1 O.P.(C) NO.1330 OF 2024 2025:KER:25753 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947 O.P.(C) NO.1330 OF 2024 AGAINST THE ORDER/JUDGMENT IN OS NO.10 OF 2019 OF ASSISTANT SESSIONS COURT/ADDITIONAL SUB COURT, KOTTAYAM) PETITIONER/PETITIONER/DEFENDANT: JIJI GEORGE JOSEPH, AGED 56 YEARS, S/O. K.V. JOSEPH, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SINI JIJI, AGED 46 YEARS, W/O. JIJI GEORGE JOSEPH, KANDANKARY HOUSE, NEAR S.B. COLLEGE, CHANGANACHERRY P.O., KOTTAYAM DISTRICT, PIN – 686 101 BY ADVS. M.P.MADHAVANKUTTY MATHEW DEVASSI ANANTHAKRISHNAN A. KARTHA RESPONDENT/COUNTER PETITIONER/PLAINTIFF: GEOGY JOSEPH, AGED 53 YEARS, S/O. LATE K.V. JOSEPH, KANDANKERIL HOUSE, NEAR S.B. COLLEGE, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN – 686 101 BY ADVS. Jacob E Simon ARATHY P.(K/003158/2022) ASHWIN MATHEWS(K/002706/2023) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.06.2024, THE COURT ON 26.03.2025 DELIVERED THE FOLLOWING: 2 O.P.(C) NO.1330 OF 2024 2025:KER:25753 JUDGMENT (Dated: 26th March, 2025) The petitioner is the defendant in O.S.No.10 of 2019 on the files of the Additional Sub Court, Kottayam. The respondent is the plaintiff. 2. The suit was filed for partition. The plaint schedule property has an extent of 13.98 Ares in Resurvey No.15/1 in Block No.7 of Vazhappally East Village, Changanacherry Taluk. The property originally had an extent of 19.25 Ares (as per resurvey records), which was in the name of the father of the plaintiff and defendant. He executed a will deed and also a gift deed transferring 3 cents out of the total extent of 19.25 Ares in favour of his daughter by name Rose Rolly by virtue of the settlement deed bearing No.596/1988 of the S.R.O., Changancherry. Smt. Rose Rolly transferred the above 3 cents to her mother Aleykutty Joseph by gift deed No.4224/1995 of 3 O.P.(C) NO.1330 OF 2024 2025:KER:25753 Changanacherry S.R.O. The said property was purchased by the plaintiff as per settlement deed No.310/2004, and constructed a building in the above 3 cents by availing a bank loan from HDFC Bank. The suit was decreed on 29.09.2022. The plaint schedule property was to be partitioned into two equal shares by metes and bounds, and the plaintiff and defendant are entitled to one-half share each of the plaint schedule property. 3. After the passing of the preliminary decree, the final decree application was filed, and in the final decree application, a commission application was filed to appoint the commissioner with a Surveyor for surveying the plaint schedule property and for dividing the property into one-half each. The commissioner, along with the surveyor, visited the said property, and Ext.P8 report, along with Ext.P9 was submitted before the court. The petitioner filed Ext.P10, I.A.No.5 of 2023 to set aside the commissioner's report on pointing 4 O.P.(C) NO.1330 OF 2024 2025:KER:25753 out 9 discrepancies. The plaintiff filed Ext.P11 objection. The court below by Ext.P12 dismissed the application, holding that the commissioner’s report and plan need not be set aside, and the same is demarcated in a manner causing less inconvenience to the parties in an equitable manner. Thus, Ext.P12 is challenged by the petitioner in this original petition. 4. Heard Sri. M.P.Madhavankutyy, learned counsel for the petitioner, and Sri.Jacob E.Simon, learned counsel for the respondent. 5. The counsel for the petitioner Sri.Madhavankutty submits that the plaint schedule property is having 13.98 Ares in Resurvey No.15/1 in Block No.7 of Vazhappally East Village, Changanacherry Taluk, and building No.122/IV (old No.429/XXXI) of Changanacherry Municipality. A preliminary decree is passed in the said property dividing it into two, and the plaintiffs and defendant are entitled to 5 O.P.(C) NO.1330 OF 2024 2025:KER:25753 one-half share each, but the commissioner has prepared a report and plan. The commissioner has included 1.22 Ares of property, which the plaintiff obtained from the mother as per a settlement deed also, and without demarcating the same, it has been shown as one plot allotted to the plaintiff. He objects that the decree-scheduled property is only 13.98 Ares, and when the measurement is conducted, the same is only 13.70 Ares. In such circumstances, plaint schedule property having an extent of 13.70 Ares alone is divided, and the extent of 1.22 Ares cannot be made part of the report and plan prepared by the commissioner. If the commissioner wanted to show the extent of 1.22 Ares of property, he should have separately shown 1.22 Ares, which the plaintiff obtained separately, and then should have made a demarcation adjoining the same. 6. A perusal of the plan as well as the report would show that the plaintiff is allotted 8.07 Ares of property, which includes 6.85 6 O.P.(C) NO.1330 OF 2024 2025:KER:25753 Ares being the half share of the plaint schedule property, and 1.22 Ares, which he obtained as per the settlement deed of the mother. This is the main objection raised by the counsel for the petitioner in the application to set aside the report. 7. The court below had held that 1.22 Ares, though not separately shown, can be clubbed together towards the share of the plaintiff, and the commissioner has only done it to avoid inconvenience to the parties and considering the lie and nature of the plots. 8. The counsel for the respondent submits that the plan prepared by the commissioner causes the least inconvenience to both parties and gives M.C. road frontage to both parties equally. It is true that the plaintiff has a Municipality road adjoining the property allotted to him on the southern side. It is contended that the house is situated on the 1.22 Ares of land allotted to the plaintiff, 7 O.P.(C) NO.1330 OF 2024 2025:KER:25753 and inorder to see that the property adjoining the same is allotted to the plaintiff, the commissioner has demarcated the property, including 1.22 Ares. Therefore, there is no need to set aside the plan. When a commissioner is appointed to demarcate the property and divide the property as per the preliminary decree, the commissioner can only divide what is in the decree schedule, which is admittedly 13.98 Ares, but as per the lie and location, it is only 13.70 Ares. So, what can be divided is only 13.70 Ares. The commissioner cannot include 1.22 Ares and show it along the ½ share allotted to the plaintiff. Therefore, the commissioner’s report is not in tune with the preliminary decree, and the direction is to divide the property into two halves. In such circumstances, Ext.P12 is set aside, and the court below is directed to issue fresh direction to the commissioner and surveyor to demarcate the plaint schedule property into two equal halves and then divide the property as per 8 O.P.(C) NO.1330 OF 2024 2025:KER:25753 the preliminary decree within a period of eight months from today. This Original Petition (C) is disposed of as above. Sd/- BASANT BALAJI, JUDGE ss 9 O.P.(C) NO.1330 OF 2024 2025:KER:25753 APPENDIX OF OP(C) 1330/2024 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ABOVE POWER OF ATTORNEY EXECUTED ON 14-05-2024 BY THE PETITIONER Exhibit P2 A TRUE COPY OF THE PARTITION DEED DATED 23-12-1995 BEARING NO. 4315/95 Exhibit P3 A TRUE COPY OF THE PLAINT IN O.S. NO. 10/2019 BEFORE THE SUBORDINATE JUDGES COURT, KOTTAYAM Exhibit P4 A TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO. 10/2019 DATED 04-04-2024 Exhibit P5 A TRUE COPY OF THE JUDGMENT IN O.S. NO.10 OF 2019 DATED 29-09-2022 Exhibit P6 A TRUE COPY OF THE PRELIMINARY DECREE DATED 29-09- 2022 BEFORE THE ADDITIONAL SUBORDINATE JUDGES COURT, KOTTAYAM Exhibit P7 A TRUE COPY OF THE APPLICATION DATED 14-11-2022 Exhibit P8 A TRUE OF THE ADVOCATE COMMISSIONER SUBMITTED A REPORT DATED 22-02-2023 Exhibit P9 A TRUE COPY OF THE SURVEY PLAN PREPARED BY THE TALUK SURVEYOR DATED 31-12-2022 Exhibit P10 A TRUE COPY OF I.A. NO. 5/2023 IN F.D.A.NO. 38/2023 Exhibit P11 A TRUE COPY OF THE OBJECTION DATED 21-03-2023 Exhibit P12 INTERLOCUTORY APPLICATION BEARING NO. 5/2023 IN F.D.A. NO. 38/2023 HAS BEEN DISMISSED ON 02-03- 2024 Exhibit P13 A TRUE COPY OF THE BUILDING PERMIT DTD 28.2.2001 10 O.P.(C) NO.1330 OF 2024 2025:KER:25753 RESPONDENT EXHIBITS Exhibit-R1A A true copy of the alternative plan dated nil Exhibit R1B A TRUE COPY OF THE SETTLEMENT DEED NO. 310/2004 OF CHANGANASERY SRO. PETITIONER EXHIBITS Exhibit P14 TRUE COPY OF THE SURVEY PLAN