JUDGMENT

SHAJI P. CHALY, J.

The captioned appeal is filed by the respondents in W.P.(C) No.

8224 of 2019, ie., the officials of the State, challenging the judgment of the learned single Judge dated 08.07.2019, whereby the writ petition was allowed and Ext.P4 order dated 16.10.2017 passed by the District Registrar General, Thrissur and P5 order dated 30.10.2018 of the Land Revenue Commissioner were set aside.

2. The District Registrar, Thrissur, as per Ext.P4 order dated

16.10.2017, found that Ext.P3 partition deed dated 05.08.2017 produced before Sub Registrar, Irinjalakuda would not come under the definition of ‘document of deed of partition’ and therefore, it cannot be considered as a deed of partition and the writ petitioner was directed to pay the stamp duty payable to the assignment deed, which order was upheld by the Land Revenue Commissioner in Ext. P5 order dated 30.10.2018. It was, thus, challenging the legality and correctness of the said orders, the writ petition was filed.

3. The learned single Judge has found that A schedule property admittedly is kept common as per Ext. P1 registered partition deed executed by and between the parties, and which property alone was again partitioned as per Ext. P3 partition deed dated 05.08.2017. It was further held that a physical form of partition of A schedule property may be difficult, but that does not mean that the parties cannot effect notional partition of the available property kept as common, and that in a partition the only requirement to be satisfied is existence of right for parties to enter into the partition.

4. It was further held that no part of the building which was partitioned among the parties as per Exhibit P1 partition is covered in Ext. P3 deed of partition and therefore, the only conclusion possible is that Ext. P3 deed only pertains to the A schedule property set apart as common as per Ext. P1 registered partition deed dated 06.04.2011. It was accordingly that Exts. P4 and P5 impugned orders were set aside and directed to treat Ext. P3 as a partition deed with, a consequential direction that if any excess payment is made, it shall be refunded to the writ petitioner.

5. Material facts for the disposal of the writ petition are as follows:

The writ petitioner/respondent and his siblings, Thomas, Devies, Pauly, Joseph, Elezabath and Jossy are the children born out of the wedlock of Devassy and Mary, who were in ownership and possession of 62 sq. meters of property comprised in Survey No. 309/1 of Irinjalakuda Village, 1.24 Ares of property in Survey No. 309/6, 44 sq.

meters of property in survey No. 309/6 and 37 sq. meters of property in Survey No. 1108/1 of Manavalassery Village.

6. According to the petitioner, the entire property has been lying as a single plot. Devassy died interstate and consequently, his wife Mary and their male children became successors to the estate of late Devassy, since the daughters Elezabath and Jossy released their rights over the properties in favour of their brothers. The children jointly constructed a three storied building in the property and thereafter, Ext. P1 partition deed was executed among the male children and the mother.

7. The case projected by the petitioner is that Ext. P1 partition deed only relates to the building situated in the properties scheduled to the deed of partition; that as is evident from Ext. P1 deed of partition, A schedule property was set apart in common for his wife Mary and the male children jointly, which according to the petitioner, is the land on which the building is situated. While so, Mary died on 14.10.2013, and thereafter, one of the sons namely Thomas also died and legal heirs of Thomas namely Pouly, his wife, son Ebin Thomas, and daughter Akhila succeeded to the B schedule covered by Ext. P1 registered deed of partition.

8. Thereafter, Devies—writ petitioner, and Joseph and Pauly along with the legal heirs of late Thomas effected Ext. P3 deed of partition, which according to the writ petitioner, i