IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 CRP.No. 85 of 2009 AGAINST THE ORDER DATED 19/12/2008 IN I.A.NO.1392/2008 IN I.A. NO.149/2007 IN OS.NO.96/1986 OF SUB COURT, QUILANDY REVN. PETITIONERS: RESPONDENTS 14 & 15 1. T.K.KANNAN, S/O.NARAYANAN, THIYYARUKANDY HOUSE, MEPPAYUR AMSOM, DESOM. 2. IRULATTU PARKRUMAR, S/O.PAKRU, ARIKULAM. BY ADV. SRI.T.M.ABDUL LATHEEF SRI.P.ABDUL JALEEL RESPONDENTS: PETITIONERS AND RESPONDENTS 1 TO 13 & 16 TO 36 1. THIRUKKOTTE MADHAVA KURUP, S/O.BALAKRISHNAN NAIR, THAYYULLATHIL VEEDU, PUTHUR.P.O, VATAKARA. 2. AMMINI MADHAVAN, W/O.T.C.MADHAVA KURUP, 27-CUMBUN ROAD, BANGALORE. 3. LATHA KRISHNAN, D/O.T.C.MADHAVAN KURUP, 27-CUMBUN ROAD, BANGALORE. 4. ANITHA GILSA, D/O.T.C.MADHAVA KURUP, 27-CUMBUN ROAD, BANGALORE. 5. KOONATTATT SREEKUMAR, S/O.T.C.KUNHIKELU KURUP, KARAYAD.P.O, MEPPAYUR VIA, QUILANDY TALUK, KOZHIKODE DISTRICT. 6. KUNATTATTU HARIKUMAR, S/O.T.C.KUNHIKELU KURUP, KARAYAD.P.O, MEPPAYUR VIA, QUILANDY TALUK, KOZHIKODE DISTRICT. 7. T.C.KAMALAKSHY AMMA, W/O.T.V.N.KIDAVU, 162, 7TH AVENUE, ASHOK NAGAR, MADRAS-600083. 8. T.C.LEELAVATHY AMMA, W/O.T.K.B.KIDAVU, NO.15,BHARATHAMMAL ROAD, NANGKAMBAKAM, MADRAS-600034. 9. A.V.MADHAVIKUTTY AMMA, W/O.GOPALAKURUP, C/O.R.M.NAMBIAR, KRIPA, KUNNATHURMEDU, PALAKKAD-678013. 10. A.V.KISHORE, C/O.R.M.NAMBIAR, KRIPA, KUNNATHURMEDU, PALAKKAD-678013. 11. A.V.REMA BAI, C/O.R.M.NAMBIAR, KRIPA, KUNNATHURMEDU, PALAKKAD-678013. 12. A.V.RAGESH, C/O.R.M.NAMBIAR, KRIPA, KUNNATHURMEDU, PALAKKAD-678 013. 13. MEETHALECHALIL M.C.NARAYANAN, S/O.CHATHAKUTTY, MEPPAYUR.P.O,QUILANDY TALUK, KOZHIKODE DISTRICT. 14. ATHIKKOOTT KITTAN, S/O.BAPPU, MEPPAYUR.P.O,QUILANDY TALUK, KOZHIKODE DISTRICT. 15. A.M.SANTHA DEVI, W/O.BALAKURUP, FLAT NO.7, BLOCK B, MANJUSANKARA APARTMENTS, PRASANTH NAGAR, MOULAVI, HYDERABAD-500040. 16. T.SANTHA KUMAR, G.I.MEMADURGA RESIDENCY GUDDA COLONY, KANAMGARAM, HYDERABAD-500 050. 17. T.BABU, FLAT NO.7, BLOCK-B,MANJUSANKARA APARTMENTS, PRASANTH NAGAR, MOULAVI, HYDERABAD-500040. 18. A.M.SURESHAN,FLAT NO.22, 2ND FLOOR, SAPTHAGIRI RESIDENCY MALLIKARJUN NAGAR, OLD BHAVAN PALLI, SECANDERABAD-500011. 19. T.RAJEEVAN, HOUSE NO.394(MIG),3RD PHASE, K.P.H.B.COLONY, KUKKAD PALLI,HYDERABAD-500072. 20. A.M.VISWANATHAN, QRS NO.8/272,RAILWAY QUARTERS, MOULAVI, HYDERABAD-500 040. 21. A.M.ASHA MENON,PLOT NO.31,ROAD NO.7, TRIMURTHI COLONY, MAHENDRA HILLS, SECANDERABAD-500040. 22. ELAMBILATTU RAVINDRAN, S/O.NARAYANI AMMA P.O.KARYAD, QUILANDY TALUK, KOZHIKODE DISTRICT. 23. ELAMBILATTU KAMALA, D/O.NARAYANI AMMA, P.O.KARAYAD, QUILANDY TALUK, KOZHIKODE DIST. 24. M.OMANA AMMA, D/O.MADHAVI AMMA, NAGATH MEETHAL, P.O.KARAYAD, QUILANDY TALUK, KOZHIKODE DISTRICT. 25. KALIYATH MUHAMMED, S/O.BAVACHI, KALIYATH VEEDU, P.O.KARAYAD, QUILANDY TALUK, KOZHIKODE DISTRICT. 26. KADEESA EDACHERRY, D/O.MOOSA, EDACHERI KAIPURATH VEEDU, P.O.KARAYAD, QUILANDY TALUK, KOZHIKODE DISTRICT. 27. THIRIKKOTTE GOURI AMMA, D/O.BABY AMMA, THIRIKOTT VEEDU, CHEMMARATHOOR, ADAKKATHERU, VADAKARA. 28. THIRIKKOTTE VINODHAN, KAMALALAYAM, VISHNU MANGALAM, KALLACHI, VATAKARA. 29. THIRIKKOTTE MURALEEDHARAN, THIRIKKOTT HOUSE, CHEMMARATHOOR. P.O,ADAKKATHERU, VADAKARA. 30. THIRIKKOTTE SAJINDRAN,GRAMIN BANK, EDACHERRY, THIRIKOTT VEEDU, CHEMMARATHOOR, ADAKKATHERU, VADAKARA. 31. THIRIKKOTTE PARIMALA,W/O.RAMAKRISHNAN, KRISHNA VILASOM, KALLACHI, VATAKARA. 32. THIRIKOTTE BINDU, D/O.BABY AMMA, THIRIKKOTT VEEDU, CHEMMARATHOOR, ADAKKATHERU, VADAKARA. 33. THIRIKKOTTE SULOCHANA,W/O.DINAKARAN, FLAT NO.7. BLOCK B, MANJUSANKARA APARTMENTS, PRASANTH NAGAR, MOULAVI, HYDERABAD-500040. 34. THIRIKKOTTE SUDEESH, FLAT NO.7,BLOCK B, MANJUSANKARA APARTMENTS, PRASANTH NAGAR, MOULAVI, HYDERABAD-500040. 35. THIRIKKOTTE DIVYA, FLAT NO.7, BLOCK B, MANJUSANKARA APARTMENTS, PRASANTH NAGAR, MOULAVI, HYDERABAD-500040. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ C.R.P. NO. 85 OF 2009 A ------------------------------------------------------ Dated this the 9th February, 2009 O R D E R The petitioners are respondents 14 and 15 in I.A.No.149 of 2007 in O.S.No.96 of 1986, on the file of the Court of the Subordinate Judge of Quilandy, the I.A. being one for passing the final decree for partition. 2. The first respondent filed the suit for partition. The trial court passed the preliminary decree dated 30.10.1989, holding that the plaint schedule item Nos.1 to 4 shall be divided into six shares, that the petitioners are entitled to two such shares, defendants 13 to 20 are entitled to one share and defendants 1 to 8 are entitled to the remaining three shares. The trial court also held that the plaintiffs and the supporting defendants are entitled to their share of future mesne profits from the date of plaint. Defendants 1 to 8 were made liable for the same. The parties were relegated to the final decree stage for considering the equities and reservation. 3. The petitioners are the assignees of defendants 1 to 8. Challenging the preliminary decree, defendants 1, 3, 4, 9 to 12, 27 and 28 filed A.S.No.188 of 1990 before this Court. That Appeal was allowed and C.R.P. NO. 85 OF 2009 A :: 2 :: the suit was dismissed as per the judgment and decree dated 29.6.2001. The plaintiff filed Civil Appeal No.7424 of 2002 before the Honourable Supreme Court, which was allowed as per the judgment dated 5.4.2006. It is stated that the petitioners herein have filed an application for modification before the Honourable Supreme Court and that application is pending. 4. In the final decree proceedings, a Commissioner was appointed to effect partition by metes and bounds. The application filed by the petitioners for setting aside the Commissioner's report, plan and account is pending before the lower court. The petitioners have also filed an application for permission to cross examine the Commissioner. 5. The first respondent filed I.A.No.1392 of 2008 before the final decree court to appoint a Receiver for the properties. In the alternative, the first respondent prayed in the application to appoint a Commissioner to auction the right to collect the usufructus from the plaint schedule properties. It is not in dispute that the plaint schedule properties have an extent of more than seven acres. For the last 22 years, the first respondent/plaintiff was not paid any income from the property. The court below, after considering the facts and circumstances of the case, passed the order impugned dated 19.12.2008, by which it was held that it is not C.R.P. NO. 85 OF 2009 A :: 3 :: feasible to appoint a Receiver for the management of the properties. However, the court below thought it fit to appoint a Commissioner to sell the usufructus and to deposit the amount in court. The petitioners, who are respondents 14 and 15 and who are assignees from defendants 1 to 8, have filed this Revision challenging the order passed by the court below. 6. Learned counsel for the petitioner submitted that the court below was not justified in appointing a Commissioner and thereby depriving the petitioners of their right to take income from the property. It is submitted that the petitioners have one-half right in the properties. The counsel also submitted that apart from the plaintiff, no other sharer has filed any application for the reliefs prayed for by the plaintiff. The counsel pointed out that the court below could have directed the petitioners to deposit sufficient amounts to satisfy the claim of the plaintiff, instead of appointing an Advocate Commissioner to auction the usufructus. The court below did not properly exercise the discretion, submits the Counsel. 7. The court below has taken note of the fact that the plaintiff was not paid any amount towards the income from the property for the last 22 years. The petitioners claim exclusive possession. They do not concede that any of the sharers representing 3/6 share is taking any income from C.R.P. NO. 85 OF 2009 A :: 4 :: the property. The petitioners being the assignees cannot have any larger right than their assignors. The Assignors being entitled to only one-half right, they cannot deny the right of the sharers representing the other one- half right to participate in the enjoyment of the property or in the matter of sharing the profits. The order passed by the court below is intended to protect the interests of the sharers representing one-half right and to ensure a reasonable amount by way of their share of income from the property. The court below rightly took note of the dilatory tactics adopted by the petitioners to protract the proceedings so that they could take the entire income from the properties for years together. The order passed by the court below is just and reasonable and it was passed to ensure equal distribution of the profits to the sharers. So long as the judgment passed by the Honourable Supreme Court is not modified, the petitioners cannot resist the prayer made by the first respondent or the right of any of the sharers to get proportionate share of income from the properties. It is also relevant to note that the properties are extensive. There is no case for the petitioners that there is no sufficient income from the property warranting appointment of a Commissioner to sell the usufructus. There is no scope for interference in the Civil Revision Petition. It cannot be said that the order passed by the court below is unjust, illegal, irregular, improper or without jurisdiction. C.R.P. NO. 85 OF 2009 A :: 5 :: The Civil Revision Petition lacks merits and it is accordingly dismissed. (K.T.SANKARAN) Judge ahz/