Decided on July 20,2003

MOHANAN Respondents


- (1.) In O.S. No.36/1986 on the file of the Munsiff, Kannur filed by the first respondent in this revision a preliminary Decree was passed by the court finding that the plaint schedule property had to be divided into three equal shares and one share had to be allotted to the first respondent. The direction in the preliminary decree was that the remaining two shares belonged to the defendants in the suit, one of whom was the petitioner. But the court said that the shares of the defendants need not be separately allotted as they had not paid the requisite court fee. It is submitted that court fee for partition of properties was paid by the defendants and a supplementary preliminary Decree was passed allotting 1/3 share to the first defendant, who is the revision petitioner and the other 1/3 share to the second respondent. The share of the plaintiff was got assigned by the second respondent and now she has 2/3 share in the property.
(2.) Final Decree proceedings are pending in the court and a Commission was taken out for dividing the properties by metes and bounds. The report and the plan were remitted to the Commissioner and the Commissioner again filed a plan and report. In the report the Commissioner said that the total extent of the plaint schedule property is 16 1/2 cents and the area covered by the house, car shed, bath room, well, etc. would come up to 9 cents and the remaining 7 1/2 cents lie on the north, west and south as shown in the plan. The Commissioner found that the actual partition of the plaint schedule property by giving the house in the share that would be allotted to the second respondent is not possible and hence filed report stating that the entire plaint schedule property including the house has to be allotted to the share of the second respondent and an amount of Rs.2,90,798.75 has to be given to the petitioner as owelty amount.
(3.) Petitioner filed I.A.1451/2002 raising objection to the report and plan of the Commissioner and praying to remit back the Commission Report to the Commissioner. The Trial Court made an order on 11th June, 2002 dismissing the above interlocutory application filed by the petitioner and that order is under challenge.;

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