation process, due to the extreme old age of the house, the roof and chimney of the building had collapsed and fallen down destroying the building completely. After the collapse of the old building, the Commissioner had also occasioned to visit the site and had submitted Exhibit-P6 report dated 2.11.2017 based on the site inspection conducted by the commission on 18.10.2017 and had reported that under the present circumstances, renovation is possible and re-construction of the house building is the only remedy. Thereupon the petitioners had preferred Exhibit-P8 I.A.No.3387 of 2017 in the said O.S. on 10.11.2017 praying for the directions and permissions of the court to enable re-construction of the collapsed building under the supervision of the Advocate Commissioner. As against Exhibit-P8 I.A., the respondents had filed Exhibit-P12 objections. It is stated that though there is an averment in Exhibit-P12 objections that the destruction of the building occurred only due to the overt act of the petitioners herein, no evidence whatsoever has been let in by the respondents herein before the court below to even remotely vindicate the veracity of any such suggestion made by them. Thereafter, the trial court has dismissed the prayer in Exhibit-P8 I.A. as per the impugned Exhibit-P11 order dated 29.11.2017. It is this order at Exhibit-P11 that is under challenge in this Original Petition (Civil).