Harun-ul-Rashid, J.@mdashPetition is filed under Article 227 of the Constitution of India. Ext.P5 order is under challenge. Ext.P5 order was passed by the learned Additional Munsiff Court, Kozhikode in I.A. Nos. 4251/2007 & 407/2008 in I.A. No. 3757/1991 in O.S. No. 74/1977. The petitioner in I.A. No. 4251/2007 alone filed this writ petition.
2. I.A. No. 4251/2007 is a petition for passing supplemental final decree. Petitioner is the 4th defendant in the suit. The civil court passed a preliminary decree effecting partition of the plaint schedule property into three equal parts. One out of three such shares was directed to be allotted to defendants 3-5 and 12-17 jointly. The petitioner in the I.A is one among the nine persons to whom 1/3 share of the property was allotted. Ext.P1 preliminary decree was passed on 28.9.1984. Subsequently, the plaintiffs in the suit applied for passing a final decree. The court as per the order dated 14.2.2005 in I.A. No. 3757/1991 passed a final decree. Plot A in Ext. C1(a) plan was allotted to the defendants 3-5 and 12-17.
3. I.A. No. 4251/2007 for passing a supplemental final decree was filed by the 4th defendant, who is a joint allottee, stating that her mother who is the 5th defendant in the suit expired and being the sole legal heir the right of the 5th defendant devolved upon the petitioner and therefore it has become necessary to allot the shares of defendants 4 & 5 in favour of the petitioner as per the final decree.
4. Preliminary and final decree has been passed in this case. There is no separate allotment of share in favour of the petitioner. He is one among the nine persons to whom 1/3 share of the property was jointly allotted. Preliminary decree directs division and allotment of the property into three. Pursuant to the preliminary decree, final decree was also passed dividing the property into three. As I said earlier, the petitioner is one among nine persons to whom 1/3 share of the property was allotted. Going by the preliminary decree she cannot make application for separate allotment of her share. The preliminary and final decree were passed. Now the present application filed stating that she got more extent of land due to the death of her mother and therefore allotment shall be made is without any substance. The remedy open to the party is either to enjoy the property in common allotted as per the preliminary and final decrees or else to seek partition and separate possession of her share.
5. The trial court rightly held that in such situation, the course of action open to the petitioner is to seek for partition among the sharers who got plot A. The court observed that the court will be entering into a partition of plot A in Ext.C1(a) which is not contemplated by the preliminary decree. The trial court rightly dismissed the application for passing a supplemental decree. For the reasons stated above, I find that the order passed by the trial court is not liable to be interfered with.
The writ petition stands dismissed.
