IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 CRP.No. 211 of 2009() --------------------- AGAINST THE ORDER DATED 13/03/2009 IN IA 472/09,IA 752/91 IN OS.10/1971 of SUB COURT, OTTAPPALAM .................... REVN. PETITIONER(S): RP/R23 & 25/LEGAL HEIRS OF DECEASED 4TH DEFENDANT ---------------------------------------------------------------------- 1. RUGMINI @ THANKAM ANTHERJANAM, AGED 54 YEARS, W/O.PURUSHOTHAMAN NAMBOODIRI, KUMARAMPULAKKAL MANA, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM IN OTTAPALAM TALUK. 2. DEEPA, D/O.RUGMINI @ THANKAM ANTHERJANAM, AGED 23 YEARS, PANDIKKAD AMSOM AND DESOM IN ERNAD TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENT(S): R2-5,18-21-PETITIONER & R.2,4,5,7,24,26-28. ---------------------------------------------------------- 1. KRISHNAN NAMBOODIRI, S/O.PURUSHOTHAMAN NAMBOODIRI, KUMARAMPULAKKAL MANA, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM IN OTTAPALAM TALUK. 2. SAVITHRI ANTHERJANAM, D/O.PURUSHOTHAMAN NAMBOODIRI, KUMARAMPULAKKAL MANA, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM IN OTTAPALAM TALUK. 3. VASUDEVAN NAMBOODIRI, S/O.PURUSHOTHAMAN NAMBOODIRI, KUMARAMPULAKKAL MANA, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM IN OTTAPALAM TALUK. 4. NARAYANAN NAMBOODIRI, S/O.PURUSHOTHAMAN NAMBOODIRI, KUMARAMPULAKKAL MANA, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM IN OTTAPALAM TALUK. 5. HAREESH, S/O.PURUSHOTHAMAN NAMBOODIRI, KUMARAMPULAKKAL MANA, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM IN OTTAPALAM TALUK. 6. NARAYANAN NAMBOODIRI, NHATTUVELA MANA, MANGALAM AMSOM, MODAPPAKKAD DESOM, OTTAPALAM TALUK. 7. PRADEEP, S/O.NARAYANAN NAMBOODIRI, NHATTUVELA MANA, MANGALAM AMSOM, MODAPPAKKAD DESOM, OTTAPALAM TALUK. 8. PRAMOD, S/O.NARAYANAN NAMBOODIRI, NHATTUVELA MANA, MANGALAM AMSOM, MODAPPAKKAD DESOM, OTTAPALAM TALUK. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA.NO.786/09 IN CRP 211/09 DISMISSED 23/3/09/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ C.R.P.NO.211 OF 2009 ------------------------------------------ Dated 23rd March 2009 O R D E R Petitioners are respondents 23 and 25 who were impleaded in the final decree as legal heirs of deceased fourth defendant. Subsequent to the preliminary decree I.A.752/1991 (in O.S.10/1971) was filed before Sub court, Ottappalam for passing a final decree in accordance with the preliminary decree. Commissioner appointed by the court submitted a report dividing the properties and suggesting allotment. I.A.80/2009 and 81/2009 were filed by third defendant and I.A.136/2009 by eighth defendant to remit the report and plan submitted by the commissioner. When these petitions were being enquired by the learned Sub Judge, on 22/1/2009 learned Sub Judge attempted to settle the dispute in between the parties. Finding that there was an agreement between the parties learned Sub Judge passed the following order. “Parties involved in the interse division came settlement CRR 211/09 2 and agreed before court in presence of their counsels that D4 will exchange all plots except item No.14 set apart to him in the share list to D8 and in turn D8 will exchange to D4 all plots except item No.13 set apart to him and D3 will exchange all plots except item No.18 to D6 and in turn D6 will exchange to D3 all plots set apart to him. Thus interse division among D3 to D8 is settled. Thus I.A.80/09, I.A.81/09 I.A.136/09 are closed. It is also conceded by D6 to permit D3 and his family to continue the residence in the Tharavad 1½ years. Call on 23/1/2009.” On 23/1/2009, I.A.472/2009 was filed by petitioners to review that order contending that they did not agree for exchange of properties as stated in the order dated 22/1/2009. Learned Sub Judge dismissed that application and this petition is filed under Section 115 of Code of Civil Procedure, challenging the order in I.A.472/2009 dismissing the petition to review. 2. Learned counsel appearing for petitioners and respondents were heard. 3. Learned counsel appearing for petitioners CRR 211/09 3 submitted that they did not agree for a settlement as stated by the court in the order dated 22/1/2009 and neither their counsel nor petitioners have made an endorsement accepting exchange of shares as stated in the order and therefore the order passed by learned Sub Judge changing allotment based on the settlement should have been reviewed as sought for in I.A.472/2009. 4. Learned counsel appearing for first respondent/third defendant in the suit submitted that none of the other sharers have any dispute and the dispute is only with regard to the exchange of share which was allotted by the commissioner to fourth defendant and eighth defendant and the settlement is binding on the parties and in any case, even if any interference is warranted there may not be any interference with the order with regard to the other shares. Learned counsel appearing for fourth respondent/eighth defendant submitted that what is recorded by the court on 22/1/2009 is the true facts and fifth respondent who is the son of first petitioner was present in court at the time of settlement all along and was also a party to the settlement and therefore learned Sub Judge was justified in dismissing the review petition CRR 211/09 4 and accepting the settlement. 5. As is clear from the orders passed by learned Sub Judge, though there was a settlement on 22/1/2009, learned Sub Judge did not record the presence of the parties to the settlement. Proceedings of the court on 22/1/2009 does not even disclose the fact that fourth defendant is no more. On the other hand, from the order it may appear that fourth defendant was present. Endorsement of either the sharers or the counsel who are parties to the settlement was not obtained by the learned Sub Judge. If such an endorsement was taken either from the party or the counsel, none of them could have thereafter turned back and contended that there was no settlement. The omission was that of the court itself by not getting the endorsement of the parties and the counsel. If there was a settlement between the 8th defendant and legal heirs of 4th defendant as stated in the order, signature of the parties should have been obtained after recording the settlement. In the absence of such record of settlement, settlement can only be treated non est. In such circumstances, learned Sub Judge was not justified in dismissing the review petition accepting the settlement. CRR 211/09 5 6. Therefore, the order dismissing I.A.472/2009 as well as acceptance of the settlement with regard to the exchange of properties from the share of defendant No.4 to defendant No.8 is set aside. Learned Sub Judge is directed to reconsider the question of allotment to defendants 4 and 8 in the light of objections raised by the parties to the allotment made by the Commissioner. M.SASIDHARAN NAMBIAR, JUDGE. uj.