IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 WP(C).No. 24647 of 2010(O) --------------------------------- AGAINST THE ORDER DATED 09/07/2010 IN IA.659/2010 IN AS.32/2009 of DISTRICT COURT, PATHANAMTHITTA .................... PETITIONER(S): ------------------- JALALUDEEN RAWTHER, AGED 58 YEARS, S/O.SHEIK MUHAMMED RAWTHER,KURUVIKKATTU HOUSE, CHITTOOR MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK. BY ADVS. SRI.M.NARENDRA KUMAR SMT.LAYA SIMON RESPONDENT(S): --------------------- 1. FATHIMA BEEVI,PLAMKOTTATHIL HOUSE, CHATHANTHARA PO, KOLLAMULA(DIED) 2. MEERA SAHIB P.S, PAZHAYA VEEDU,PETTA, PATHANAMTHITTA. 3. NURJAHAN, PUTHUPARAMBIL VEEDU, PETTA, THYKAVU, PATHANAMTHITTA. 4. SALSATH BEEVI, KALEEKKAL, MUTHOOR PO,THIRUVALLA. 5. SALEENA, KIZHAKKE VEEDU, PETTA, PATHANAMTHITTA,. 6. THANKAMMAL BEEVI, PULINILKUNNATHIL VEEDU MUNDUKOTTACKAL PO, PATHANAMTHITTA. 7. UMMAR KHAN, PAZHAYA VEEDU, PETTA, PATHANAMTHITTA. 8. SHYJU HASSAN, PAZHAYA VEEDU, PETTA, PATHANAMTHITTA. R1 TO 6, 8 BY ADV. SRI.JACOB P.ALEX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2011, ALONG WITH WPC NO.28020 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 24647/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AGREEMENT DATED 23/07/2004. P2: COPY OF THE JUDGMENT IN O.S. NO.23/3005 DATED 29/11/2008 IN THE COURT OF SUBORDINATE JUDGE, PATHANAMTHITTA. P3: COPY OF THE JUDGMENT IN L.A.A. NO.183/2004 BEFORE THIS HON'BLE COURT DATED 16/03/2010. P4: COPY OF E.P.NO.41/2004 FILED BY THE ORIGINAL DEFENDANT DATED 09/03/2004. P5: COPY OF THE PETITION I.A. NO.659/2010, ALONG WITH THE AFFIDAVIT. P6: COPY OF THE ORDER IN I.A. NO.659/2010 IN A.S. NO.32/2009 DATED 15/07/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P.JOSEPH, J. ==================================== W.P(C) Nos.24647 & 28020 of 2010 ==================================== Dated this the 05th day of July, 2011 J U D G M E N T Though the 7th respondent in W.P(C) No.24647 of 2010 who is also the second respondent in W.P(C) No.28020 of 2010 has not been served, notice to him is dispensed with in view of the decision I have proposed to take in these petitions. 2. Parties are referred as petitioner and respondents as in W.P(C) No.24647 of 2010. 3. Dispute originally concerned right over 39 cents of land which originally belonged to the original first defendant who is the mother of respondents. After the death of the mother, petitioner filed O.S. No.121 of 2002 in the court of learned Sub Judge, Pathanamthitta for partition. While so, out of the said 39 cents, 23 cents was acquired by the State Government for use of the Municipality and regarding that matter, there was a reference to the court of learned Sub Judge under Sections 18 and 31(2) of the Land Acquisition Act which was taken on file as L.A.R. No.38 of 1996. In the meantime the suit for partition ended in a dismissal and I am told that it has become final. The reference court found W.P(C) Nos.24647 & 28020 of 2010 -: 2 :- that petitioner has no right over the 23 cents which was the subject matter of reference. Enhanced compensation was awarded. Petitioner challenged that part of the award against him in L.A.A. No.183 of 2006 but this Court confirmed finding of the reference court that petitioner has no right over the land acquired. It is alleged by petitioner that he got into Ext.P1 agreement dated 23.07.2004 with the original defendant as per which certain amount was to be paid to the petitioner and pursuant to that agreement original defendant is said to have issued cheque for Rs.1,00,000/- to the petitioner. Based on that cheque petitioner filed O.S. No.23 of 2005 before learned Sub Judge, Pathanamthitta for recovery of money. That suit ended in a dismissal, also for the reason that the suit is premature since even as per the agreement in question right of petitioner to realise the amount would arise only after the amount was deposited in the land acquisition proceeding. Dismissal of that suit is under challenge in A.S. No.32 of 2009 before learned District Judge, Pathanamthitta. In that appeal, petitioner has filed Ext.P5, application for attachment of the amount which was by then deposited in the land acquisition reference proceeding. According to the respondents a sum of W.P(C) Nos.24647 & 28020 of 2010 -: 3 :- Rs.3,74,784/- was sought to be attached as per Ext.P5, application. Learned District Judge passed Ext.P6, order (in W.P (C) No.24647 of 2010) declining to attach the amount and observing that remedy of petitioner is to approach the reference court under Sec.47 of the Code of Civil Procedure (for short, “the Code”). Exhibit P6, order is under challenge at the instance of petitioner in W.P(C) No.24647 of 2010 while the observation made by the learned District Judge that remedy of the petitioner is to move under Sec.47 of the Code is challenged by the respondents, in W.P(C) No.28020 of 2010. 4. So far as the observation in Ext.P6, order impugned by the respondents (in W.P(C) No.28020 of 2010) is concerned, I am inclined to think that the said observation is not correct since the claim of petitioner over the property acquired and compensation deposited for the said acquisition has already been rejected by the reference court and confirmed by this Court in L.A.A. No.183 of 2004. Moreover it is not disputed that the suit for partition filed by the petitioner has ended in a dismissal and that has become final. Hence question of petitioner moving the reference court under Sec.47 of the Code does not arise. The impugned observation is liable to be set aside. W.P(C) Nos.24647 & 28020 of 2010 -: 4 :- 5. It is pointed out by learned counsel for petitioner that appropriate applications under Sec.47 of the Code has already been filed in the reference court and in view of the decision this Court proposes to take in the Writ Petitions, petitioner will take steps to withdraw the said applications. 6. Then the question is whether petitioner (in W.P(C) No.24647 of 2010) is entitled to get the amount in deposit in L.A.R. No.38 of 1996 or any portion thereof, attached as prayed for in Ext.P5, application. The claim of petitioner in the suit is only for `1,00,000/- with interest and costs. This Court passed interim order in W.P(C) No.28020 of 2010 on 14.12.2010 on I.A. No.1339 of 2010 that having regard to the facts and circumstances respondents are permitted to withdraw the amount in deposit in the reference court except `1,50,000/-. I am told that pursuant to the said order the amount less the sum of `1,50,000/- has been withdrawn by the respondents. Now the the amount in deposit in the reference court is only `1,50,000/-. So far as the claim of petitioner for recovery of amount in O.S. No.23 of 2005 is concerned, that matter is pending consideration before the learned District Judge in A.S. No.32 of 2009. The interest which the petitioner claims is also to be protected in case W.P(C) Nos.24647 & 28020 of 2010 -: 5 :- the appeal is allowed and petitioner gets a decree for recovery of the amount. Having regard to the circumstances stated I am inclined to think that the the interest that the petitioner claim can be protected by directing that the amount in deposit shall not be withdrawn by respondents until the dispute in A.S. No.32 of 2009 is finally adjudicated. 7. Now the said amount is lying in deposit with the reference court. It is losing interest. It appears appropriate to me that the said amount is deposited in the State Treasury until the dispute in A.S. No.32 of 2009 is finally adjudicated. In the light of the above discussion these Writ Petitions are disposed of in the following lines: (a) W.P(C) No.28020 of 2010 is allowed. Observation made by the learned District Judge in Ext.P6, order in W.P(C) No.24647 of 2010 that it is open to the petitioner (in W.P(C) No.24647 of 2010) to move the reference court under Sec.47 of the Code is quashed. Submission made by learned counsel for petitioner in W.P.(C) No.24647 of 2010 that applications (E.A. Nos.357 and 364 of 2010) filed in the reference court will be withdrawn by petitioner is recorded. W.P(C) Nos.24647 & 28020 of 2010 -: 6 :- (b) W.P(C) No.24647 of 2010 is disposed of as follows: (i)The sum of `1,50,000/- (Rupees One lakh and fifty thousand only) lying in deposit with the reference court (In L.A.R. No.38 of 1996) shall be transmitted to and deposited in the State Treasury for appropriate period as the reference court directs and the receipt shall be kept by the reference court. (ii) The said deposit shall await final adjudication of the dispute in A.S. No.32 of 2009 and based on the final result in the appeal, the amount shall be withdrawn by the party found entitled thereto. (iii) It is open to the parties to raise all their respective contentions in A.S. No.32 of 2009 as to the entitlement of petitioner W.P(C) Nos.24647 & 28020 of 2010 -: 7 :- in W.P(C) No.24647 of 2010 for recovery of the amount he has claimed. Parties can request the learned District Judge for early disposal of the appeal. THOMAS P. JOSEPH, JUDGE. vsv