Kerala High Court
M.A.David vs Sara on 11 December, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
WEDNESDAY, THE 21ST DAY OF MARCH 2012/1ST CHAITHRA 1934
OP(C).No. 921 of 2012 (O)
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OS.125/1977 of ADDL.SUB COURT, IRINJALAKUDA
PETITIONER(S):
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1. M.A.DAVID, AGED 77 YEARS
S/O LATE. ANTONY, MANJALI HOUSE, THALAKOTTUKARA
THALAPPILLY TALUK, THRISSUR.
2. MARY, , AGED 50 YEARS
W/O YACOB, MANJALI HOUSE, AMBALLOOR VILLAGE
MUKUNDAPURAM TALUK, MANNUMPETTA DESOM, THRISSUR.
BY ADVS.SRI.G.D.PANICKER
SMT.JEENA JOSEPH
RESPONDENT(S):
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SARA,, AGED 59 YEARS
W/O VAREED, CHIRAMEL, MUNDOOR DESOM
ANJOOR VILLAGE, THRISSUR DISTRICT, PIN-680 541.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21-03-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No.921 of 2012 (O)
APPENDIX
PETITIONER'S APPENDIX:
EXT.P1 TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE
COMMISSIONER DATED 11-12-2008.
EXT.P2 TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE RECEIVER
STATING THAT HE HAS TAKEN THE CUSTODY OF THE PROPERTIES ON
28-07-2011.
EXT.P3 TRUE COPY OF THE I.A NO.5735/2011 FILED BY THE RESPONDENT.
EXT.P4 TRUE COPY OF THE ORDER IN I.A NO.5735/2011 SERVED ON THE
PETITIONER ON 14-02-2012.
EXT.P5 TRUE COPY OF THE ORDER DATED 28-01-2012 IN I.A NO.124/2012.
RESPONDENT'S EXHIBITS: NIL
//TRUE COPY//
P.A TO JUDGE
S.S.SATHEESACHANDRAN, J.
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O.P.(C) No.921 OF 2012
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Dated this the 21st day of March, 2012
JUDGMENT
Challenge in the Original Petition is against Exts.P4 and P5 orders passed by the Additional Sub Judge, Irinjalakuda in the final decree proceedings of a suit for partition, numbered as O.S No.125/1977. The advocate commissioner deputed during the final decree proceedings, after identifying and measuring the properties, has fixed the property marked as 'C' schedule in his plan towards the share of the present petitioner. There are some valuable trees, a teak tree and three jack fruit trees, in that property, the value of which as per the terms of the preliminary decree was liable to be shared as among the sharers. So far as the value of the teak tree fixed at `.1,00,000/-, the petitioner had no objection, but, so far as the value over the jack fruit trees fixed by the advocate commissioner the petitioner raised objection that it was excessive and trees all of them together would fetch only a sum of `.10,000/-. The 7th defendant in the suit came forward to take all the jack fruit trees at the rate fixed by the advocate commissioner, a sum of `.42,500/-. Accepting the offer made by O.P.(C) No.921/2011 2 the 7th, defendant the court passed an order thereof. Pursuant thereto, the impugned orders Exts.P4 and P5 have been passed by the court. Propriety, legality and correctness of those orders are assailed by the petitioner setting forth a case that the three jack fruit trees would fetch much more than the value fixed by the advocate commissioner for which the 7th defendant has been allowed to cut and remove them. The learned counsel for the petitioner would submit that the objection taken by the petitioner at an earlier point of time questioning the value fixed over such trees by the advocate commissioner that it would fetch less than `.10,000.- was nearly two years ago and thereafter there is substantial escalation of price over the value of timber. I cannot accept that submission as a sufficient ground enabling the petitioner to impeach Exts.P4 and P5 orders passed by the learned Sub Judge, that too invoking the visitorial jurisdiction of this court under Article 227 of the Constitution of India.
Original Petition lacks merit and it is dismissed.
vdv S.S.SATHEESACHANDRAN, JUDGE