IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WP(C).No. 33515 of 2008(M) ---------------------------------------- AGAINST THE ORDER DATED 04/10/2008 IN IA.518/2008 IN OS.665/1997 of MUNSIFF COURT,ALUVA .................... PETITIONER(S): ------------------------- PADMANABHAN, AGED 42, S/O.AYYAPPAN, CHAKKANKULANGARA HOUSE, ERUMATHALA KARA, ALUVA EAST VILLAGE, ALUVA TALUK. BY ADVS. MR.P.N.RAMAKRISHNAN NAIR MR.P.VISWANATHAN RESPONDENT(S): ------------------------- 1. KARTHU, AGED ABOUT 58, W/O.AYYAPPAN, MULLAPPILLYTHADAM, CHEMBARAKKY KARA, VAZHAKKULAM VILLAGE. 2. RUGMINI, AGED ABOUT 56, W/O.KUZHIKKATTUMALAYIL, MOTTAKURUMBAN, CHALAKKAL KARA, ALUVA EAST VILLAGE. 3. SARASU,AGED ABOUT 53, W/O.AYYAPPAN KUTTY CHAKKANKULANGARA HOUSE, ERUMATHALA KARA, ALUVA EAST VILLLAGE, ALUVA TALUK. 4. BHAVANI, AGED ABOUT 45, W/O.STANLY, CHAKKANKULANGARA HOUSE, ALUVA EAST VILLAGE, ALUVA TALUK. 5. PARAMU, AGED 53, S/O.AYYAPPAN, CHAKKANKULANGARA HOUSE, KEEZHMADU, ALUVA EAST VILLAGE, ALUVA TALUK. 6. KURUMBAN, AGED ABOUT 55, S/O.AYYAPPAN, CHAKKANKULANGARA HOUSE, ALUVA EAST VILLAGE, ALUVA TALUK.(DIED) W.P.(C) NO.33515/2008 7. KALIKUTTY, AGED ABOUT 55, W/O.KURUMBAN, CHAKKANKULANGARA, KEEZHMADU ALUVA EAST VILLAGE, ALUVA TALUK. 8. RAJEEVAN, AGED ABOUT 35, S/O.KURUMBAN, CHAKKANKULANGARA, KEEZHMADU, ALUVA EAST VILLAGE, ALUVA TALUK. R1 TO R5 BY ADVS.MR.K.SREEKUMAR, MR.ABHILASH BHASKAR, MR.BINU JOHN, MR.C.M.AMEER ALI, MR.B.JAYASANKAR, MR.K.S.BHARATHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33515/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT IN OS.665/97 ON THE FILE OF THE MUNSIFF'S COURT, ALUVA. P1(a):- COPY OF THE DECREE PASSED IN OS. 665/97 ON THE FILE OF THE MUNSIFF'S COURT, ALUVA. P2:- COPY OF THE COMMISSION REPORT IN OS. 665/97 ON THE FILE OF THE MUNSIFF'S COURT, ALUVA. P2(a):- COPY OF THE SKETCH APPENDED WITH EXT.P2 REPORT. P3:- COPY OF THE OBJECTION TO THE EXT.P2 AND P2(a). P4:- COPY OF THE IA. 518/08 IN OS. 665/97 ON THE FILE OF THE MUNSIFF'S COURT, ALUVA. P5:- COPY OF THE SALE DEED NO.1244/96. P6:- COPY OF THE JUDGMENT PASSED IN OS. 9/99 ON THE FILE OF THE MUNSIFF'S COURT, ALUVA. P6(a):- COPY OF THE DECREE PASSED IN OS. 9/99 ON THE FILE OF THE MUNSIFF'S COURT, ALUVA. P7:- COPY OF THE ORDER PASSED IN IA. 518/08 IN OS. 665/97 ON THE FILE OF THE MUNSIFF'S COURT, ALUVA. TRUE COPY P.S. TO JUDGE tss P. BHAVADASAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 33515 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 16th day of March, 2010 JUDGMENT Aggrieved by order dated 4-10-2008 of the Munsiff’s Court, Aluva in I.A. No.518 of 2008 in O.S. No.665 of 1997, petitioner before the court below has come up in petition under Article 227 of the Constitution of India. 2. The parties are brother and sisters. They are children of Ayyappan. Respondents 1 to 5 filed a suit for partition in respect of 3.80 Ares of land comprised Resurvey No.13/60 in Block No.35 of Aluva East Village. Though defendants resisted the suit, pointing out that description of the property is incorrect, a preliminary decree was passed. A copy of the preliminary decree is produced as Ext.P1. The plaintiffs moved I.A. No.1310 of 2005 for passing a final decree. In the said final decree proceedings an Advocate Commissioner was deputed and report was obtained. Report and plan are produced as Exts.P2 and Ext.P2 (a) respectively. It is then contended that the Commissioner W.P.(C) No. 33515/08 2 wrongly identified and demarcated the property. It is pointed out that the Advocate Commissioner demarcated 4.10 Ares of property comprised in Resurvey No.13/49 in Block No.35 of Aluva East Village as plaint schedule property. 3. It appears that the petitioner herein instituted O.S. No.9 of 1999 for a declaration of title and other consequential reliefs. The plaintiffs in the partition suit were the defendants in O.S.No.9 of 1999. That suit was in respect of 4.10 Ares in Resurvey No.13/49 in Block No.35 of Aluva East Village and the plaint schedule property involved in partition suit was 10 cents in Resurvey No.13/60 in Block No.35 of Aluva East Village. In O.S. No.9 of 1999 it is seen that defendants remained ex parte and decree was passed in favour of the petitioner/plaintiff. 4. As matters thus stood, one may recollect that partition suit was in respect of 10 cents comprised in Resurvey No.13/60 in Block 35 of Aluva East Village and the declaratory suit was in respect of 4.10 Ares in R.S. No.13/49 in Block 35 of Aluva East Village. In the declaratory suit W.P.(C) No. 33515/08 3 though the defendants filed written statement, they did not further contest the matter and they were declared ex parte. 5. Going by the schedule of property in the partition suit, the property is 10 cents of Resurvey No.13/60 in Block No.35 of Aluva East Village and going by the schedule of property in O.S. No.9 of 1999 the property is 4.10 Ares of Resurvey No.13/49 in Block 35 of Aluva East Village. 6. It appears that thereafter the plaintiffs in the partition suit moved I.A No.577 of 2001 to amend the resurvey number of the plaintiff schedule property, which was dismissed. The matter was carried in revision before this Court. Vide Ext.R4 judgment the revision was dismissed, relevant portion of which reads as follows:- “The identity of the property can be established in further proceedings in the present suit as well. I find that the revision petitioner could not establish that the order of the court below suffered from any infirmity as such, based on the evidence adduced in the matter.” 7. I have already stated about the commission report. It shows that property involved in both the suits are one and W.P.(C) No. 33515/08 4 the same. That prompted the plaintiff in O.S. No.9 of 1999 to move I.A. No.518 of 2008 to remit the commission report and plan. In that application the court below has found that decree was obtained in favour of petitioner in I. A. No.518 of 2008 by fraud and not binding on respondents in the application. This order is under challenge in this writ petition. 8. The learned counsel appearing for the petitioner invites my attention to the pleadings, judgment in O.S.No.665 of 1997 and also the evidence. It is pointed out that consistent case of the plaintiffs in the partition suit that they were seeking partition of 10 cents of property comprised in Resurvey No.13/60 in Division No.35 of Aluva East Village. It is also pointed out that they were parties to the suit filed by him in O.S. No.9 of 1999. They filed written statement and remained ex parte. The learned counsel for the petitioner points out that the property involved in O.S. No.9 of 1999 was 4.10 Ares comprised in Resurvey No.13/49 of Aluva East Village. Therefore, according to the learned counsel, there is nothing to indicate that the W.P.(C) No. 33515/08 5 property involved in two suits are one and same, except for the present commissioner's report. The learned counsel for the petitioner points out that if the defendants in O.S. No.9 of 1999 are aggrieved by the judgment and decree, they have to file an appeal. At any rate, the scope of I.A. No.518 of 2008 filed by the petitioner is very limited. 9. Per contra, the learned counsel appearing for the contesting respondents points out that by an inadvertent mistake, the Resurvey was shown as No.13/60 of Aluva East Village. It is pointed out that the 1st defendant in the suit for partition i.e., Kurumban who is also son of Ayyappan had obtained 10 cents of property. It is also pointed out that by Exts.R1 and R2 Kurumban assigned the entire property obtained by him. After the death of Ayyappan, Kurumban, who is the eldest member of the family, managed to get purchase certificate and it deemed to be on behalf of the family. If that be so, by assignment from Kurumban the petitioner before the court below cannot raise independent claim. 10. The above claim may be true and may not be W.P.(C) No. 33515/08 6 true? But, however, the question as to whether the decree obtained by the plaintiff in O.S. NO.9 of 1999 is vitiated by fraud dos not arise in the present proceedings. True it has been found that the plaint schedule property involved in both the suits is one and the same. The remedy available to the respective party is to be worked out in accordance with procedure known to law. The court below was not justified in rendering the decision as to the validity of the decree in O.S. No.9 of 1999 in a petition to remit commissioner's report. 11. In the result, the writ petition is allowed to a limited extent and finding regarding the validity of the decree in O.S. No.9 of 2009 is set aside and that issue is left open to be decided in appropriate proceedings at appropriate stage. P.BHAVADASAN, JUDGE. mn.