IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 WP(C).No. 14568 of 2009(O) --------------------------------------- [OS.NO.173/2005 OF THE MUNSIFF COURT, VAIKOM] .................... PETITIONERS: --------------------- 1. NARAYANAN, S/O LATE KUNJAN VAVA, AGED 69, SASTHAMTHURUTH HOUSE, BRAHMAMANGALAM KARA AND P.O., CHEMPU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 2. RAMANAN, S/O.NARAYANAN, DO. DO. 3. RAMA, VALIYAPARAMBU HOUSE, KATTIKUNNU KARA AND P.O., CHEMPU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. BY ADVS. SRI.N.RATHEESH, SMT.SUMA RATHEESH. RESPONDENTS: ------------------------ 1. C.K.SASI, S/O.KUNJAN VAVA, SASTHAMTHURUTHIL, BRAHMAMANGALAM KARA, CHEMPU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 2. AMMINI, W/O.KUNJOONJU, POOKKAITHAYIL HOUSE, NADUTHURUTHU KARA, CHEMPU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 3. SANTHA, W/O KARUNAKARAN, KALAPURACKAL HOUSE, NADUTHURUTHU KARA, CHEMPU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 4. BHAMA, W/O.PURUSHAN, RESIDING AT MADAPPALLY LEKSHAM VEEDU COLONY, THALAYAZHAM KARA AND VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. ....2... :-2-: W.P.(C). NO.14568/2009-O: 5. BHARATHY, W/O.KARUNAKARAN, PUTHENTHARAYIL HOUSE, IRUMPOZHIKKARA MURI, VADAKKEMURI VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. R1 TO R5 BY ADVS. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14568/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT DTD. 08/04/2005 IN O.S. NO. 173/05 OF THE MUNSIFF'S COURT, VAIKOM. EXT.P.2: COPY OF THE WRITTEN STATEMENT WITH COUNTER CLAIM DTD. 11/11/2005 FILED BY THE PETITIONERS HEREIN IN O.S. NO. 173/05 OF THE MUNSIFF'S COURT, VAIKOM. EXT.P.3: COPY OF THE PETITION TO REMOVE THE CASE FROM THE SPECIAL LIST FOR TRIAL DTD. 30/03/2007 FILED BY THE PETITIONERS HEREIN IN O.S. NO. 173/05 OF THE MUNSIFF'S COURT, VAIKOM. EXT.P.4: COPY OF THE JUDGEMENT DTD. 13/04/2007 PASSED IN O.S. NO. 173/05 OF THE MUNSIFF'S COUR, VAIKOM. EXT.P.5: COPY OF THE APPLICATION, I.A. NO. 1607/2007 DTD. 24/08/2007 FOR SETTING ASIDE EX PARTE DECREE PASSED IN O.S. NO. 173/05 OF THE MUNSIFF'S COURT, VAIKOM. EXT.P.6: COPY OF THE APPLICATION, I.A. NO. 1607/2007 DTD. 24/08/2007 FOR CONDONATION OF DELAY IN SETTING ASIDE EX PARTE DECREE PASSED IN O.S. NO. 173/05 OF THE MUNSIFF'S COURT, VAIKOM. EXT.P.7: COPY OF THE COMMON ORDER DTD. 15/12/2007 IN I.A. NO. 1606/2007 AND I.A. NO. 1607/2007 PASSED IN O.S. NO. 173/05 OF THE MUNSIFF'S COURT, VAIKOM. EXT.P.8: COPY OF THE JUDGEMENT DTD. 20/12/2008 PASSED IN C.M.A. NO. 12/2008 OF THE HONOURABLE DISTRICT COURT, KOTTAYAM. EXT.P.9: COPY OF THE APPLICATION I.A. NO. 1488/2010 DTD. 08/10/2010 IN O.S. NO.173/05 OF THE MUNSIFF'S COURT, VAIKOM. EXT.P.10: COPY OF THE APPLICATION I.A. NO.1493/2010 DTD. 08/10/2010 IN O.S. NO. 173/05 OF THE MUNSIFF'S COURT, VAIKOM. RESPONDENTS' EXHIBITS: EXT.R1.: COPY OF THE ORDER PASSED BY THE LAND TRIBUNAL, VAIKOM IN I.A. NO. 6/1990 IN S.M. NO. 22/1990 DTD. 26/03/1993. EXT.R1.A: COPY OF THE ORDER PASSED BY THE APPELLATE AUTHORITY (LAND TRIBUNAL), ALAPPUZHA IN A.A. NO. 72/2000 DTD. 17/10/2000. W.P.(C). NO.14568/2009-O: EXT.R1.B: COPY OF THE ORDER PASSED BY THE APPELLATE AUTHORITY (LAND TRIBUNAL), ALAPPUZHA IN I.A. NO. 39/2008 AND I.A. NO. 40/2008 IN A.A. NO. 72/2000 DTD. 26/12/2008. //TRUE COPY// P.A. TO JUDGE. Prv. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.14568 Of 2009 ---------------------- Dated this the 3rd day of December, 2010. J U D G M E N T Petitioners are the defendants in O.S.No.173 of 2005 on the file of the Munsiff Court, Vaikom. The subject matter of the dispute is 19 cents of land in survey No.62/6D of Chempu Village. The title holder of the property is Kunjan Vava, father of the first petitioner and respondents 1 to 5. Late Kunjan Vava purchased tenancy right in S.M proceedings 8/1980 of the Land Tribunal, Vaikom. 2. Plaintiffs 1 to 5, who are the children of Kunjan Vava, filed a suit for partition and separate possession of 5/6 shares in the property and for cancellation of gift deeds executed by the first defendant in favour of his two children. First defendant is also one of the issues of deceased Kunjan Vava. In S.M. proceeding No.22/1990 the Land Tribunal issued patta in the name of the first petitioner/first defendant in the suit. The property for which patta was issued is the very same property for which the father obtained patta in S.M. proceedings 8/1980. On W.P.(C).No.14568 Of 2009 ::2:: coming to know about the issuance of patta in favour of the first petitioner/first defendant the other legal heirs of Kunjan Vava who are the plaintiffs in the suit filed petition under Section 72 M.M (7) of the Kerala Land Reforms Act to cancel the patta issued in S.M. proceedings 22/1990 along with a petition to condone the delay in filing the said application. The Land Tribunal by order dated 26.3.1993 allowed the applications. The order passed in S.M. proceedings 22/1990 was set aside. The Land Tribunal directed the first petitioner/first defendant to surrender the patta dated 23.7.1990 issued to him in S.M. proceedings 22/1990. Ext.R1 is the order of the Land Tribunal dated 26.3.1993. 3. The first petitioner/first defendant preferred appeal as A.A.No.72 of 2000 before the Appellate Authority (Land Reforms), Alappuzha. Finding that the appellant is continuously absent for the last several hearing dates, the appeal was dismissed for default by order dated 17.10.2000. Ext.R1(a) is the order. Subsequently he filed I.A.Nos.39/2008 and 40/2008 for restoring the appeal and for condoning the delay in filing the restoration application. There is a delay of 2739 days in filing the W.P.(C).No.14568 Of 2009 ::3:: application for restoration. When the aforesaid I.As were taken up for consideration by the appellate authority, neither the appellant nor his counsel was present. Therefore the appellate authority dismissed both I.As for default. Ext.R1(b) is the order. That order has become final. Therefore, the claim of the first petitioner/first defendant on the strength of the patta issued in S.M. proceedings 22/1990 is unsustainable. Suit was filed by the respondents herein as plaintiffs for partition and separate possession of 5/6 shares. Though the patta was issued for an extent of 19 cents, the Land Tribunal found that the total extent of property enjoyed by the tenant is 30 cents. O.S.No.173/2005 was listed for trial on 9.4.2007. The petitioners who are the defendants in the suit filed written statement and also raised a counter claim. When suit was listed for trial on 9.4.2007 the petitioners remained absent and suit was decreed ex-parte and counter claim was dismissed vide judgment dated 13.4.2007. Petitioners herein filed I.A.Nos.1606/2007 & 1607/2007 to set aside the ex-parte decree passed in the case and for condoning the delay in filing the petition for setting aside the ex-parte W.P.(C).No.14568 Of 2009 ::4:: decree. The trial court passed Ext.P7 order dismissing both applications. The trial court observed that there is no prayer in the application to restore the counter claim which was also dismissed on the date of passing ex-parte decree. In the counter claim the defendants set up absolute title in respect of the plaint schedule property on the strength of the patta issued in S.M. proceedings 22/1990 and the subsequent gift deeds executed in favour of the defendant 2 & 3 who are the children of the first defendant. The court also observed that when the petitioners' counter claim stands dismissed for non-prosecution, mere asking for setting aside the ex-parte decree will not serve any purpose. The trial court as well as the appellate court disbelieved the versions of the petitioners in the I.A. The reason stated is that the first petitioner is suffering from heart ailments and the petitioners 2 & 3 were not in station at the when the suit was listed for trial. Trial court held that the petitioners failed to substantiate the reasons stated in the application for condonation of delay and in the application for setting aside the ex-parte decree. The court observed that no sufficient reasons are stated W.P.(C).No.14568 Of 2009 ::5:: for their non-appearance on 9.4.2007 before the court when the suit was listed for hearing. Ext.P7 is the order passed by the trial court. The appellate court in C.M.A.No.12 of 2008 also re- appreciated the evidence on record. The appellate court also is of the view that no satisfactory evidence is adduced by the petitioners to allow the application for setting aside the ex-parte decree and to condone the delay in filing the petition to set aside the ex-parte decree. The appellate court also noticed the fact that the defendants did not file any application to restore the counter claim filed by them. Ext.P8 is the order passed by the lower appellate court. 4. In the preceding paragraphs I have stated the manner in which the petitioners prosecuted the proceedings before the Land Tribunal and before the Appellate Authority. Petitioners are not vigilant in prosecuting the case filed before the Land Tribunal and the Appellate Authority and were also negligent in prosecuting the suit and the connected proceedings. Since the orders attained finality the right claimed by the petitioners in the suit also prima facie appears to be unsustainable in law. The first W.P.(C).No.14568 Of 2009 ::6:: petitioner is one of the children of the deceased Kunjan Vava. He has got 5 other children who are the defendants in the suit. The initiation of proceedings before the Land Tribunal would prima facie indicate that he is claiming the entire property which his father obtained in S.M. proceedings 8/1980. Since no sufficient cause was shown for condonation of delay and since there is no sufficient reason for non-appearance before the court below on the date when the suit was listed for hearing, the courts below rightly held that the applications submitted by the petitioners are without any merit. I do not find any reason to interfere with the orders passed by the courts below in exercise of my jurisdiction under Article 227 of the Constitution of India. The writ petition fails and accordingly dismissed. HARUN-UL-RASHID, Judge. bkn/-