IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 10331 of 2009(O) --------------------------------------- [OS.NO.40/1977 OF MUNSIFF'S COURT, WADAKKANCHERRY] .................... PETITIONER: ------------------- BHASKARAN, S/O.MARASSERY NANU, VELLITHIRUTHI DESOM, CHOWANNUR VILLAGE, TALAPPILLY TALUK. BY ADVS. MR.K.JAYAKUMAR, MR.P.B.KRISHNAN. RESPONDENT: ---------------------- SREEDHARAN, S/O.MARASSERY NANU, VELLITHIRUTHI DESOM, CHOWANNUR VILLAGE AND DESOM, TALAPPILLY TALUK. BY ADVS. MR.T.SETHUMADHAVAN, MR.PUSHPARAJAN KODOTH, MR.K.JAYESH MOHANKUMAR, SMT.VANDANA MENON. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.10331/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE E.A. NO.1/2003 IN E.P. 6/1999 IN O.S. 40/197, MUNSIFF'S COURT, WADAKKANCHERRY DTD. 04/01/2003. EXT.P.2: COPY OF THE JUDGMENT IN W.P.(C).NO.37275/2003-K DTD. 03/08/2007. EXT.P.3: COPY OF THE ORDER IN R.P.NO.821/2007 IN W.P.(C).NO.37275/2003-K. DTD. 15/09/2008. EXT.P.4: COPY OF THE ORDER IN E.A. NO.622/2008 IN R.P. NO.821/2007 IN W.P.(C). NO.37275/2003-K DTD. 17/10/2008. EXT.P.5: COPY OF THE REPORT AND PLAN SUBMITTED BY THE SURVEYOR DTD. 12/11/2008. EXT.P.6: COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER DTD. 15/11/2008. EXT.P.7: COPY OF THE OBJECTION TO THE REPORT AND PLAN FILED BY THE PETITIONER DTD. 25/11/2008. EXT.P.8: COPY OF THE APPLICATION FILED BY THE PETITIONER DTD. 25/11/2008. EXT.P.9: COPY OF THE ORDER IN E.A. 1/2003 IN E.P.6/99 IN O.S. NO. 40/1977, MUNSIFF'S COURT, WADAKKANCHERRY DTD. 31/01/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.10331 of 2009 - O --------------------------------- Dated this the 25th day of September, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To set aside Ext.P9 in exercise of the supervisory jurisdiction of this Honourable Court. ii) To direct the Munsiff Court, Wadakkancherry to pass final orders on E.A.No.1 of 2003 in E.P.No.6 of 1999 in O.S.No.40 of 1977 on its file after affording the petitioner an opportunity to lead evidence within a time frame to be fixed by this Honourable Court.” 2. The facts involved in the case are quite intriguing and the litigation between two brothers put to shame the often quoted relationship of brothers that 'blood is always thicker than water'. They have been fighting from 1977 onwards over a small plot having an extent of 12.5 cents and despite completing several bouts of litigation for last more than three decades their wranglings continue unabated. Suit for partition was instituted over the land in which a compromise decree was passed imposing terms on each other to deposit certain sums. Both sides imputed the other for W.P.(C).No.10331 of 2009 - O 2 noncompliance of the terms of the compromise decree and the respondent herein in execution of that decree got delivery of the entire property after depositing the sum which he was bound to pay to the other. Delivery of the property was challenged by the petitioner filing a revision before this Court, but, unsuccessfully. A Special Leave Petition was filed challenging the order of this Court and the Apex Court finding that the execution of the compromise decree was barred by time quashed the orders passed by the trial court and also of this Court. Pursuant to the passing of the orders in the Special Leave Petition, petitioner moved an application before the trial court for restitution and also damages, in which he also moved an application for interim restitution of the property delivered over. The application moved for interim restitution of the property delivered over was negatived by the trial court and against which he preferred a writ petition, in which redelivery was ordered within the time limit fixed. Complying with the orders of this Court redelivery, but of the entire property, to the petitioner was given effect to by the trial court. The respondent thereupon moved a review petition of the judgment passed in the writ petition contending that by way W.P.(C).No.10331 of 2009 - O 3 of restitution petitioner cannot get redelivery of the entire property. Several attempts were made by this Court by referring the dispute to the Lok Adalat to bring about an amicable settlement between the two brothers, but of no avail. Finally, the review petition was disposed on the consensus arrived by the parties, at the hearing of such petition, to have a division of the properties equally through court. Accepting the consensus so arrived the review petition was disposed of directing the court below to proceed for division of the properties equally between the parties. Trial court thereupon appointed an advocate commissioner to measure out the property to effect its division. The commissioner with the assistance of a surveyor measured out the property and prepared a report and plan. Ext.P5 is the report and plan prepared by the surveyor and Ext.P6 is the report of the advocate commissioner. In the plan prepared the property was divided into two, both having equal extent of 5.5 cents after excluding 1.5 cents on the southern side which had already been taken over as a pathway and at present enjoyed by the public. 'A' plot in the plan was earmarked for the respondent and 'B' plot for the petitioner. The court below accepting the report and plan to W.P.(C).No.10331 of 2009 - O 4 which serious objections had been raised by the petitioner passed Ext.P9 order. Propriety and correctness of Ext.P9 order is challenged in the writ petition 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. 4. Ext.P9 suffers from serious infirmities and unless such infirmities are rectified there will be no solution to the controversy between the parties is practically conceded by the counsel on both sides. Though the court below accepting the commissioner's report directed for division of the properties as A plot and B plot it is noticed that valuation of the property with reference to the building, the trees situate and improvements have not been taken into account in effecting the partition. Though an objection in that regard was canvassed by the petitioner Ext.P9 order disclose that it was brushed aside observing that equities can be worked out at a later stage. After acceptance of the commissioner's report effecting the division it may not be possible for the court to have further roving enquiry as regards the equities to be worked out between the sharers. W.P.(C).No.10331 of 2009 - O 5 Another grievance canvassed by the learned counsel for the petitioner is that after the property was obtained by delivery in execution of the compromise decree the respondent executed a conveyance deed in favour of his wife for the entire property and mortgaging that property as security it was encumbered to a society for availing a housing loan. If division of the properties is given effect to without reference to the encumbrance created by the respondent over the whole property it would cause additional burden to the petitioner is the grievance espoused by the counsel. Learned counsel appearing for the respondent would submit that the property had been conveyed to the wife, but, the encumbrance created had already been cleared off, which, however, is disputed by the learned counsel for the petitioner referring to an encumbrance certificate. Whatever that be, the fact remains that a conveyance deed had been created by the respondent who is admittedly having only one half right over the property in respect of the whole property in favour of his wife and subsequently the property was encumbered to a Society for availing housing loan. So, whatever encumbrance created over the property has to be fixed in the share of the property to be W.P.(C).No.10331 of 2009 - O 6 allotted to the petitioner, over which alone his wife will get right as the conveyance deed had been made in her favour during the pendency of the proceedings. That is also a relevant factor to be noticed and resolved by the court while effecting division of the properties between the parties. Similarly, the value of the buildings, trees and improvements has also to be assessed and a division has to be effected following the guidelines applicable in effecting division of the property by mets and bounds as between the two sharers. Learned counsel for the respondent submitted eversince restitution of the whole property was obtained by the petitioner he is forced to have rented accommodation and delay in culmination of the proceedings is causing him severe hardship and irreparable injury. So, an expeditious disposal of the proceedings is canvassed by the learned counsel seeking for appropriate directions/orders to the court below. Learned counsel for the petitioner also submits in view of the long pendency of the litigation it is the need of the hour to give a quietus to the controversy once and for ever by effective orders of the court, as expeditiously as possible. W.P.(C).No.10331 of 2009 - O 7 5. I direct the court below to depute the same commissioner who prepared Ext.P6 report to assess the value of the building, if necessary with the assistance of a technical expert, and the improvements in the property including the trees situate therein and, then, file a report as to how the partition to be effected with reference to A and B plot allotted to the respective parties taking note of the equities to be worked out, owelty if any to be paid etc., by one to the other. Division of A and B plots shall not be modified by the court unless the court finds it inevitable to modify it for the purpose of equitable division between the parties. I make it clear that the parties will not and cannot as of right canvass for any modification of the division already effected as A and B plots. The court below has to complete the exercise giving appropriate instruction to the commissioner and if necessary monitoring the filing of the report within the time fixed for passing effective orders disposing the proceedings, as expeditiously as possible. At any rate, the court below shall complete such exercise and pass effective orders within a period of three months from the date of receipt of a copy of this judgment. The expenses for appointment of commission W.P.(C).No.10331 of 2009 - O 8 including that of the expert shall be met equally by the parties and in case there is any default by any of them the other shall tender and meet such expenses, which shall be a charge on the property allotted to the other to the extent he is liable. Enquiry on the restitution petition and determination of the reliefs claimed thereunder on no account shall cause any impediment in giving effect to the directions as above. However, the court will conduct the enquiry on the restitution petition and pass appropriate orders, as expeditiously as possible. The court, if possible, to dispose the restitution petition as well while passing appropriate orders for division of the properties taking note of the directions given above. But, I make it clear that the orders of restitution and the giving effect to division shall be passed separately. Writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-