JUSTINA PRECIOSA LOBO Vs. TOME ALIAS THOMAS NOLASCO

JUDGEMENT

(1.) RULE. Heard forthwith. The present petition is against the order dated 6. 1. 2007 wherein the learned trial Court has rejected the application by the petitioner herein for considering the improvements done to the residential house situated in property identified under survey No. 362/54 of Aldona village. Preliminary decree has already been drawn up. In so far as the preliminary decree is concerned, shares of the parties are to be ascertained and determined, based upon their respective shares, which has been done. At that stage, it is not possible to consider the contention of the parties, like what has been contended now, that the petitioner had made improvements to the house with consent of the respondents. The Commissioner appointed, has opined that considering the property, it is not possible to partition the house and consequently it will have to be sold by way of auction. The case of the petitioner is that the improvements done by the petitioner should be taken into consideration as those improvements would have a bearing on the valuation of the property including the house. The learned Counsel is right as otherwise the petitioner will have no opportunity of establishing their case as to improvements if the house is sold in auction before the issue is dealt. Considering the above, impugned order dated 6. 1. 2007 is set aside and the trial Court is directed to consider the application by the petitioner to the limited extent of improvements which were done to the ancestral house standing in the property identified under S. N. 362/54. On behalf of the petitioner the learned Counsel draws attention to a typographical error in the matter of share in the decree dated 4. 5. 2002. It is contended that while passing the order in favour of plaintiff Nos. 3 and 4, share marked is ? share instead of 1/12th share. On behalf of respondent the learned Advocate states that this is typographical mistake and he has no objection to the correction. Parties to move the learned trial judge for correction of the typographical error. The learned trial judge accordingly to carry out the said correction. Rule is made absolute accordingly with no order as to costs. Writ petition is disposed of.