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2026 DAILYLAW 603 (KER)

George v. Lilly V. V. , W/O. K. K. Thampan

2026-05-19

Syam Kumar V M

body2026
JUDGMENT : Syam Kumar V.M., J. This O.P.(C) is filed challenging Exhibit P6 order dated 02.02.2021, in I.A.No.179 of 2018 in I.A No.437 of 2016 (FDA) in O.S No.106 of 2013, on the files of the Subordinate Judges Court, Perumbavoor. Petitioners are the respondents in Final Decree Application No.437 of 2016 filed in O.S.No.106 of 2013. 2. Petitioners had filed I.A.No.179 of 2018 in I.A. No.437 of 2016 (FDA) in O.S.No.106 of 2013, seeking to set aside the Commission report and survey sketch filed by the Advocate Commissioner appointed for effecting partition of the decree schedule property in accordance with the preliminary decree dated 03.09.2015 passed by the Sub Court, Perumbavoor. By Exhibit P6 order dated 02.02.2021, the court below partly allowed the said application and remitted the report to the Advocate Commissioner to correct the valuation of the entire plots and buildings in the plaint A and B schedule properties. It is the grievance of the petitioners that the court below failed to consider the specific objections raised by them regarding the allotment of shares to the respondents, and erred in accepting the survey sketch, overlooking the valid objections raised by them. 3. Heard Sri.M.K.Dileepan, the learned counsel for the petitioner and Sri.Paul K.Varghese, the learned counsel for the respondent in detail. 4. It is submitted on behalf of the petitioners that the court below erred in passing the Exhibit P6 order, insofar as it rejected the petitioners’ prayer in I.A.No.179 of 2018 to set aside Exhibit P2 Commission report in toto and to call for a fresh report after proper consideration of the petitioners’ objections relating to the allotment of share to the respondent. The impugned order, to the said extent, is unsustainable in law and liable to be interfered with. According to the learned counsel, the allotment of plots 5A and 5B in Plan No.1 attached to Exhibit P2 Commission report towards the respondents’ share is manifestly unjust and improper, as the said plots are located on the southern and western sides of the residential building of the 2nd petitioner. Such an allotment, it is submitted, seriously affects the 2nd petitioner’s convenient access to, use of, and enjoyment of the residential building, and causes substantial prejudice and hardship. Such an allotment, it is submitted, seriously affects the 2nd petitioner’s convenient access to, use of, and enjoyment of the residential building, and causes substantial prejudice and hardship. It is further submitted that the property comprised in Re-survey No.159/4 is lying as a single contiguous plot of dry land, and in such circumstances, there was absolutely no justification for the Commissioner to allot the respondents’ share by carving out plots 5A and 5B in an irregular and inconvenient shape. Furthermore, the respondents’ share, it is submitted, could and ought to have been allotted on the northern side of the Tharavadu building in a regular rectangular form, which would have ensured a fair, convenient, and equitable division of the property without causing avoidable detriment to the petitioners. It is contended that the Exhibit P6 order was passed by the court below on a wrong appreciation of evidence. The observation of the court below that PW1, the Advocate Commissioner, deposed that allotment of share to the respondent could not be done on the northern side of the Tharavadu building as there was a level difference, is contrary to the evidence on record. In fact, PW1 had deposed that plot Nos.2, 5A and 5B in Plan No.1 are lying on the same level as a single plot. 5. The learned counsel for the petitioners further submitted that, while effecting partition, the Advocate Commissioner is bound to ensure an equitable division that secures the convenient use and enjoyment of the property by all sharers and avoids imposing unnecessary burdens on any share. The Commissioner ought to have considered that allotment of plot Nos.5A and 5B towards the respondents’ share would require setting apart a larger extent of land for common pathway to provide access to the remaining properties of the petitioners, thereby causing avoidable prejudice. It is also submitted that, once Exhibit P2 report was remitted and a fresh report was called for under Exhibit P6 order, the valuation and extent of the plots allotted may vary, necessitating fresh measurement and demarcation. Hence, Exhibit P2 Commission report and Exhibit P6 order, insofar as the objections were only partly allowed, are liable to be set aside and the Advocate Commissioner is liable to be directed to file a fresh report and sketch by re-allotting the respondents’ share. 6. Hence, Exhibit P2 Commission report and Exhibit P6 order, insofar as the objections were only partly allowed, are liable to be set aside and the Advocate Commissioner is liable to be directed to file a fresh report and sketch by re-allotting the respondents’ share. 6. Per contra, the learned counsel for the respondent vociferously objected to the averments in the O.P.(C) and contended that the dispute of the Petitioner was specific to the allotment of plaint A and B schedule properties. It is after considering the pleadings, evidence and documents, that the court below had found it fit to remit back the Commission report as well as plan for valuation in the relevant property and the buildings. It is submitted by the learned counsel that the Advocate Commissioner after giving prior notice to both the parties had again inspected the property and also the buildings and an additional report had been submitted. It is further submitted that the contentions raised by the petitioners in Exhibit P3 objections are untenable and contrary to the materials on record in so far as the nature of the land in each survey number, as well as the corresponding market value thereof, had been clearly and properly set out in the Commission report. 7. The learned counsel for the respondent pointing to Exhibit R1 report further submits that the said report would reveal that the plaint A schedule properties consist of 6.106 Ares comprised in Re-survey No.159/6, 10.55 Ares comprised in Re-survey No.159/1/7, and 56.10 Ares comprised in Re-survey No.159/4, all situated in Puthencruz Village, Kunnathunad Taluk and that on verification of the fair value of the said properties, it had been seen that the fair value is Rs.1,87,600/- per Are. The learned counsel points out that the Advocate Commissioner had specifically reported that the decree B schedule property, as per measurement, comprises 4 Ares of land in Survey No.141/3 and that the said property is shown in the plan as plot Nos.12 and 13. It had also been stated that the said property lies adjoining the PWD road and is situated immediately to the west of the said road. It had also been stated that the said property lies adjoining the PWD road and is situated immediately to the west of the said road. That though as per the Fair Value Register, the value fixed for the property comprised in Re-survey No.141/3 of Puthencruz Village is Rs.1,25,000/- per Are, considering the fact that the property lies directly abutting the PWD road, its value has been assessed at Rs.2,00,000/- per Are is also highlighted by the learned counsel. 8. It is further submitted by the learned counsel that the contention raised by the Petitioners that the major portion of the property comprised in Survey No.149/4 lies as a single plot on the eastern side of the kadathodu is factually incorrect and is contrary to the evidence on record. Attention is invited to Ext. P5 deposition of the Advocate Commissioner and it is stated that the Advocate Commissioner has specifically deposed that the property lying by the side of the road was allotted to one of the brothers and, as per the request made by the respondents, and the remaining items in the plaint A schedule property, after excluding the portion allotted to the plaintiff, were shown as one single block. The deposition of the Advocate Commissioner that at the time of measurement, none of the parties raised any objection and that the kadathodu is so narrow that it can be crossed by stepping across and that the allotment of the properties had been effected only after excluding the extent occupied by the kadathodu are also pointed out. 9. The learned counsel for the respondent counters the contentions of the petitioner in the O.P.(C) further by pointing out that the residential house of the 1st Petitioner, is situated in the plaint B schedule property abutting the PWD road and the preliminary decree specifically provides that the said residential building shall be allotted to him at the time of passing the final decree. Since the plaint B schedule property is thus not partible, the respondents’ share therein had to be adjusted elsewhere. Accordingly, plot No.5B in the sketch was allotted to the respondents adjacent to their remaining share, which it is pointed out was the only practical and equitable mode of adjustment. Since the plaint B schedule property is thus not partible, the respondents’ share therein had to be adjusted elsewhere. Accordingly, plot No.5B in the sketch was allotted to the respondents adjacent to their remaining share, which it is pointed out was the only practical and equitable mode of adjustment. It is further submitted that, since laterite stones had been excavated by the 2nd petitioner from the north-eastern portion of the property adjoining his residential building as was evident from Exhibit P5 report, the only feasible course was to effect partition in accordance with the sketch prepared along with Exhibit P2 report. The learned counsel also brings to my attention the deposition of the Advocate Commissioner wherein she was specifically asked whether the relevant residential building is situated considerably towards the north of the plot allotted to the respondent, and in answer thereto, she stated that the said plot has been allotted in such a manner that no inconvenience would be caused to the residential building. That the building has been valued by an expert Engineer in accordance with law and no contra evidence has been adduced by the petitioners to discredit the same is also pointed out. The learned counsel for the respondents thus submit that Exhibit P6 order impugned in the O.P.(C) had been validly rendered and calls for no interference by this Hon’ble Court. He thus prays that the O.P.(C) may be dismissed. 10. I have heard both sides in detail. The respective contentions put forth have been considered. The grievance of the petitioners in this O.P.(C) is inter alia that while rendering Exhibit P6, the court below had overlooked the fact that allotment proposed would cause serious inconvenience to the use and enjoyment of the residential building by the 2nd petitioner and that the deposition of the Advocate Commissioner concerning level difference on the northern side of the Tharavadu building, relied on by the court below, contradicts the statement of PW1 that the land was lying in the same level as a single plot, thus rendering an error in appreciation of evidence by the Court below necessitating interference. It is contended that based on the material placed before it, the court below ought to have found that sufficient extent of land was available on the northern side of Tharavadu building with road access for allocation of share to the respondent and allocation to the contrary was capable of causing inconvenience and hardship to the 2nd petitioner. Ancillary contentions as noted in detail had been raised and the same have been countered. The question that arises is whether Exhibit P6 order rendered by the Court below which inter alia held that the entire Commission report and plan need not be set aside and all that was required is a limited remission for considering the specific aspects enumerated therein, suffers from any illegality which calls for interference by this Court under Article 227. 11. Before going into the scope for such an interference under Article 227, I deem it relevant to note paragraphs 8 and 10 of the impugned order. It reads as follows: “8. In Ext.C1 (b) plan commissioner had shown plaint A and B schedule properties and in Ext.C1 (c) commissioner had shown plaint C and D schedule properties. It was reported by the commissioner in Ext.C1 (a) that after setting apart portion for pathway in B schedule only plot No.12 in plan No.1 was available for partition. As per Ext.C1 (a) report, the house of 1 respondent was situated in plaint B schedule property. Hence 1/3 right of plaintiff cannot be allotted in plaint B schedule property. Accordingly 1.13 Ares of property in plaint A schedule was allotted as the proportionate share of 1.056 Ares of property in plaint B schedule property to which plaintiff is entitled. Accordingly, commissioner allotted the plots which were mentioned as 5A and 5B as the share of plaintiff in A and B schedule properties from plaint A schedule property itself. On scrutinising Ext.C1 (a) report and Ext.C1 (b) plan it is evident that proportionate share of plaintiff in plaint B schedule property was allotted by the commissioner as contiguous to the plot allotted as the share of plaintiff in plaint A schedule property. Accordingly, plots 5A and 5B were set apart to the share of plaintiff. Similarly in Ext.C2 (c) plan commissioner has shown plot No.1 as the share of plaintiff in C schedule property and plot No.5 as the share of plaintiff in D schedule property. Accordingly, plots 5A and 5B were set apart to the share of plaintiff. Similarly in Ext.C2 (c) plan commissioner has shown plot No.1 as the share of plaintiff in C schedule property and plot No.5 as the share of plaintiff in D schedule property. During cross examination PW1 was examined on the possibility of allotting a share at the northern side of the house of 2nd respondent. PWI deposed that such an allotment could not be done as there was level difference of the properties. According to PW1, such an allotment was given in order to avoid inconveniences to the residential building. It is evident from Ext.C1 (a) report and Ext.C1 (b) plan that building of the 2nd respondent was situated in plot No.2 and residential building of 1st respondent was situated in plot No.12. Accordingly commissioner allotted plot No. 5A and 5B as the share of plaintiff in plaint A and B schedule properties. This court found no reason to reject the said allotment. On scrutinising Ext.C1(a) report and Ext.C1(b) plan this court is satisfied that the commissioner has allotted plots in an equitable manner." It would also be relevant to extract para 10 of the impugned order, which reads as follows: "10. Another contention raised by the defendants was that no pathway was provided to the property in resurvey No. 159/7 and 159/6. The above said plots were actually shown as plot No.3 and 4 in Ext.C1 (b) plan. On scrutinising plot No.3 and 4 it is evident that plot No.2 in which house of 2nd respondent was situated near to plot No.3 and 4 and a thodu was in existence in between plot No.2 and 3. Commissioner had already set apart a portion for pathway as plot No.9, 16, 14, 13, 15 and 9 as the way to the portion for pathway plots allotted to plaintiff in Ext.C1 (b) plan. Ext.C1 (b) plan shows that access to plot No.2 is possible from the said pathway and through plot No.2 the respondents can have access to plot No.3 and 4 by crossing the thodu. So the contention of respondents that there existed no access to plot No.3 and 4 cannot be accepted. Ext.C1 (b) plan shows that access to plot No.2 is possible from the said pathway and through plot No.2 the respondents can have access to plot No.3 and 4 by crossing the thodu. So the contention of respondents that there existed no access to plot No.3 and 4 cannot be accepted. On considering the entire allotment this court is satisfied that commission report need not be set aside on the grounds of not providing any separate pathway to plot No.3 and 4.” The above extracted portions of the order would clearly show that the contentions aired had engaged the attention of the learned judge and the same were specifically considered and addressed by the court below. The challenge thus is essentially regarding the factual correctness of the conclusions arrived at by the learned judge. It is trite as laid down in Jai Singh v. Muncipal Corporation of Delhi [ (2010) 9 SCC 385 ] , by the Hon’ble Supreme Court that powers under Article 227 of the Constitution of India , has to be exercised with great circumspection and care. The Hon’ble Supreme Court had explaining the same pithily held as follows: “..undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. In a similar vein, in K.V.S.Ram v. Bangalore Metropolitan Transport Corporation [ (2015) 12 SCC 39 ], the Hon’ble Supreme Court held that in exercise of the power of superintendence under Article 227 of the Constitution of India , the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. In T.M.Leela v. P.K Vasu [2025 SCC OnLine Ker 888] , this Court had held that: “ 21. The power under Article 227 of the Constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law and would be exercised most sparingly in cases where grave injustice would be done unless the High Court interferes. It cannot be used as an appellate or revisional power. 22. The supervisory jurisdiction is not available to correct mere errors of fact or law unless the following requirements are satisfied— (1) the error is manifest or apparent on the face of the proceeding, such as when it is based on clear ignorance or utter disregard of the provisions of law; and (2) a grave injustice or gross failure of justice occasioned thereby.” It is thus trite that in exercise of its jurisdiction under Article 227 of the Constitution of India , cannot re-appreciate the facts or act as an appellate court over the findings of the court below. While rendering Exhibit P6 order which is impugned in this O.P.(C) the court below had not only addressed the specific grievance put forth by the petitioners in this O.P.(C) regarding allotment and had also scrutinised the modus adopted by the Commissioner and the reasoning provided for such allotment. While rendering Exhibit P6 order which is impugned in this O.P.(C) the court below had not only addressed the specific grievance put forth by the petitioners in this O.P.(C) regarding allotment and had also scrutinised the modus adopted by the Commissioner and the reasoning provided for such allotment. In Exhibit P6 order, the only defect noted in the Commission report by the court below was regarding valuation, and the Advocate Commissioner was accordingly directed to file an additional report. It is noted that in pursuance of such direction an additional report dated 23.03.2021 has already been filed by the Advocate Commissioner. The present O.P.(C) has been instituted thereafter raising objections as enumerated above. The contentions raised in this O.P.(C) specifically concerns the alleged the wrong appreciation of evidence, the various other options that were purportedly available before the Advocate Commissioner which the Court below ought to have taken note of, the alleged necessity for fresh survey on the basis of fact situation etc. which fall squarely beyond the power of this court under Article 227 of the Constitution to intervene or correct. As laid down in the high value precedents mentioned above, the power under Article 227 is supervisory in nature and can be exercised only where the impugned order suffers from manifest illegality, patent perversity, gross miscarriage of justice, or clear violation of settled principles of law or natural justice. Since no such circumstance has been shown to arise in the present case, the impugned order does not warrant interference. No patent illegality or manifest perversity in Exhibit P6 order requiring interference by this Court under Article 227 of the Constitution is found. O.P.(C) fails and it is dismissed. All I.As are closed.