IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 OP(C).No. 1493 of 2011(O) ------------------------------------- O.S.74/1988 OF MUNSIFF COURT, KUTHUPARAMBA. .................... PETITIONER ------------------- ALUMPARAMBIL KURIAKOSE, S/O.KURIAN, AGED 67 YEARS, PENSIONER, AYYAMKUNNU AMSOM AND DESOM, P.O. EDAPUZHA, THALASSERY TALUK. BY ADV. SRI.K.V.PAVITHRAN, SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL. RESPONDENT(S): ------------------------- 1. PULIKKAL THRESIAMMA, D/O.JOSEPH, 72 YEARS, NO OCCUPATION, AYYAMKUNNU AMSOM DESOM, (PO) EDAPUZHA, THALASSERY TALUK, 642 043. 2. RAJU JOSEPH KUNNUMPURAM, 43 YEARS, WORKING IN RAILWAY, AYYAMKUNNU AMSOM DESOM, (PO). EDAPUZHA, THALASSERY TALUK, 642 043. 3. SHAJI JOSEPH, S/O.JOSEPH, 37 YEARS, AGRICULTURIST, AYYAMKUNNU AMSOM DESOM, (PO) EDAPUZHA,THALASSERY TALUK, 642 043. 4. GEETHAMMA JOSEPH, D/O.JOSEPH, 41 YEARS, TEACHER, AYYAMKUNNU AMSOM DESOM, (PO) EDAPUZHA,THALASSERY TALUK, 642 043. 5. SIBICHAN JOSEPH KUNNUMPURAM, S/O.JOSEPH, 37 YEARS, WORKING IN COMPANY, AYYAMKUNNU AMSOM DESOM, (PO) EDAPUZHA, THALASSERY TALUK, 642 043. R1 BY ADV. SRI.RAJU K.MATHEWS. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 1493 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE DECREE DATED 21/12/1990 IN O.S. NO.74/88 OF MUNSIFF COURT, KUTHUPARAMBA. EXT.P2 COPY OF THE COMMISSION PLAN DATED 26/02/1990 IN O.S. NO.74/88 OF MUNSIFF COURT, KUTHUPARAMBA. EXT.P3 COPY OF THE JUDGMENT OF HONOURABLE HIGH COURT IN S.A. NO.76/92 DATED 16/06/2004. EXT.P4 COPY OF THE DECREE IN O.S.281/2004, DATED 06/08/2010 OF MUNSIFF COURT, KUTHUPARAMBA. EXT.P5 COPY OF THE PLAN IN O.S.281/2004. EXT.P6 COPY OF THE REPORT IN O.S.28/2004. EXT.P7 COPY OF THE AFFIDAVIT IN I.A. NO.1120/2011 IN A.S. NO.179/2010. EXT.P8 COPY OF THE COUNTER IN I.A. NO.1120/2011. EXT.P9 COPY OF THE ORDER DATED 28/03/2011 IN I.A. NO.1120/2011. EXT.P10 COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER IN I.A. NO.1120/2011. EXT.P11 COPY OF THE AUCTION NOTICE ISSUED BY THE ADVOCATE COMMISSIONER. EXT.P12 COPY OF THE APPEAL MEMORANDUM IN A.S. NO.179/2010. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1493 of 2011 ==================================== Dated this the 21st day of November, 2011 J U D G M E N T Notices to respondents 2 to 5 are returned as unclaimed which in view of Rule 55 of the High Court Rules amounts to sufficient service. Moreover respondents 2 to 5 are the children of first respondent who has appeared through counsel. 2. Challenge is to Ext.P9, order whereby learned Sub Judge, appointed a Commissioner to auction the right to take usufructs from plots F and L marked in Ext.C5, plan appended to the decree of the learned Munsiff, Koothuparamba in O.S. No.281 of 2004. 3. That is a suit filed by the first respondent originally for fixation of boundary and later amended as one for recovery of possession of plots F and L as well. The suit was decreed in part allowing recovery of plot F. Petitioner-defendant and respondents, both aggrieved preferred A.S. No.163 and 179 of 2010. While so respondents filed I.A No.1120 of 2011 in A.S. No.179 of 2010 preferred by them for appointment of an Advocate Commissioner as above stated and the learned Sub Judge O.P(C) No.1493 of 2011 -: 2 :- passed Ext.P9, order. 4. Learned counsel for petitioner-first defendant contends that there was no occasion or necessity for learned Sub Judge to appoint an Advocate Commissioner to auction the usufructs since materials on record show that petitioner has been in possession of plots F and L for more than 20 years. Learned counsel submitted that first respondent had filed O.S.No.74 of 1988 in the court of learned Munsiff, Koothuparamba for a decree for prohibitory injunction against petitioner claiming to be in possession of properties including a portion of plot L, the suit was dismissed and the appeal and second appeal filed against it were also dismissed. According to the learned counsel it is not disputed that plots F and L are in the possession of petitioners and in the circumstances and particularly as there is no prayer for recovery of mesne profits it was not necessary to auction the right to take usufucts. Learned counsel contends that even mesne profits could have been allowed only with respect of the income collected by petitioner from the improvements if any effected by the first respondents and not for the income from the improvements effected by petitioner. 5. Learned counsel for first respondent contended that since the question whether respondents are entitled to get O.P(C) No.1493 of 2011 -: 3 :- possession of plot L is yet to be decided, an interim arrangement as directed in Ext.P9, order is proper and no interference is required. 6. Having heard counsel on both sides and in view of the amended plaint in O.S. No.281 of 2004 it cannot be disputed that plots F and L are in the possession of petitioner whatever be the duration of such possession as the parties may claim. In that view of the matter I am inclined to think that instead of directing the Advocate Commissioner to auction the usufructs it was appropriate for the learned Sub Judge to direct petitioner to deposit certain amount by way of income from plots F and L separately, having regard to the extent of property and improvements therein so that the said amount would go to the ultimate winner provided there is claim for recovery of mesne profits as respondents may be found entitled under law. Original Petition is allowed. Exhibit P9, order is set aside and I.A. No.1120 of 2011 is remitted to the learned Sub Judge. Learned Sub Judge may on the said application and after hearing counsel on both sides direct petitioner who is in possession of plot F and L to deposit the possible income that may obtained from the said properties (separately) at convenient intervals in the court. The question as to who is entitled to the said amount O.P(C) No.1493 of 2011 -: 4 :- deposited shall be decided while deciding the appeals having regarding to the reliefs prayed for in the suit and entitlement of respondents for mesne profits if any as provided under law. In case parties are not able to agree on a sum to be deposited as above in respect of plots F and L (separately), it is open to the learned Sub Judge to appoint an Advocate Commissioner to ascertain the possible income from the plots concerned. THOMAS P. JOSEPH, JUDGE. vsv