IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 5233 of 2009(O) ----------------------------------- AGAINST THE ORDER DATED / / IN EA 446/07 IN EP 7/94 IN OS.159/1972 of SUB COURT,NEYYATTINKARA ..................................... PETITIONER(S): ------------------- 1. C.NAGAMMA, W/O.KUMARA SWAMI PILLAI, OOTTUKUZHI VILAKOM PURAYIDOM, KUNNATHUKAL VILLAGE, CERIAKOLLA DESOM, VELLARADA PANCHAYATH. 2. RAJA RAJESWARI, D/O.NAGAMMA, OF -DO- -DO- OOTTUKUZHI VILAKOM PURAYIDOM, KUNNATHUKAL VILLAGE, CERIAKOLLA DESOM, VELLARADA PANCHAYATH. 3. BHUVANESWARI, D/O.NAGAMMA, OF -DO- -DO- 4. AMBIKA, D/O.NAGAMMA, OF -DO- -DO- 5. CHANDRIKA, D/O.NAGAMMA, OF -DO- -DO- 6. SREEMURUKAN, S/O.KUMARA SWAMI PILLAI OF -DO- -DO- 7. GOPAKUMARAN, S/O.KUMARA SWAMI PILLAI OF -DO- -DO- BY ADV. SRI.R.GOPAN RESPONDENT(S): ----------------------- 1. K.V.PURUSHOTHAMAN, KEZHARA VEEDU, MELOOR VILLAGE, MELOOR DESOM, MUKUNDAPURAM TALUK. (DIED; LEGAL HEIRS IMPLEADED) * 2. MALU ESSAKKY, OOTTUKUZHI VILAKAM PURAYIDOM, WP(C).No. 5233 of 2009(O) CHERIYAKOLLA DESOM, KUNNATHUKAL VILLAGE, VELLARADA PANCHAYAT. 3. GANESAN PILLAI, ESSANTHI MANGALATHU VEEDU, KEEZHURUKKU, BHOOTHA PANDI, NAGARCOIL, KANYAKUMARI DIST. * 4. PANDARA PILLAI KUMARASWAMI PILLAI, OOTTUKUZHI VILAKOM PURAYIDAM, OF DO. DO. * 5. CHINNAMMA KOLAMMA, OOTTUKUZHI VADAKKEPUTHEN VEEDU, OF DO. DO. 6. MEENAKSHI CHELLAMMA, KEEZHUTTU SANTHI MANGALATHU VEEDU, OF DO. DO. 7. VELAYUDHAN PILLAI SHIVATHANU PILLAI, OF DO. DO. 8. VELAYUDHAN PILLAI SWARNAMUTHU PILLAI, OF DO. DO. 9. VELAYUDHAN PILLAI MUTHUKRISHNA PILLAI, OF DO. DO. * 10. CHELLAMMA MUTHAMMA OF DO. DO. 11. CHELLAMMA PILLAI NADARAJA PILLAI, OOTTUKUZHI ROADRIKATHU PUTHEN VEEDU, KUNNATHUKAL VILLAGE, CHERUKOLLA DESOM. 12. KOLAMMA CHANDRIKA, OF -DO- -DO- 13. KOLAMMA THANKOM, OF -DO- -DO- ** 14. LAKSHMY SARASWATHY PURUSHOTHAMAN, D/O.PURUSHOTHAMAN, KEZHARA VEEDU, MELOOR VILLAGE, MELOOR DESOM, MUKUNDAPURAM TALUK. ** 15. SARASWATHY PURUSHOTHAMAN, W/O.PURUSHOTHAMAN, KEZHARA VEEDU, MELOOR VILLAGE, MELOOR DESOM, MUKUNDAPURAM TALUK. BY ADVS. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R14,15 SRI.M.C.GOPI FOR R14,15 SRI.S.SUJIN FOR R14,15 WP(C).No. 5233 of 2009(O) SRI.G.P.SHINOD FOR R-11,12,13 SRI.RAM MOHAN.G. FOR R-11,12,13 * RESPONDENTS 2, 4, 5 AND 10 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DTD.16.3.2009 IN I.A.2827/09 IN W.P.(c)NO.5233/09. ** R14 AND R15 ARE IMPLEADED AS SUPPLEMENTAL RESPONDENTS 14 AND 15 AS THE LEGAL HEIRS OF DECEASED R1 AS PER ORDER DTD.9.7.09 IN I.A.8225/09. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.5233 OF 2009 (O) ----------------------------------- Dated this the 14th day of July, 2009 J U D G M E N T This is the third writ petition filed by the legal representatives of one of the defendants in a suit for partition after the passing of a final decree when the plaintiff/1st respondent sought for delivery of the separate possession of the plot allotted to him under the decree, earmarked under the plan appended thereto, contending that the plan and specification of the plot are incorrect. The 1st petitioner is the wife and the other petitioners are the children of the 6th defendant in the suit, namely, O.S.No.159/1972 filed by the 1st respondent. During the pendency of the present writ petition, the 1st respondent had passed away and his wife and his daughter, his legal representatives, have been impleaded as additional respondents 14 and 15 in the petition. 2. A preliminary decree was passed in the suit for WPC.5233/09 2 partition and separate allotment of 9/12 th share to the plaintiff/1st respondent. In the final decree proceedings an advocate commissioner appointed by the court after measurement of the suit property prepared a plan whereunder 'COLK' plot having an extent of 85.663 cents was specified towards the share of the plaintiff allotted under the decree, and another plot 'ODEL' with the original defendants 1, 2 and 6 in the suit. Admittedly, the final decree was challenged by way of an appeal, but, unsuccessfully at the instance of the 6th defendant. When the decree holder moved for delivery of separate allotment of the property shown as 'COLK' in the plan appended to the final decree, it was resisted by the 6th defendant and, later, by his legal heirs, the present petitioners contending that the plan was incorrect. A court Amin assisted by village officer was directed to deliver the property, but the village officer reported that the property is not identifiable with reference to the plan appended to the decree, and, then, on the application moved by the decree holder, the District Superintendent of Survey and Land Records was appointed by the court to identify 'COLK' plot in WPC.5233/09 3 C4(a) plan to enable its delivery as per the decree. The 1st petitioner herein filed W.P.(C).No.21750/2007 challenging the order of the execution court and this Court negativing the challenges raised held that in order to execute the decree of the civil court, the assistance of the District Superintendent of Survey ordered by the court, to identify the property over which separate allotment was made in favour of the decree holder, is proper and correct. However, it was directed that the commissioner who prepared the plan may also be directed to visit the property with the District Superintendent of Survey to demarcate the plots, and the execution court was directed to hear the objections of the petitioner on the report after such inspection and demarcation of the land. Pursuant thereto, the District Superintendent of Survey with the Commissioner who prepared the previous report visited the property and identified 'COLK' plot covered by the plan appended to the final decree. The report filed by the Commissioner was objected to by the petitioners contending the demarcation made and identification of 'COLK' plot are incorrect. A second writ petition was moved before this Court WPC.5233/09 4 as W.P.(C).No.3935/2008 by the 1st petitioner herein espousing a grievance that the request made for examining some witnesses to substantiate the objections raised to the Commission report was turned down by the execution court. That writ petition was disposed by this Court by judgment dated 1.2.2008 observing that the execution court had only ordered that the examination of further witnesses will be concerned after examining the Commissioner and the Surveyor. This Court further noticing that no decision has been taken on the requests of the petitioner to examine additional witnesses directed the execution court to consider that application after examining the Commissioner and the Surveyor and if it is not found allowable, then issue such order to the petitioner giving him a short time to challenge it before the appropriate forum. After the disposal of that writ petition as above, six witnesses including the Commissioner and the District Superintendent of Survey were examined by the petitioners/judgment debtors to substantiate their objection that 'COLK' plot identified under A1 Commission report and A2 plan in execution was not correct. In the enquiry, apart WPC.5233/09 5 from A1 Commission report and A2 plan, C1 Commission report and C2 plan prepared on the trial side, and Ext.X1 report filed by the village officer and Ext.X2 series were exhibited. The learned Sub Judge after considering the materials produced and hearing the counsel on both sides, found that the objections raised by the petitioners/judgment debtors to A1 report and A2 plan prepared by the Commissioner and Surveyor are devoid of any merit and dismissed the application moved for setting aside that report and plan with costs of the decree holder/1st respondent. Impeaching the propriety and correctness of that order, the present petition has been filed invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. The learned counsel for the petitioners relying on P.N.Kurian v. Thulasidas (2003 (1) KLJ 716) contended that when a question relating to the identity of the property, of which possession is to be delivered to the decree holder, arise for WPC.5233/09 6 consideration without identifying the property covered by the decree and determining that question no property covered by the decree can be delivered to the decree holder. The identification made by the Surveyor and the Commissioner under A1 report and A2 plan, according to the learned counsel, is wrong and the property so identified by them encroaches upon 'ODEL' plot allotted to the other sharers including the judgment debtors. Ext.P17 is the copy of the order passed by the learned Sub Judge. Perusing Ext.P17 order, I find the learned Sub Judge has meticulously considered the objections raised by the judgment debtors challenging the merit of the report and plan prepared by the Commissioner and Surveyor and has concluded that the objections raised are untenable and unworthy of any merit. It seems the judgment debtors are under a misconception that by raising objections to the identity of the property covered by a plan, they can continue to delay the execution and deny the decree holder from reaping the fruits of the decree with their predecessor in the party array. A decree was passed and the separate allotment to be made to the decree holder and other WPC.5233/09 7 sharers was identified. The plan was approved by the court overruling the objections raised by the 6th defendant and the appeal preferred against the final decree was also dismissed. Any challenge questioning the correctness of that plan is not available to the 6th defendant nor any of his legal representatives. However, the village officer who was deputed to assist the Amin for delivery of the plot under the plan appended to the final decree could not identify such a plot for one reason or other and he gave a report stating that fact. It was under that circumstance, the court directed the District Superintendent of Survey to conduct an inspection with reference to the plan appended to the decree and this court when an earlier writ petition was filed, directed the execution court to depute the Commissioner who prepared the earlier plan also to enable the District Superintendent of Survey for a proper identification. Banking upon the village officer's report, who could not identify the property the judgment debtors persisted with their challenge that the plots earmarked and allotted to the decree holder under the plan appended to the final decree is not identifiable. It is WPC.5233/09 8 interesting to note the challenge raised by the judgment debtors is that plot now identified takes in some buildings which were not shown as coming under 'COLK' plot allotted to the decree holder. It has been brought to my notice that the execution court has passed an order as early on 12.2.2007 that all unauthorised constructions pendente lite are to be demolished except the two buildings belonging to the plaintiff in O.S.No.816/1985 from which an appeal is pending. The decree holder has a case that during the pendency of the suit several unauthoised constructions were put up and they are liable to be demolished. It is seen that the suit was instituted nearly 37 years ago and despite passing of a final decree on 30.6.1980 still the decree holder/plaintiff is denied of having the separate possession of the plot allotted to them under the decree. In this context, the order passed by the execution court that all other unauthorised constructions other than the two buildings covered under the suit in O.S.No.816/1985 are to be demolished by its order dated 12.6.2007 from which no challenge has been made by any of the parties and it has become final assumes much significance. Producing some WPC.5233/09 9 photographs in the writ petition, which shows some old buildings, it was canvassed before me by the learned counsel that the plot now identified by the Commissioner under A1 report and A2 plan by the District Superintendent of Survey take in such old buildings also. The objection so canvassed deserves to be taken note of only for its rejection, as it was not even open to the 6th respondent, leave alone to his legal representatives, to challenge the identification of 'COLK' plot which was allotted to the 1st respondent decree holder after the acceptance of C4(a) plan by the court and passing of final decree directing for appending that plan as part of that decree. The appeal preferred against the final decree was also dismissed. Any challenge to the identification of 'COLK' plot should have been taken on the trial side and not in execution. Such a plot is not identifiable and it encroaches upon the property earmarked the 'ODEL' plot for allotment to the defendants is also a matter which required to be agitated on the trial side. The surveyor and the village officer, who were deputed earlier, expressed their inability to identity 'COLK' plot as shown in the C4(a) plan appended to the final WPC.5233/09 10 decree does not lead to the conclusion that such a plot cannot be identified. From the evidence let in by the Commissioner and the District Superintendent of Survey and the report and plan filed by them, the learned Sub Judge was satisfied that they had correctly located 'COLK' plot as shown in the plan appended to the decree. The challenges made during the course of their examination by reference to the measurements shown in the previous plan and also the boundaries mentioned were also found unacceptable by learned Sub Judge. I do not find any infirmity, nor even any mentionable error was brought to my notice, as regards any of the findings and conclusions under Ext.P17 order passed by the learned Sub Judge. This Court in exercise of its visitorial jurisdiction cannot be expected nor it can go into the correctness of the disputed question as to the measurement of the plot prepared in execution in comparison with the one prepared in trial side. If only it is shown that there is a glaring and patent infirmity in the measurement made, it cannot even have a look into the merit of the challenges canvassed as regards the correctness of the report and plan. WPC.5233/09 11 It is interesting to note that copy of the final decree is produced as Ext.P1 in the petition. The petitioners have not produced copy of the A1 report and A2 plan though several other exhibits are produced with the writ petition, to enable this Court atleast to look into whether there is any discrepancy in A2 plan with the plan appended to the final decree, a copy of which is produced as Ext.P1. That itself speaks volumes that the challenges raised in execution perhaps successfully by the judgment debtors in the last several decades, that too by moving two writ petitions earlier as well, and canvassing a dispute as to the identify of the property to be alloted to the decree holder in the suit is nothing but a deliberate venture to stall the delivery of the plot allotted under the decree, and thus, deny him the benefits of the decree. Such tactics no longer can be countenanced, and deserves to be properly dealt with by the execution court. 4. The decision relied by the learned counsel does not in any way advance the case of the petitioners. To give effect to the decree, the execution court has to take steps for WPC.5233/09 12 identifying the property is the sum and substance of that decision. It must conduct proper enquiry to determine the question of identity of the property for the purpose of giving effect to the decree, and not to assist the judgment debtors to advance contentions disputing the identity of the property in execution despite challenges raised against it had been negatived in the trial of the suit and, later, in appeal preferred against the decree of the trial court. The writ petition is disposed with a direction the execution court to take appropriate steps for delivery of the decree property as identified to the decree holders expeditiously, if necessary, ordering for providing police aid, if sought for. S.S.SATHEESACHANDRAN JUDGE prp