2025:KER:31022 O.P (C) No.890 of 2018 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947 OP(C) NO. 890 OF 2018 AGAINST THE ORDER DATED 12.02.2018 IN I.A 2429/2017 IN FDIA 610/2016 IN OS NO.23 OF 2014 OF SUBORDINATE JUDGE'S COURT, KOZHIKODE PETITIONER: MUHAMMED ANWAR, AGED 50 YEARS, S/O. VALAPPIL POKKER HAJI(LATE), AGED 50 YEARS, IRERAKKAL, ELETHIL AMSOM, KOZHIKODE NOW RESIDING AT MUNNOOKKAM PORVAY,RAROTH AMSOM, DESOM, THAMARASSERI TALUK, P.O PARAPPINPOIL, VIA THAMARASSERI, KOZHIKODE PIN 673 573. BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENT: ABDUL GAFOOR, AGED 48 YEARS, S/O. VALAPPIL POKKER HAJI(LATE), AGED 48 YEARS, IRERAKKAL, ELETHIL AMSOM, AVILORA DESOM, KOZHIKODE - 673 573. 2025:KER:31022 O.P (C) No.890 of 2018 2 BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:31022 O.P (C) No.890 of 2018 3 K.BABU, J. -------------------------------------- O.P (C) No.890 of 2018 --------------------------------------- Dated this the 9th day of April, 2025 JUDGMENT The challenge in this Original Petition is to Ext.P7 order dated 12.02.2018 in I.A No.2429/2017 in FDIA No.610/2016 in O.S No.23/2014 on the file of the Subordinate Judge's Court, Kozhikode. 2. The petitioner is the defendant in O.S No.23/2014. 3. The plaintiff instituted the Original Suit for partition. The Trial Court passed a preliminary decree directing the partition of the plaint schedule property into two equal shares. The plaintiff filed a final decree application. The Court appointed a Commissioner to partition the plaint schedule property. On 21.03.2017, the Commissioner filed a report along with a plan. 4. The petitioner/defendant challenged the report, raising the following objections: 2025:KER:31022 O.P (C) No.890 of 2018 4 (i) The Commissioner allotted a rectangular-shaped plot to him, which was inconvenient for him. (ii) The Commissioner ought to have divided the property in the east-west direction, and the plot that would come on the south should have been allotted to the share of the plaintiff. 5. The plaintiff/respondent resisted the application, contending that the Commissioner has equitably distributed the property among the sharers. 6. The Trial Court held that the distribution of the property is equitable, and therefore, the Court dismissed the application. 7. Heard the learned counsel for the petitioner/plaintiff and the learned counsel for the respondent/defendant. 8. The learned counsel for the petitioner submitted that the Commissioner had not valued the property to arrive at an equitable distribution. It is further submitted that if the northern portion lying in regular shape and the southern portion lying in irregular shape 2025:KER:31022 O.P (C) No.890 of 2018 5 were divided treating as two properties, the advantages and disadvantages on account of the property's shape would have been distributed equally among the parties. 9. The learned counsel for the plaintiff contended that the Commissioner has considered all options available and partitioned the property most equitably. The sketch prepared by the Commissioner is produced and marked as Ext.P4. Plot 'A' in Ext.P4 sketch is allotted to the defendant, who has his self-acquired property on the immediate north of it, which abuts a public road in the east-west direction. Plot 'A' is rectangular. The width of the property on the north is 11.64 metres. The southernmost portion of the plot abuts a walkway. Plot 'B' is allotted to the plaintiff. The east-west measurement of plot 'B' on the northern side is 20.90 metres. Plot 'B' abuts a 'nadavazhi' (walkway) on the entire eastern side. 10. The plot allotted to the plaintiff (Plot 'B') has access to the northern public road through the walkway. The extent of both plots is 10.83 cents. There is no successful challenge on the valuation of the 2025:KER:31022 O.P (C) No.890 of 2018 6 property. The only challenge of the defendant is that the plot allotted to him (Plot 'A') is rectangular. Admittedly, his self- acquired property, which has access to the public road, is on the immediate north of the plot allotted to him. 11. The learned counsel for the defendant suggested an alternative proposal with the aid of Ext.P5 sketch. As per the alternative proposal, the entire northern portion in regular shape is sought to be allotted to the defendant. If that proposal is accepted, the plaintiff would suffer inconvenience as the plot suggested to be allotted to him would go far from the public road. If the Court proceeds to pass a preliminary decree based on the alternative proposal, the plot sought to be allotted to the plaintiff would be highly irregular. 12. The alternative proposal does not reflect an equitable sharing of the property. I cannot accept the alternative proposal suggested by the learned counsel for the defendant. The sharing of the property effected by the Commissioner, as per Ext.P4 sketch, is 2025:KER:31022 O.P (C) No.890 of 2018 7 found to be more equitable. Therefore, the impugned order requires no interference under Article 227 of the Constitution of India. The Original Petition (Civil) stands dismissed. Sd/- K.BABU, JUDGE KAS 2025:KER:31022 O.P (C) No.890 of 2018 8 APPENDIX OF OP(C) 890/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN O.S NO.23/2014 DATED 23.9.2015 OF THE ADDITIONAL SUBORDINATE JUDGE NO.II KOZHIKODE. EXHIBIT P2 TRUE COPY OF THE DECREE IN O.S NO.23/2014 DATED 23.9.2015 OF THE ADDITIONAL SUBORDINATE JUDGE NO.II KOZHIKODE. EXHIBIT P3 TRUE COPY OF THE MEMO DATED 10.2.2017 GIVEN BY THE COUNSEL FOR THE PETITIONER TO THE ADVOCATE COMMISSIONER IN FDIA.NO. 610/2016 OF THE ADDITIONAL SUBORDINATE JUDGE NO.II KOZHIKODE. EXHIBIT P4 TRUE COPY OF THE COMMISSION REPORT, PLAN, VALUATION STATEMENT, AND SHARE LIST SUBMITTED BY THE ADVOCATE COMMISSIONER IN FDIA. NO.610/2016 OF THE ADDITIONAL SUB ORDINATE JUDGE NO.II KOZHIKODE. EXHIBIT P5 TRUE COP OF THE OBJECTION AND PLAN FILED BY THE PETITIONER IN FDIA. NO.610/2016 OF THE ADDITIONAL SUBORDINATE JUDGE NO.II KOZHIKODE. EXHIBIT P6 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN I.A NO.2429/2017 OPPOSING THE APPLICATION FOR REMITTAL. 2025:KER:31022 O.P (C) No.890 of 2018 9 EXHIBIT P7 TRUE COPY OF THE ORDER IN I.A NO.2429/2017 IN FDIA NO.610/2016 IN O.S NO.23/2014 OF THE HON'BLE SUBORDINATE JUDGE, KOZHIKODE DT. 12.2.18.