IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 WP(C).No. 17719 of 2009(O) -------------------------- (AGAINST THE ORDER DTD.28/5/2009 PASSED IN E.P.No.186/2006 IN O.S.No.76/1986, ON THE FILE OF MUNSIFF'S COURT, CHITTUR) PETITIONER: RESPONDENT NO.3/JUDGMENT DEBTOR NO.3 --------------------------------------------------- MUHAMMED HANEEFA RAWTHER, S/O.VELLA @ SHEIK MUSTHAFA RAWTHER, VANDITHAVALAM, PATTANCHERRY VILLAGE, CHITTUR TALUK. BY ADV. SRI.SAJAN VARGHEESE K. RESPONDENTS: PETITIONER/DECREE HOLDER --------------------------------------- 1. ABDUL MAJEED, S/O.VELLA @ SHEIK MUSTHAFA RAWTHER, VANDITHAVALAM, PATTANCHERRY VILLAGE, CHITTUR TALUK. 2. CHELLA @ KATTUVA RAWTHER, S/O.VELLA @ SHEIK MUSTHAFA RAWTHER, PLACHIMADA, MOOLATHARA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 3. SHEIK ABDUL KHADER RAWTHER, S/O.VELLA @ SHEIK MUSTHAFA RAWTHER, VANDITHAVALAM, PATTANCHERRY VILLAGE, CHITTUR TALUK. ADV. SRI.SANTHEEP ANKARATH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17719 of 2009(O) APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1 : Decree dtd.2/2/1990 passed in O.S.No.76/1986 on the file of Munsiff's Court, Chittur. EXHIBIT P2 : Final decree dtd.13/10/2000 passed in I.A.No.1462/94 in O.S.No.76/1986, on the file of Munsiff's Court, Chittur. EXHIBIT P3 : Commission Report dtd.31/3/2000 along with the sketch produced therein in I.A.No.1462/94 in O.S. No.76/1986 on the file of Munsiff's Court, Chittur. EXHIBIT P4 : Commission Report dtd.14/12/2007along with the sketch produced in FDIA No.1462/94 in E.P.No.186/06 in O.S.No.76/1986 on the file of Munsiff's Court, Chittur. EXHIBIT P5 : Objection submitted to Ext.P4 commission report by the respondent No.1. EXHIBIT P6 : Objection filed by the petitioner herein to Ext.P4. EXHIBIT P7 : Order dtd.28/5/2009 passed in EP.No.186/2006 in O.S.No.76/1986 on the file of Munsiff's Court, Chittur. RESPONDENTS' EXHIBITS:- Nil True copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.17719 of 2009 --------------------------------------- Dated this 24th day of May, 2010 JUDGMENT The parties hereto are children of late Asyumma who expired in the year 1984. Then came O.S.No.76 of 1986 for partition of properties. Ext.B1, preliminary decree for partition was passed dividing properties among the parties thereto. In the final decree proceedings Advocate Commissioner inspected the property and submitted Ext.P3, report and plan. Following that a final decree was passed on 03-10-2000. Then started execution of the final decree. As per Ext.P3 Commissioner had allotted plot B to respondent No.1/plaintiff describing extent of that property as 19.75 cents and plots A, C and D to petitioner and respondent Nos.2 and 3. There was objection to Ext.P3 in that extent of B schedule stated is not correct, it is only 17.25 cents and not 19.75 cents as stated in Ext.P3. In the course of execution as per order dated 06-06-2007 Amin was deputed to measure the property. As per order dated 13-04-2007 on E.A.No.122 of 2007 there was an order for redelivery of 2 cents (from out of the 19.75 cents stated to be the extent of B schedule) to the petitioner holding that there is excess delivery. Amin returned the warrant stating that he is not W.P.C.No.17719 of 2009 : 2 : able to identify the property. Thereafter another Advocate Commissioner was appointed to inspect the property and he submitted Ext.P4, report after measuring the property with the assistance of Village Assistant. That was done as per the directions of this court in W.P.C.No.30187 of 2007. Both sides filed objection to Ext.P4, report (objections are Exts.P5 and P6). Vide Ext.P7, order the executing court found that total extent of plot B in Ext.P4 is 16.80 cents and not 19.75 cents as stated in Ext.P3 or 17.25 cents as contented by respondent No.1/plaintiff. So far as C schedule allotted to the petitioner is concerned, court found that the total extent is 27.25 cents and not 26.250 cents as stated in Ext.P3 and the final decree. Ext.P7, order is under challenge at the instance of petitioner. Learned counsel for petitioner has raised two contentions, firstly difference in the extent ascertained through the Advocate Commissioner in Ext.P4 (marked in Ext.P7 proceedings as Exts.C1 and C2, report and plan) does not reflect in the final decree in that there is no request to amend the final decree and hence executing court was not justified in accepting Exts.C1 and C2. The second objection is that when the entire property has been divided into four plots (A to D), direction contained in Ext.P3 is as regards delivery is only of plot B. Learned counsel for respondent No.1/plaintiff would contend that every W.P.C.No.17719 of 2009 : 3 : attempt is being made by petitioner who is in possession of the property to protract proceedings and that vide Ext.P6, petitioner had no serious objection to Exts.C1 and C2. Learned counsel has taken me through Ext.P6, copy of objection. 2. In Ext.P3, report extent of plot B now allotted to respondent No.1/plaintiff is stated as 19.75 cents though, according to respondent No.1/plaintiff its extent is only 17.25 cents and so far as plot C allotted to the petitioner is concerned, extent stated in the preliminary decree is 26.250 cents but, in Exts.C1 and C2 (Ext.P4) extent of plot B is ascertained and stated as 16.80 cents and the extent of plot C allotted to the petitioner is 27.25 cents instead of 26.250 cents. So far as extent of plot C is concerned, petitioner has no reason to complain since he gets one cent more than 26.250 cents. Now, his grievance is only regard extent of plot B. There also extent wise petitioner has no reason to complain since extent of plot B allotted to respondent No.1/plaintiff as per preliminary decree and final decree was 19.75 cents, which has now come down to 16.80 cents . 3. It is also to be remembered that so far as Exts.P3 and P4 to the extent of plot B is concerned, it is not disputed that there is no difference in the side measurements but there was some mistake in calculating the measurement and ascertaining the total W.P.C.No.17719 of 2009 : 4 : extent. Commissioner in Exts.C1 and C2 after measurement of the property with the assistance of Village Assistant has ascertained the total extent as 16.80 cents with the very same site measurements Ext.P3, preliminary decree and final decree. So far as plot C is concerned, between Exts.P3 and P4 there was some difference in the side measurements but as I stated above, petitioner is not aggrieved since he is getting one cent more than what is stated in Ext.P3, preliminary decree and final decree. 4. Now the objection raised by learned counsel for petitioner is that in Ext.P3, preliminary decree and final decree, extent of plot B is stated as 19.75 cents and that of plot C is stated as 26.250 cents going by Exts.C1 and C2 which has been accepted by the executing court. In Ext.P7, order extent of plot B is only 16.80 cents and that of plot C is 27.25 cents but no amendment is sought for or made for preliminary and final decree and hence there is a discrepancy regarding preliminary and final decree on the one part and Exts.C1 and C2 on the other. No doubt, what the learned counsel for petitioner stated is correct. But, it is seen that it is as per direction of this court in the judgment in W.P.C.No.30187 of 2007, notwithstanding extent of B and C schedules stated in Ext.P3 and preliminary and final decree that the executing court appointed Advocate Commissioner to measure W.P.C.No.17719 of 2009 : 5 : the property and get proper identification. The executing court also can identify the property by conducting measurement by appointing the Amin or other officer of the court. That is what executing court has done and as directed by this court in W.P.C.No.30187 of 2007. Moreover, Exts.C1 and C2 plan form part of the proceeding and hence in the light of Ext.P7, order apprehension of petitioner regarding discrepancy in the preliminary/final decree and Exts.C1 and C2 has been allayed. 5. The next objection is that when the entire property has been divided into four plots the executing court was concerned only with plot B and delivery of the other items has been deferred. It is not disputed that petitioner is in possession of plot C which is allotted to him as per the final decree. The other contesting respondents to whom plots A and D allotted are not aggrieved by Ext.P7 order. In Ext.P7, order executing court has directed only delivery of plot B. That does not in any way prejudice or affect the interest of petitioner. 6. As I stated above this is a case where after the final decree was passed, Commissioner and Amin had to go to the properties for several times for ascertaining the extent. It is said, the ordeal of Indian litigant starts in execution of the decree. The proceedings in execution of a decree passed as early as on 02-02- W.P.C.No.17719 of 2009 : 6 : 1990 followed by a final decree on 13-10-2000 has to come to an end. Ext.P7, order does not suffer from any illegality or manifest injustice requiring interference by this court under Section 227 of the Constitution. Resultantly the writ petition fails and it is accordingly dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-