Surendran vs Vijayamma and Thankamony

Thomas P. Joseph, J.

1.Plaintiff in O.S. No. 371 of 2006 of the court of learned Munsiff, Kayamkulam, and Appellant in A.S. No. 79 of 2010 of the court of learned First Additional District Judge, Mavelikkara is the Petitioner before me challenging Ext.P4, order on Ext.P2, I.A. No. 231 of 2011 (in A.S. No. 79 of 2010). By the said order learned First Additional District Judge has permitted Respondents to thatch the ''kottilpura'' which according to the Respondents is situated in item III of plaint schedule which is sought to be partitioned. Petitioner would contend that there is No. such kottilpura in item III and that any structure in existence is in item I

It is contended by learned Counsel for Petitioner that attempt of Respondents is to make it appear that they have some claim over item I regarding which Petitioner has not sought for partition, nor any relief is sought by Respondents also. It is pointed out that the prayer for partition is only with respect to item III and that a reading of Ext.P4, order would show that even learned Additional District Judge was confused as to where exactly the structure (kottilpura) is situated, whether it is in item I or item III. It is further pointed out that even the assessment number of the structure is not mentioned by Respondents in Ext.P2, application.

Learned Counsel for Respondents contends that Petitioner is confused about identity of properties and he himself is not convinced where exactly the structure is situated, whether in item III or item I. Learned Counsel has invited my attention to paragraph 8 of the judgment of trial court.

On going through the discussion made by learned Munsiff in paragraph 8 of the trial court judgment and on hearing counsel on both sides it appears that there is some confusion as to where exactly the kottilpura (thatching of which was permitted) is situated, whether it is in item III sought to be partitioned or in item I over which Petitioner claimed absolute title and possession. Before ascertaining that I do not think it is appropriate to permit Respondents to carry out thatching of the roof as permitted by the learned Additional District Judge.

In the above circumstances it appears to me that the appropriate course is to direct learned Additional District Judge to dispose of A.S. No. 79 of 2010 as early as possible and in the meantime to direct that Ext.P4, order will stand in abeyance. Learned Counsel on both sides have submitted that the appeal itself could be disposed of since the parties in the appeal have entered appearance and what is required is only to hear and dispose of the appeal.

Resultantly this Original Petition is disposed of in the following lines:

i. Learned First Additional District Judge, Mavelikkara is directed dispose of A.S. No. 79 of 2010 as early as possible.

ii. Ext.P4, order dated May 31, 2011 on Ext.P2, application (I.A. No. 231 of 2011 in A.S. No. 79 of 2010) will stand in abeyance until disposal of the appeal.

iii. Decision on Ext.P2, application (.A. No. 231 of 2011) shall follow the decision which learned First Additional District Judge takes in the appeal (A.S. No. 79 of 2010).

I.A. No. 9554 of 2011 will stand dismissed.