IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 10002 of 2009(O) --------------------------------------- [OS.NO.4/1965 OF IIND ADDL.SUB COURT,THIRUVANANTHAPURAM'] .................... PETITIONER: ------------------- JANARDHANAN CHETTIAR, S/O.CHELLAPPAN CHETTIAR, T.C.76/698, CHAITHANYA, ANAYARA, KADAKAMBALLI VILLAGE, THIRUVANANTHAPURAM. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADV.SRI.S.SUJIN. RESPONDENTS: ------------------------ 1. MOHAMMED ABDUL MOHAMMED BASHIR, RESIDING AT VILAYIL VEEDU, KOZHIRACHIVILAKAMAYA IDAYILA VEEDU, IDAVA DESOM, IDAVA VILLAGE. 2. SAINABA BEEVI LAILA BEEVI, RESIDING AT VILAYIL VEEDU, KOZHIRACHIVILAKAMAYA IDAYILA VEEDU, IDAVA DESOM, IDAVA VILLAGE. 3. ABDUL REHUMANKUNJU, NASARUDEEN, T.C.NO.12/705, VAZHUTHACAUD, CHENGAZHASSERI VILLAGE, RESIDING AT VILAYIL VEEDU, KOZHIRACHIVILAKAMAYA IDAYILA VEEDU, IDAVA DESOM, IDAVA VILLAGE. 4. MAIMOONUMMAL MARIYAKUTTY, RESIDING AT VILAYIL VEEDU, KOZHIRACHIVILAKAMAYA IDAYILA VEEDU, IDAVA DESOM, IDAVA VILLAGE. 5. MOOSAKUNJU HILAL, RESIDING AT VILAYIL VEEDU, IDAVA DESOM, IDAVA VILLAGE. W.P.(C). NO.10002/2009-O: 6. FATHIMA NAJIMUNNISA, RESIDING AT VILAYIL VEEDU, IDAVA DESOM, IDAVA VILLAGE. 7. FATHIMA ROOLIYA BEEGOM, RESIDING IN VILAYIL VEEDU, IDAVA DESOM, IDAVA VILLAGE. 8. SARADAMANY, D/O.VISALAKSHY, THOPPU VEEDU, T.C.30/1603, PETTAH, VANCHIYOOR VILLAGE. 9. LEELA, D/O.SARADAMANY, THOPPU VEEDU, T.C.30/1603, PETTAH, VANCHIYOOR VILLAGE. 10. CHANDRASEKHARAN, S/O.NARAYANA PILLAI, RESIDING AT T.C.30/2033, PUTHUVAL VEEDU, KADAKAMPALLY VILLAGE, ANAYARA, THIRUVANANTHAPURAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2010 ALONG WITH W.P.(C) NOS. 4778 OF 2009 AND 13375 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ----------------------------------------------------------- WP(C) Nos.4778, 10002 & 13375 of 2009 ----------------------------------------------------------- Dated 6th April 2010 Judgment The issue that arises for consideration in WP(C) Nos.4778/09 and 13375/09 is identical and the issue that arises for consideration in WP(C) No.10002/09 is connected to the issue involved in the other two Writ Petitions. Hence these petitions are disposed of by this common Judgment. 2. For the purpose of this Judgment, the facts and exhibits in WP(C) No.13375/09 are being referred to. The matter arises out of a partition suit. Initially, OS No.4/65 was filed before the Sub Court, Thiruvananthupuram. The petitioner in WP(C) Nos.4778/09 and 13375/09 are the legal heirs of the third defendant in the suit. In the suit, there was a compromise entered into between the parties. It appears that the suit was withdrawn. This Court is given to understand that there WPC 13375/09 & connected cases 2 were two other suits, namely OS Nos.85 and 89 of 1971, relating to the very same matter. It is sufficient to say that ultimately, the compromise entered into between the parties was accepted and a preliminary decree was passed in it. The matter was carried in appeal before this Court and this Court also approved the compromise which is produced as Ext.P11 in the Petition. 3. In OS Nos.85 and 89/71, the Receiver had taken possession of the properties. The earlier Receiver was discharged and the first respondent herein was appointed as the Receiver. He took charge of his office. 4. In the final decree, the properties were divided into A to E schedules and as far as the third defendant and other defendants are concerned, they were given A schedule Items 1 to 3. The other sharers were given the other items of properties. The petitioners who are the legal heirs of the third defendant would point out that the rest of the sharers have taken possession of their allotted shares of properties and the petitioner before the Court below WPC 13375/09 & connected cases 3 through their Power of Attorney Holder, sought delivery of the items set apart to D3. The petitioner filed Ext.P1 IA No.2739/08 praying to discharge the Receiver. By Ext.P3 order dated 10.07.2008, the Court below observed that the Receiver was not certain whether he has taken possession of the properties, the delivery of which were sought by the petitioner and others. However, the said Court directed that the properties over which claims were laid by the petitioner and others were directed to be handed over to them. The Power of Attorney Holder filed a petition before the Receiver, giving all the details with regard to the properties to be handed over by the Receiver. Copy of the said petition is produced as Ext.P4. Though the Receiver received the schedule of properties to be handed over to the petitioner and others, he did nothing thereafter. Therefore, the petitioner approached this Court by filing WP (C) No.36888/08, praying for a direction to be issued to the Receiver to hand over the properties. This Court passed an order whereby the Registry was called upon to WPC 13375/09 & connected cases 4 get a report from the Second Additional Sub Court, Thiruvananthapuram as to whether the order dated 10.07.2008 in IA No.2739/08 in OS No.4/65 has been complied with or not and if it is not complied with, to give the reasons for not doing so. While the Writ Petition was pending before this Court, the Receiver immediately delivered the properties as per order dated 10.07.2008 in IA No.2739/08. Since the properties were delivered, the petitioner did not press the Writ Petition before this Court. Ext.P8 is the document which says that the properties were delivered to the Power of Attorney Holder of the petitioner and others and delivery of the same was taken by the Power of Attorney Holder. 5. The petitioner would point out that to their utter dismay, without hearing them or even without informing them, the Second Additional Sub Court, Thiruvananthapuram passed Ext.P9 order dated 23.01.2009, the relevant portion of which reads as follows : WPC 13375/09 & connected cases 5 “Power of Attorney Holder not present. Heard the counter petitioners. Order dated 10.07.2008 is kept in abeyance. Receiver is directed to retain possession of the property. Matter will be decided after taking evidence, hearing maintainability etc.” 6. The grievance of the petitioner is that it was without hearing him and others that the above said order has been passed and there was no justification for doing so. The Court below had omitted to note that as per the kaicheet produced as Ext.P8 and filed before Court, the Receiver had stated that the properties had already been delivered to the Power of Attorney Holder of the petitioner and others. Ext.P9 was followed by Ext.P10 order issued by the Receiver informing that he is taking back the property delivered to the petitioner and others. 7. It is stated in the petition that Ext.P16 application is filed by one Mohammed Fathima claiming right over the properties involved in these proceedings. She sought to get herself impleaded in the proceedings and WPC 13375/09 & connected cases 6 opposed the delivery of the properties to the petitioner and others. That petition is still pending. Since the impleading petition filed by her before the court below was not allowed, she is not made a party to the present proceedings. 8. The learned counsel for the petitioner pointed out that the Court below had no justification in passing Ext.P9 order. Even assuming the Power of Attorney Holder had failed to appear, that was not a ground to direct the Receiver to retain the property even after the kaicheet, showing that the property had been delivered to the parties had been filed before the Court by the Receiver. The learned counsel also pointed out that the Receiver was not justified in directing the parties to surrender the property to him and that his so called act of taking back possession was uncalled for. The learned counsel further pointed out that all the other sharers have taken the shares allotted to them and it was only for the legal heirs of the third defendant to take delivery of the property alloted to the third defendant and their children. They obtained delivery WPC 13375/09 & connected cases 7 through court and there was no justification in taking back the property. 9. On going through Exts.P9 and P10, it is seen that the Receiver seeks to take back possession of the property in Kadakampally village. It is interesting to note that Ext.P9 order directs the Receiver to retain possession of the property. When that order was communicated to the Receiver, normally and usually, he should have informed the Court that the properties have already been delivered and therefore, there was no question of retaining the property. Instead, he went on to issue a notice to the petitioner, saying that he is taking back the property for which he had no power. He ought to have informed the court below which passed the order directing to retain possession of property that it is not possible to do so and sought appropriate orders. He had no justification in simply issuing a communication to the petitioner, saying that he is taking back the properties delivered to the petitioner. From Ext.P9 order, it is not discernible as to the reason which WPC 13375/09 & connected cases 8 prompted the court below to issue such an order. There is nothing to indicate that the notice was issued to the petitioner or others or they were heard before passing the said order. One must remember that the properties had been delivered as per Ext.P8 kaicheet dated 01.01.2009. If the Court had felt that there was something wrong with the delivery of the property to the petitioner and others, notice should have been issued to them and they should have been heard in the matter. Ext.P9 order passed flouting the procedural law, cannot be sustained. Equally unsustainable is Ext.P10 communication. 10. The petitioner has stated before this Court that the properties are still with the Power of Attorney Holder of the petitioner and others and he has not handed over possession of the property to the Receiver. In the light of the fact that Ext.P9 order has been passed without notice to the petitioner and others and without hearing them, the said order cannot be sustained. Ext.P10, being a consequential proceedings, also cannot be sustained. WPC 13375/09 & connected cases 9 11. As far as WP(C) No.10002/09 is concerned, the petitioner in the petition has filed two petitions before the Court below with reference to one of the properties with respect to which certain items of properties which were delivered to the petitioner in the other two Writ Petitions. It is pointed out by him that Plaint A schedule item Nos.455 to 473 are located in Kadakampalli village. He claimed to be in exclusive possession of 9 cents in Plaint A schedule Item No.460 and 54 cents in Item No.461 by virtue of Registered Sale Deed Nos.3516 dated 22.09.1979. 42.500 cents in item No.457 in Plaint A schedule, 39 cents in item No.459 and 44 cents in Item No.461 are possessed by the 8th respondent in WP(C) No.10002/09. He claims right by virtue of various sale deeds. It is claimed by the petitioner that even though a Receiver was appointed in the partition suit, he has not taken possession of the properties possessed by the petitioner. His grievance is that recently, a person named Jayakumar, who is claimed to be the Power of Attorney Holder of the petitioners in the other two WPC 13375/09 & connected cases 10 Petitions, filed an application for delivery of the properties including the property held by him. When he came to know about the same, he preferred a petition. It will be first noted that the petitioners in the two Writ Petitions mentioned above are not parties to WP(C) No.10002/09. It would appear that the claim is in respect of the properties which appear to have been delivered to the petitioners in the other two Writ Petitions as per Ext.P8 kaicheet dt.01.01.2009. Whatever that be, since the petitioner has raised a claim with reference to the items of properties, the Court below has to adjudicate upon it and appropriate orders will have to be passed. In the result, these Writ Petitions are disposed of as follows : 1. Exts.P9 and P10 in WP(C) No.13375/09 stand quashed. 2. The Court below may dispose of Exts.P6 and P7 Interlocutory Applications filed by the petitioner in WP (C) No.10002/09 in accordance with law after affording an opportunity to all concerned to place their contentions WPC 13375/09 & connected cases 11 before the Court below. P.BHAVADASAN, JUDGE sta WPC 13375/09 & connected cases 12