IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 WP(C).No. 9103 of 2008(H) ------------------------- AGAINST THE ORDER IN IA.3489/2007 IN OS.512/1997 of MUNSIFF COURT, HOSDRUG .................... PETITIONER(S): --------------- M.R.RAMAN, AGED 65 YEARS, S/O.RAMAN, TEACHER, R/AT KODAVALAM, P.O.PULLUR, PULLUR VILLAGE, HOSDURG TALUK. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): --------------- 1. EKKALIL P.V. BINDU, AGED 26 YEARS. 2. EKKALIL P.V. PRASANNA, AGED 25 YEARS, BOTH ARE CHILDREN OF MOOVARI KALLIPAL KRISHNAN, HOUSE HOLD, R/AT NEERALAMKAI, P.O.PULLUR, PULLUR VILLAGE, HOSDURG TALUK. 3. EKKALIL P.V.KALLIYANI, AGED 57 YEARS, WIDOW OF MOOVARI KALLIPAL KRISHNAN, HOUSE HOLD 4. EKKALIL P.V.BABU, AGED 28 YEARS, S/O.MOOVARI KALLIPAL KRISHNAN, MAZDOOR. 5. EKKALIL P.V.BALAGOPALAN, AGED 19 YEARS, S/O.MOOVARI KALLIPAL KRISHNAN, RESPONDENTS 3 TO 5 ARE R/AT KODAVALAM, P.O.PULLUR, PULLUR VILLAGE, HOSDURG TALUK. ADV. SRI.T.K.VIPINDAS FOR R1,2 SRI.SREEVINAYAKAN K.V. FOR R1 AND R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.9103/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN RSA.NO.1072/2006 DATED 11.4.2007 BY THIS HONOURABLE COURT. EXT.P2: COPYOF THE COUNTER IN I.A.NO.3489/2007 IN O.S.NO.512/97 BEFORE THE MUNSIFF COURT, HOSDURG. EXT.P3: COPY OF THE ORDER IN I.A.NO.3489/2007 IN O.S.NO.512/97 DATED 7.1.2008 OF MUNSIFF COURT, HOSDURG. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.9103 OF 2008 () ----------------------------------- Dated this the 8th day of March, 2010 J U D G M E N T Petitioner is the 1st defendant in O.S.No.512 of 1997 on the file of the Munsiff Court, Hosdurg. Respondents 1 ad 2 are the plaintiffs and the other respondents co-defendants in the above suit, which is one for partition. A preliminary decree passed in the suit was challenged by the petitioner in appeal, but, the decree of the court below was confirmed. Second appeal preferred by the petitioner was disposed on the admission stage under Ext.P1 judgment granting liberty to the petitioner to substantiate the claim that he has got independent right over some portions of the plaint property under some documents in the final decree proceedings. In the final decree proceedings, petitioner produced documents to substantiate his case that over some portions of the property, he has got exclusive title and possession. The learned Munsiff, after considering the materials produced, concluded WPC.9103/08 2 that the petitioner has failed to establish such a claim, and so much so, it was negatived vide Ext.P3 order. Propriety and correctness of Ext.P3 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. The only grievance espoused by the learned counsel for the petitioner Adv.Sri.Kodoth Sreedharan is that the directions given by this Court in Ext.P1 judgment have been misconstrued and misinterpreted by the court below and that has resulted in forming wrong conclusions resulting in manifestation of injustice. This Court had passed Ext.P1 judgment granting liberty to the petitioner to produce documents to prove his claim, but the court below has understood that such permission was granted with a rider that it related to any other documents not considered by the court earlier in the preliminary decree proceedings. In Ext.P1 judgment, there is no observation that the enquiry should be limited to 'any other documents' is the submission of the learned counsel, and so WPC.9103/08 3 much so, the approach of the court below in analysing the materials tendered was not proper and correct. Ext.P3 order, in such circumstances, according to the counsel, cannot be sustained. On the other hand, the learned counsel appearing for the respondents 1 and 2, Adv.Sri.K.V.Sreevinayakan submitted that challenge against Ext.P3 order can be canvassed by the petitioner in appeal against the final decree and its correctness cannot be gone into invoking the writ jurisdiction of this Court. There is nothing improper in the order of the court below in limiting its enquiry with reference to the fresh documents produced by the petitioner/1st defendant since the validity of the other documents has already been considered before passing the preliminary decree. At any rate, no interference with the order is called for is the submission of the learned counsel. 3. I have considered the rival submissions made with reference to Ext.P3 order and Ext.P1 judgment rendered by this Court earlier in the second appeal against the preliminary decree passed in the suit. It may appear there is some force in WPC.9103/08 4 the submissions made by the learned counsel that in Ext.P1 judgment there is no direction that the enquiry has to be limited to 'any other documents' as understood by the learned Munsiff, but, still, having regard to the finality arrived at by passing of the preliminary decree, it was not open to the learned Munsiff to examine the correctness of Exts.P1 and P2 already produced in the case. So much so, the claim canvassed by the petitioner/1st defendant could have been examined only with reference to the fresh materials produced in the final decree proceedings. It is seen that the documents produced by the petitioner were not accepted for the reason that execution of such documents has not been established. Considering the directions given in Ext.P1 judgment, I find one more opportunity can be extended to the petitioner to prove the execution of the documents, and if that is done, the court below has to reassess the evidence and enter a finding as to whether there is any merit in the claim canvassed. I also make it clear that in case the court finds that the claim is not substantiated after such fresh enquiry, then there is no need to defer the passing of the final decree proceedings. Setting WPC.9103/08 5 aside Ext.P3 order, the court below is directed to dispose the case as expeditiously as possible. Writ petition is disposed of with the above direction. S.S.SATHEESACHANDRAN JUDGE prp