IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 CRP.No. 538 of 2008(E) --------------------------- AGAINST THE ORDER IN EP 94/97 IN OS.59/1991 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... REVN. PETITIONER(S)/COUNTER PETITIONERS/DECREE HOLDERS : --------------------------------------------------------------------------- 1. VASUMATHY, W/O LATE MADHAVAN, CHENNACKAL CHIRA, VADACKKEL MURI, PUNNAPRA VILLAGE. 2. VALSALA, D/O LATE MADHAVAN, CHENNACKAL CHIRA, VADACKKEL MURI, PUNNAPRA VILLAGE. 3. VANAJA D/O LATE MADHAVAN, CHENNACKAL CHIRA, VADACKKEL MURI, PUNAPRA VILLAGE. BY ADV. SRI.B.JAYASANKAR RESPONDENT(S)/ PETITIONER/JUDGMENT DEBTOR : ------------------------------------------------------------- THANKAPPAN, S/O LATE AYYAPPAN, RESIDING AT CHENNACKAL CHIRA, VADAKKEL MURI, PUNNAPRA VILLAGE. ADV. SRI.K.S.HARIHARAPUTHRAN FOR R1 SRI.GEORGE MATHEW FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = C.R.P. NO. 538 OF 2008 = = = = = = = = = = = = = = = Dated this the 21st day of January, 2011. O R D E R This revision petition is preferred against the order of the Additional Munsiff, Alappuzha in E.A.200/05 in E.P.94/97 in O.S.59/91. It was an application filed by the judgment debtor for redelivery of the property and the Court by the order directed redelivery in favour of the judgment debtor. It is challenging that decision the decree holder has come up in appeal. 2. It is stated that a confusion is prevalent on all points in this case. The trial court granted a decree in favour of the plaintiff for recovery of possession of the property. The appellate court confirmed it and the High Court did not entertain a second appeal. Thereafter on the strength of the CRP NO. 538 of 2008 -:2:- decree the plaintiff had taken delivery of the property. It is challenging the same the other proceedings are pending. 3. Now the plaintiffs are the wife and children of one Madhavan. The defendant Thankappan is the brother of Madhavan. By virtue of a partition in the family this Madhavan got 45 cents of land. Out of 45 cents of land by virtue of a document of the year 1981 Madhavan and his mother transferred 20 cents of property in favour of the defendant. Now the property that is taken delivery by the decree holder, plaintiff in the suit is situated on the western side of the property so assigned. Now the plaintiffs are claiming right over the plaint schedule property under Ext.A1 and the defendant is claiming right over the property under Ext.B4. Admittedly the property claimed CRP NO. 538 of 2008 -:3:- under Ext.A1 and B4 belonged to one Jaseentha Jetty. By virtue of Ext.A1 the plaintiff claims 13 cents of property and by virtue of Ext.B4 defendant claims 12 cents of property. A perusal of the sketch prepared with the assistance of the surveyor would reveal that the property owned by Madhavan and the family members are situated in Sy.No.431/9 whereas the property of Jaseentha Jetty is situated in R.Sy.No.432/1. If we go by the plan and sketch the property in the decree schedule is comprised in R.Sy.No.431/9. The certificates of purchase were originally obtained showing the survey number as 431/9 by both the plaintiffs as well as the defendant but subsequently both of them have got it corrected as the Sy.No.432/1 etc. 4. It is the case of the defendant that the property which the plaintiff has obtained CRP NO. 538 of 2008 -:4:- under Ext.A1 is the property situated on the southern side of the property retained by them after the sale of 20 cents of property in favour of the defendant. If it is so, the said property is on the southern side of the property retained by the plaintiffs. Now the property which is delivered is situated on the western side of the property assigned to Thankappan. Aggrieved by the order in the execution petition the defendant moved a CRP 2267/01. This Court by its judgment dated 22nd August, 2003, held as follows. “According to me, the approach made by the lower Court is not correct. The decree holder is entitled only to recover the property covered by Ext.A1 and not the property covered by Ext.B4. It is true that a decree has been passed. But when it is found that CRP NO. 538 of 2008 -:5:- the property delivered takes in some other properties, it is the duty of the Execution Court to redeliver the property, which is not included in the decree schedule.” 5. So the crux of the direction contained in the CRP is to find out whether the decree schedule property is the property covered by Ext.A1 or whether it is covered under Ext.B4. In order to enable the plaintiff to get delivery of the property one has to satisfy that it is the part and parcel of Ext.A1 property. Now the Commissioner has inspected the property and he had prepared a sketch and submitted a report. The Commissioner in his report at page 4 would submit that as per the directions of the High Court the position of the decree schedule appears to be Ext.B4. CRP NO. 538 of 2008 -:6:- 6. So far as Ext.A1 is concerned referring to a revenue inspector's report it is submitted that the property covered under Ext.A1 is situated beneath the property kept by the plaintiffs in the case. Now a perusal of the sketch would reveal that the disputed property is ABCD. The property CDHE is the property assigned by Madhavan and his mother in favour of the defendant. The property EHOP is the property retained by Madhavan and his mother. The sketch would reveal that if the property is identified with respect to the mention in the revenue inspector's report the property covered by Ext.A1 should be JMPQ etc. Now both the parties are claiming right under Jaseentha Jetty. Her property appears to be comprised in 432/1. The certificate of purchase also related to Sy.No.432/1 by virtue of the amendments. So CRP NO. 538 of 2008 -:7:- by any stretch of imagination we cannot hold that ABCD is the property covered under Ext.A1. When ABCD is not the property covered by Ext.A1 which is to be the decree schedule then a delivery with respect to that property is not proper and it has to be only redelivered. So from these discussions I hold that the trial court has arrived at a correct decision and it does not requires any interference. Therefore the CRP fails and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/-