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. 22167 of 2009(O) -------------------------- OS.107/1977 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER(S): ------------------------- 1. AYISUMMA, WIDOW OF ABDUL KHADER. 2. JAFFER, S/O. LATE ABDUL KHADER. 3. NAZAR, S/O. LATE ABDUL KHADER. 4. ASHARAF, S/O. ABDUL KHADER. 5. AYOOB, S/O. LATE ABDUL KHADER. 6. MAHAMOODA, D/O. LATE ABDUL KHADER. 7. MARIYA, D/O. LATE ABDUL KHADER. 8. NABEESA, D/O. LATE ABDUL KHADER. 9. SEENATH, D/O. LATE ABDUL KHADER. 10. UPPAPPA ALIAS NOWSHAD. ALL ARE RESIDING AT VITHUNNI, YAKKARA, PALAKKAD DISTRICT. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, MR.T.C.SURESH MENON, MR.JIBU P THOMAS, MR.P.S.APPU, MR.A.R.NIMOD, MR.C.A.ANOOP Kss ..2/- ...2..... WPC.NO.22167/2009 O RESPONDENT(S): ---------------------------- 1. PAZHANIYAPPA PILLAI, S/O. ARUNACHALAM PILLAI. 2. VELAYUDHAN, S/O. ARUNACHALAM PILLAI. 3. SIVASUBRAMANYAN, S/O. ARUNACHALAM PILLAI. 4. RATHNASABHAPATHY, S/O. ARUNACHALAM PILLAI. 5. BALAKRISHNAN, S/O. ARUNACHALAM PILLAI. 6. GOPALAKRISHNAN, S/O. ARUNACHALAM PILLAI. RESPONDENTS 1 TO 6 ARE RESIDING AT VITHUNNI, YAKKARA, PALAKKAD DISTRICT. 7. KARUPPANNAN, S/O. MARAKATHAMMAL. 8. CHAMIYAPPAPILLAI, S/O.MARAKATHAMMAL. 9. MEEMAMBAL, D/O. MARAKATHAMMAL. RESPONDENTS 7 TO 9 ARE RESIDING AT R.S.ROAD, KARUR, TRICHY. 10. RAHMATH. 11. SALIM. 12. SHAMEENA. 13. ANVAR. 14. SAKKEER. 15. SAIRABHANU. 16. SHANOJ. Kss ...3/- ...3...... WPC.NO.22167/2009 O 17. BALKEES,WIDOW OF SHAMSUDDIN. 18. MUHAMMED ASHIF, S/O. LATE SHAMSUDDIN. 19. MUHAMMED ASHIK, S/O.LATE SHAMSUDDIN. 20. NAZEEMA. RESPONDENTS 10 TO 20 ARE RESIDING AT VITHUNNI, YAKKARA, PALAKKAD DISTRICT. 21. DEVAKI AMMAL, WIDOW OF NAGAPPAN PILLAI. 22. VASANTHAKUMARI, D/O. LATE NAGAPPAN PILLAI. 23. GURUVAYURAPPAN, S/O. LATE NAGAPPAN PILLAI. RESPONDENTS 21 TO 23 ARE RESIDING AT VITHUNNI STREET, NURANI P.O., PALAKKAD DISTRICT. 24. FATHIMA. 25. PANCHALI. 26. GEETHA. 27. RAMESH. 28. SIVASANKARAN, S/O. AMMUNNI AMMA. RESPONDENTS 24 TO 28 ARE RESIDING AT VITHUNNI, YAKKARA, PALAKKAD DISTRICT. 29. K.H.MUHAMMED SANGHAR HOTEL, VITHUNNI, PALAKKAD. 30. SIVAKAMI AMMAL. 31. RAJENDRAN. 32. DHANABHAGYAM. 33. PRABHU. Kss ..4/- ....4..... WPC.NO.22167/2009 O 34. RAMESH. 35. DHANALAKSHMI AMMAL, D/O. ARUNACHALAM PILLAI. 36. MURUKESAN, S/O. ARUNACHALAM PILLAI. 37. GANESAN, S/O. ARUNACHALAM PILLAI. 38. RAJAGOPALA UDAYAR. ALL ARE RESIDING AT VITHUNNI, YAKKARA, PALAKKAD DISTRICT. R1 TO R4 & R6 BY ADVS. MR.P.R.VENKETESH R25 TO R27 BY ADV. MR.A.R.GANGADAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.22167/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER IN C.R.P.NO.2467/1993 ON THE FILE OF THIS HONOURABLE COURT DTD. 20/09/2002. P2: COPY OF THE FINAL REPORT OF THE ADVOCATE COMMISSIONER DTD. 18/10/1973. P3: COPY OF THE INTERLOCUTORY APPLICATION FILED BY THE PETITIONERS DTD. 7/04/2009. P4: COPY OF THE OBJECTION FILED TO THE INTERLOCUTORY APPLICATION DTD. 3/06/2009. P5: COPY OF THE ORDER IN I.A.NOS.3135/08 & 1390/2009 IN I.A.NO.1906/2006 AND I.A.NO.120/1991 IN O.S.NO.107/1977 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DTD.2/07/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.22167 of 2009 - O --------------------------------- Dated this the 25th day of September, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: “i) To call for the records leading to the passing of Ext.P5 order and set aside the same. ii) To allow I.A.No.1390/2009 in I.A.NO.120/2001 in O.S.No.107/1977 on the file of the Court of the Subordinate Judge of Palakkad. iii) To issue a writ in the nature of mandamus directing the court below to consider the plea under Section 106 of the Kerala Land Reforms Act claimed by the petitioners being the legal heirs of the 21st defendant.” 2. Petitioners are the respondents 17 to 23 in the final decree proceedings, I.A.No.120 of 2001 in O.S.No.107 of 1977 on the file of the Sub Court, Palakkad. The predecessor of the petitioners was the 21st defendant in the suit who had passed away during the pendency of the appeal preferred against the preliminary decree passed in the suit. These petitioners were not brought on record during the pendency of the appeal, but, only in W.P.(C).No.22167 of 2009 - O 2 the final decree proceedings. In the final decree proceedings, when an application was moved for appointment of a commission for division of the properties by mets and bounds in tune with the preliminary decree, these petitioners had challenged the order of the trial court filing a revision as C.R.P.No.1173 of 2002 before this Court. The challenge was raised on the ground that the decree passed in the suit was not binding on them since they have not been brought in as legal representatives of the 21st defendant in the appeal. That was repelled by this Court holding that whether the decree passed in the suit is binding on them on account of their nonimpleadment is to be considered in the final decree proceedings. Anyhow, the challenge canvassed against the appointment of the commission in the final decree proceedings was negatived by dismissal of that revision. Petitioners had also moved an application for reference to the Land Tribunal, the claim raised by them in respect of a building in the plaint property. They claimed of conducting a saw mill in that building and contended they are entitled to the benefits under Section 106 of the Land Reforms Act. The application moved by W.P.(C).No.22167 of 2009 - O 3 the petitioners claiming that right was negatived by the learned Sub Judge and the order thereof was challenged by them in C.R.P.No.2467 of 1993. That revision was disposed of by order dated 20.9.2002 by this Court observing that their claim for the benefits under Section 106 of the Land Reforms Act is to be considered in the final decree proceedings after taking evidence. In view of the decision rendered by this Court in Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43) it was pointed out the claim of tenancy need not be referred to the Land Tribunal but has to be considered by the civil court. Ext.p1 is the copy of the order passed in the revision. Later, petitioners moved an application before the court below for remitting the commission report which had been prepared by the commissioner during the final decree proceedings before Ext.P1 order was passed in their revision contending that very many factors substantiating their claim of tenancy over the building were not taken into account by the commissioner. Since the right of the petitioners for the benefit under Section 106 of the Land Reforms Act got crystalised only by virtue of Ext.P1 order W.P.(C).No.22167 of 2009 - O 4 and so much so, at the time of preparation of the commission report which was much earlier those factors could not be brought to the notice of the commissioner, is the submission of the learned counsel to contend that the order passed by the court below dismissing the application for remission of the commission report is not proper and correct. Ext.P5 is the order passed by the learned Sub Judge declining the request of the petitioners for remission of the commission report. Writ petition is filed for setting aside Ext.P5 order directing the court below to pass appropriate orders by the learned Sub Judge, invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Having regard to the facts and circumstances presented and also the submissions made by the learned counsel on both sides, I find the question as to whether the commission report is to be remitted as requested by the petitioners would arise for consideration only on establishing of their entitlement of the claim canvassed under Section 106 of the Land Reforms Act, W.P.(C).No.22167 of 2009 - O 5 and by Ext.P1 order this Court had directed the civil court to examine that claim after taking evidence. So much so, the court below has to examine the claim of the petitioner as to whether they are entitled to claim of tenancy under Section 106 of the Land Reforms Act and then proceed with the question whether the report prepared earlier which is challenged by them is liable to be remitted for collecting further details. The fact that the petitioners have not canvassed the claim earlier till filing of this application is of not of much moment when there is already a direction by this Court to examine that question to determine the claim after taking evidence. I direct the court below to consider the claim canvassed by these petitioners under Section 106 of the Land Reforms Act, providing sufficient opportunity to both sides to lead evidence in support of their respective case and enter a finding thereof, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. Once such finding is entered into the court below will pass appropriate orders if warranted on their application for remitting the commission report. Ext.P5 will not W.P.(C).No.22167 of 2009 - O 6 stand in the way of the petitioners to challenge the commission report to the limited extent of the right claimed by them Section 106 of the Land Reforms Act provided a finding in their favour is made by the court after enquiry over the claim. Writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-