IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 WP(C).No. 21894 of 2011(J) -------------------------------------- PETITIONERS: --------------------- 1. KALI THEVI, THARAYIL VEETTIL, EDATHITTA MURIL, KODUMON VILLAGE, EDATHITTA P.O., PIN-691 555. 2. KALI KURUMBA, PARIDIYAM VILA VEEDU, ERUMAKUZHI MURI, NOORANADU VILLAGE, NOORANADU P.O., PIN-690 504. BY ADV. SRI.K.K.JOHN. RESPONDENTS: ------------------------ 1. THE ADDL. TAHSILDAR, TALUK OFFICE, KOTTARAKKARA-691 506. 2. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. SANKARAN KRISHNAN, KALLUVETTAMKUZHI VADAKKETHIL PURAYIDOM, KULAKKADA KIZHAKKU MURI, KULAKKADA VILLAGE, KOTTARAKKARA TALUK, KULAKKADA P.O., PIN-691 521. 4. SANTHA, W/O. KRISHNAN, KALLUVETTAMKUZHI VADAKKETHIL PURAYIDOM, KULAKKADA KIZHAKKU MURI, KULAKKADA VILLAGE, KOTTARAKKARA TALUK, KULAKKADA P.O., PIN-691 521. 5. SANKARAN SASIDHARAN, REGHU BHAVAN, THEKKEPURA PUTHEN VEEDU, KALLUVETTAMKUZHI, KULAKKADA KIZHAKKU MURI, KULAKKADA VILLAGE, KOTTARAKKARA TALUK, KULAKKADA P.O., PIN-691 521. W.P.(C).NO.21894/2011-J: 6. SANKARAN RAJENDRAN, KALLUVETTAMKUZHI, KULAKKADA KIZHAKKU MURI, KULAKKADA VILLAGE, KOTTARAKKARA TALUK, KULAKKADA P.O., PIN-691 521. 7. CHANDRAMATHI, D/O. SANKARAN, ATHIRA BHAVAN, KULAKKADA KIZHAKKU MURI, KULAKKADA VILLAGE, KOTTARAKKARA TALUK, KULAKKADA P.O., PIN-691 521. 8. REMANI, D/O. SANKARAN, AJITH BHAVAN, KULAKKADA KIZHAKKU MURI, KULAKKADA VILLAGE, KOTTARAKKARA TALUK, KULAKKADA P.O., PIN-691 521. R1 & R2 BY SR. GOVT. PLEADER SRI. GEORGE VADAKKEL, R5 TO R7 BY ADVS. SRI.B.MOHANLAL, SRI.T.PRASAD, SRI.SAIJU S. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.21894/2011-J: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE FINAL JUDGMENT IN O.S. NO. 90/82 OF THE MUNSIFF COURT, KOTTARAKKAR DTD. 30/06/09. EXT.P.2: COPY OF THE DELIVERY REPORT PREPARED BY THE AMIN OF THE KOTTARAKKARA MUNSIFF COURT DTD. 28/01/2011. EXT.P.3: COPY OF THE ORDER OF THE ADDL. TAHSILDAR, KOTTARAKKARA DTD. 02/07/2011. EXT.P.4: COPY OF THE I.A. NO.939/2011 BEFORE THE SUB COURT, KOTTARAKKARA DTD. 10/06/2011. RESPONDENT'S EXHIBIT:- EXT.R5.A: COPY OF THE JUDGMENT IN UNNUMBERED APPEAL OF THIS HON'BLE COURT DTD. 26/05/2011. //TRUE COPY// P.A. TO JUDGE Prv. ANTONY DOMINIC, J ....................................................... W.P.(C).21894/2011 .............................................. Dated this the 28th day of September, 2011 JUDGMENT The challenge in the writ petition is against Ext.P3. Petitioners and the father of respondents 3 to 8 are brothers. It appears that a Suit for partition as O.S.90/1982 was filed before the Munsiff's Court, Kottarakkara. In that Suit preliminary decree was passed in the year 1999 and final decree was also passed. According to the petitioners, based on the final decree, Execution petition was filed and petitioners' share was also delivered to them. It is stated that on the strength of the property so delivered, they applied for mutation and by Ext.P3, mutation was declined on the ground that I.A.939/2011 was pending before the Sub Court. It is on receipt of Ext.P3, challenging the same the writ petition has been filed. 2. The contention raised by the learned counsel for the petitioners is that the respondents had filed an appeal against the preliminary decree passed by the trial Court as A.S.54/1999 before the Principal Sub Court, Kottarakkara. It is stated that the appeal was dismissed for default and that the said judgment was W.P.(C).21894/11 2 challenged before this Court by filing an unnumbered RSA. The same was posted for hearing on 26th May, 2011, and was dismissed with liberty to the appellants therein to seek restoration of the appeal before the first appellate Court. Accordingly I.A.939/2011 was filed and that the appeal A.S.54/1999 is still not restored. It is stated that therefore, the pendency of I.A could not have been a reason for declining mutation of the property as sought for by the petitioners. 3. On the other hand, learned counsel appearing for respondents 5 to 8 submits that if restoration is allowed and appeal is restored to file and eventually allowed the preliminary decree, on that basis which the property ultimately delivered to the petitioners itself will not survive, and if so, mutation effected will also have to be undone. 4. As at present, petitioners are entitled to enjoy the property delivered to them and also entitled to get the property mutated in their favour. Therefore I quash Ext.P3 and direct that the property be mutated in favour of the petitioners as sought for by them. W.P.(C).21894/11 3 However it is clarified that in case the appeal A.S.54/1999 filed by the respondents is restored to file and is allowed, it will be open to the parties to get the mutation cancelled. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs