P.K. Rajan Vs. Cicilykutty and RishIn Raj - Court Judgment

Excerpt:
- r. basant, j.1. the husband is the petitioner. there is acrimony between the spouses. a preliminary decree for partition has been passed directing partition of an item of property with a house situated therein owned jointly in the name of the spouses. final decree petition was filed. a commissioner was appointed. the commissioner submitted her report and plan marked as exts.c1 and c1(a). objections were raised by the respondent/wife against the report and plan submitted by the commissioner. the court adduced evidence and thereupon passed the impugned order. by the impugned order, which evidently is an interim order, the family court sent the matter back to the commissioner with directions to file an additional report.2. the petitioner claims to be aggrieved by the impugned order. he prays that the extraordinary constitutional jurisdiction available to this court under article 227 of the constitution of india may be invoked to interfere with the impugned order, which is not a revisable order.3. records were called for. we have been taken through the details of the dispute. we do note that a lot of precious time has been wasted before this court in the attempt to persuade the parties to come to a harmonious settlement. at long last, this court is finally informed that the parties have not been able to come to any terms. it is accordingly that the matter has been heard again today.4. the property sought to be partitioned is identified as plot abcd in the sketch ext.c1(a). a residential building marked as pqrs in ext.c1(a) is situated in the property. the property has a long rectangular shape. the house is situated towards the front, i.e. the eastern side of the property. a public road abuts the property on the east. the commissioner suggested vertical lengthwise partition of the property allotting exactly identical extent of land on both sides to the contestants. the middle line separating the two properties is marked as the line efg. that line runs vertically lengthwise through the house in the property. work area, kitchen, dining room and guest room lie on one side of the line efg whereas three bed rooms, one bathroom and latrine lie on the other side of the line efg. the court below evidently, and rightly we feel, was not too satisfied about the proposal made by the commissioner. the court below wanted the commissioner, inter alia, to attempt partition by allotting the house with some land to one party and the entire remaining land to the other. that direction is contained in the impugned order.5. the learned counsel for the petitioner/husband assails the impugned order. what is his grievance? according to him, the partition attempted by the commissioner is fair, just and equitable and the same should have been accepted by the court below. less said about this contention the better. we feel that the court below was absolutely justified in not meekly accepting the suggestion of the commissioner that property on either side of the line efg can be alloted to the rival contestants. that was a very artificial and mindless attempt made by the commissioner. we are satisfied that alternatives have to be looked for and accepted, if possible. the court below appears to be justified in directing the commissioner to explore the possibility of the entire house with minimal land around it being allotted to one party and the entire remaining land allotted to the other with reasonable access from the road to that property. viewed from any angle, we are unable to agree that the direction of the court below is improper, incorrect, unacceptable and much less perverse. it cannot be said to be inequitable or unjust. we are satisfied that there are absolutely no circumstances that can persuade us to invoke the extraordinary constitutional jurisdiction under article 227 of the constitution of india to interfere with the impugned order. the challenge fails.6. the records of the court below have been seen. we have gone through the records and ascertained the painful and traumatic disputes that remained between the parties all along. as we stated already, there has been wastage of precious time in this court also. we do, in these circumstances, feel that while dismissing the writ petition, there must be a direction to the court below to dispose of the matter as expeditiously as possible, at any rate, within a period of six months from this date. the court below must consider all the relevant circumstances and attempt an equitable partition. no option need be reckoned as foreclosed by the court below. parties shall be at liberty to point out all relevant circumstances and to make all suggestions. the learned counsel for the petitioner prays and we observe that if no other effective alternative is available, the court below can even consider the option of sale of the property in public or private auction and allotment of amounts to either side. we intend only to mention that no option need be reckoned as foreclosed by the court below.7. in the result, this writ petition is dismissed. the registry shall forthwith sent back the records to the court below. parties shall appear before the court below on 07/06/2010 to continue the proceedings. the registry shall ensure that the records reach the court below before 07/06/2010.8. compliance with the direction for time bound disposal shall be reported to this court.