IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI TH TUESDAY, THE 15 DAY OF OCTOBER 2024 / 23RD ASWINA, 1946 OP(C) NO. 2362 OF 2022 JUDGMENT IN OS NO.3 OF 2018 OF ASSISTANT SESSIONS COURT/ADDITIONAL SUB COURT,NORTH PARAVUR PETITIONERS:

1 MARY RONALD @ SOBHA AGED 61 YEARS,W/O RONALD ANTONY & D/O. LATE C.P.ANTONY, RESIDING AT BLK 234A, SERANGOON AVE-2, #05-135, SINGAPORE, PIN - 551232

2 RANI XAVIER @ NIRMALA AGED 59 YEARS W/O C.M.XAVIER AND D/O LATE C P ANTONY, CHOOLAKKAL HOUSE, SPICES STREET LISSIE ROAD, ERNAKULAM, KOCHI, PIN - 682017

3 C.A JOY @ JOEMON AGED 55 YEARS S/O LATE C.P.ANTONY, CHAKKIATH HOUSE, AYROOR, AYROOR P.O, KURUMASSERY (VIA), ERNAKULAM DISTRICT, PIN -

683579

4 MARTIN ANTONY@ ELIZEBATH AGED 53 YEARS W/O A.V MARTIN, AND D/O. LATE C. ANTONY, ANTIKAKD HOUSE, ELOOR FERRY, UDYOGAMANDAL P.O, ERNAKULAM DISTRICT, PIN - 683501

5 JULIE MARTIN @ JULIET AGED 46 YEARS W/O M.D. MARTIN AND D/O LATE C.P.ANTONY, MOOTHEDAN HOUSE, AMBATTUKAVU, ALUVA, PIN - 683101 BY ADV A.T.ANILKUMAR RESPONDENTS:

1 C A PAUL @ BABY, AGED 65 YEARS S/O LATE C.P. ANTONY, CHAKKIATH HOUSE, JULISTAN, N.PARAVUR, ERNAKULAM DISTRICT,, PIN - 683513

2 C.A. PETER @ RAJAN AGED 63 YEARS , S/O LATE C.P. ANTONY, CHAKKIATH HOUSE, HOUSE NO.

29/78 OF PARAVUR MUNICIPALITY, NEAR ANDISSERYTEMPLE, NORTH PARAVUR, ERNAKULAM DISTRICT,, PIN - 683513

3 ANTONY MATHEW @ SANTHOSH AGED 57 YEARS ADVOCATE, S/O LATE C.P. ANTONY, CHAKKIATH HOUSE, AYROOR, AYROOR P O, KURUMASSERY (VIA), ERNAKULAM DISTRICT,PIN - 683101 BY ADV K.S.BABU THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

(Dated this the 15^th day of October, 2024)

The respondents filed O.S.No.3/2018 for partition of properties having an extent of 2.17 acres. The plaintiffs and defendants are siblings. The property sought to be partitioned belongs to the plaintiffs' mother and the mother died intestate. Hence, the suit was filed. The defendants filed a written statement wherein the extent of the property was disputed. Thereafter, the parties went to trial. During cross-examination of PW1, there was a dispute regarding identity of the property, and the court deferred the trial and directed the plaintiff to file a proper petition to identify the property after surveying the same. The plaintiff filed I.A.No.1/2021 to measure and identify the property with the help of the Taluk Surveyor based on revenue records, title documents and prior title deeds.

2. The said I.A. was allowed on 06.01.2021, and the Advocate Commissioner and Surveyor were directed to measure the property and to file a report. During the inspection on 20.06.2022, the 3^rd petitioner herein submitted a work memo to the Advocate Commissioner. Though the Advocate Commissioner accepted the request, he did not consider the request in the work memo. Therefore, the petitioner filed I.A.No.4/2022 seeking a direction to the Advocate Commissioner to consider the work memo at the time of inspection. The respondents filed an objection to the said application, contending that the measurement was already complete as early as 26.01.2022, and the work memo was submitted only on 20.06.2022 and prayed for the dismissal of the application.

4. The Learned Sub Judge, by Ext.P8, dismissed the said application. It is challenging the said order that the petitioners have come before this court under Article 227 of the Constitution of India.

5. The main contention of the petitioner is that, the properties belong to the father of the plaintiffs, defendants and their mother is lying contiguously and in the work memo they had sought to identify the property belonging to the father, which was given to the petitioners from the properties of the mother. The said property is sought to be partitioned in the suit. The Court dismissed the application for the reason that the work memo was submitted only on 20.06.2022 before the Advocate Commissioner, and the inspection was conducted as early as 26.01.2022. Th