IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 WP(C).No.30314 of 2008 (G) ---------------------------------- OS.1271/1993 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: --------------- SUJATHA, D/O.SULOCHANA, ERATTAKULANGARA VEEDU, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENTS: ----------------- 1. NIRMALA ANTONY LASSLOTT, W/O.ANTONY MICHAEL LASSLOTT, THENGAZHAIKATHU VEEDU KARAVALLOOR VILLAGE, NARICKAL, PATHANAPURAM,KOLLAM NOW WORKING & R/AT POST BOX NO.45030,ABUDABI U.A.E REP. BY POWER OF ATTORNEY HOLDER WILLSON MULLASSERY S/O.GEE VARGHESE PAPPACHAN, TC 17/1296(8), SANJAY RESORTS, VIVEKANANDA NAGAR, THIRUMALA, THIRUVANANTHAPURAM. 2. K.SUGATHAN, ERATTAKULANGARA VEEDU, KADAKAMPALLY, THIRUVANANTHAPURAM. 3. L.SUNEETHI OF DO. 4. SUPRIYA OF DO. 5. K.SUDHEER OF DO. ADV. SRI.M.DINESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.30314 of 2008 (G) APPENDIX PETITIONER'S EXTS Ext.P1:- COPY OF FINAL JUDGMENT IN O.S.1271/93 DT.08/08/05. EXT.P2:- COPY OF FINAL DECREE DT.08/08/05. EXT.P3:- COPY OF DELIVERY LIST. EXT.P4:- COPY OF COMMON ORDER DT.22/09/08. //TRUE COPY// P.A. TO JUDGE K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.30314 of 2008 ------------------------------------------------ Dated this the 27th day of November, 2008 JUDGMENT I have heard arguments of counsel on both sides elaborately. 2. In this Writ Petition filed by the decree holder in O.S.1271/93 on the file of the First Additional Sub Court, Thiru- vananthapuram, the relief that is sought for is to quash Ext.P4. Ext.P4 is common order dt.22/09/08 on E.A. Nos.1521 and 1523 of 2007 and E.A.47/08 in E.P.419/06 in O.S.1271/93 as also E.A.233/08 and I.A.1886/08 therein. All these applications came up before the trial court in the wake of delivery effected by the execution court in favour of the petitioner of an item of property which is shown in the plan appended to the final decree in O.S.1271/93. The property so delivered over is the 'E' plot shown in the plan appended to the decree. When W. P. C. No.30314 of 2008 -2- it was delivered over, the first respondent who was not a party to the suit filed petition for restoration of possession on the ground that she was illegally dispossessed of the property in her possession. The property in her possession according to her was property comprised in Sy. No.1562 of Kadakampally Village in Thiruvananthapuram thaluk whereas the decree schedule property is shown as property comprised in Sy. No.1551 of the same village. In the meanwhile, the decree holder filed petitions to correct the Sy. number of the scheduled property in O.S.1271/93 as survey No.1562 altering the survey number mentioned as survey No.1551. The execution court which dealt with all the applications including I.A.1886/08 transferring that I.A. to the execution side considered the entire matter and dismissed the applications filed by W. P. C. No.30314 of 2008 -3- the decree holder for amendment of the Sy. Number and ordered redelivery of the property delivered over to the petitioner back to the first respondent who complained that she was dispossessed of the property illegally finding that the property held by her is not part of the decree schedule property. 3. During arguments before me counsel for the petitioner submits that the real survey number of the property is 1562 and not 1551 and it is not the survey number to decide the identity of the property covered by the decree and that if the decree schedule property is shown to be taking within it the property that was found to be in possession of the first respondent she is entitled to get delivery of the said property. On the other hand, the contention of the first respondent is that decree has been obtained only for partition of W. P. C. No.30314 of 2008 -4- the scheduled property comprised in Sy. No.1551 and therefore, the decree schedule property is entirely a different property and the property that belongs to her is not part of the decree schedule property. All the same, according to the first respondent, the title document in her favour is Ext.A2 marked in Ext.P4 proceedings; that her immediate prior title deed is A11 and that prior title deed of Ext.A11 is Ext.A15. In Ext.A15 the description of the property covered by the said document is as property comprised in Sy. No.1562 of Kadakampally village. The question therefore, is as to whether the property which was derived by the first respondent by assignments pursuant to Ext.A15 is the same property that was subject matter of the partition suit though survey number of the scheduled property was shown as 1551. It is not evident in this W. P. C. No.30314 of 2008 -5- proceeding as to how the survey number happened to be incorporated as Survey No.1551 if the Survey Number was actually 1562. All the same, the counsel for the first respondent also is agreed on the broad principle that if Ext.A15 under which the first respondent is claiming a portion of the property assigned to her under Ext.A2 is the same as the scheduled property then the transfer in favour of herself and all her predecessors by defendants 1 and 5 in the suit who are executants of Ext.A15 will be hit by lis pendens as the suit O.S.1271/93 was filed on 18/10/93 and Ext.A15 was executed by defendants 1 and 5 thereafter on 21/10/93 after the suit. So the only question that remains for adjudication is as regards identity of the property in relation to which the petitioner/plaintiff claimed partition as against defendants 1 to 6 in that W. P. C. No.30314 of 2008 -6- suit who were her mother, brothers and sisters. If the property is the same as is shown in the plan appended to Ext.P2 decree and is actually comprised in Sy. No.1562 and not in Sy. No.1551 then the allotment of 'E' schedule plot shown in the plan cannot be faulted and the petitioner will be entitled to get delivery of the property shown as 'E' plot as per the decree in the suit O.S.1271/93. However, the first respondent has no case that Ext.P2 plan relates to property in Sy. No.1562 a portion of which is claimed as her property. In the circumstances, Ext.P2 plan which shows possession of various plots by persons mentioned therein constructing also buildings therein and the road shown in Ext.P2 will be sufficient indication to identify the property transferred under Ext.A15 by defendants 1 and 5 and the question whether the 41 cents W. P. C. No.30314 of 2008 -7- scheduled in the plaint is the same as shown in the plan attached to Ext.P2 decree or the parties to the suit has any other property which could have been the property scheduled in the suit are matters which deserve detailed consideration before a delivery is again effected in execution of Ext.P2 decree. 4. In the result, setting aside Ext.P4 common order on the various execution applications and interlocutory applications, I remit the case back to the court below to consider the identity of the property shown in the plan annexed to Ext.P2 decree as being the same as the decree schedule property whether it be comprised in Sy. No.1551 or 1562 or as to whether the partition sought for was in relation to some other property that belonged to the sub tharavad of plaintiffs and defendants 1 to 6 in the suit and whether W. P. C. No.30314 of 2008 -8- Ext.A15 is executed by defendants 1 and 5 in relation to the same property scheduled to the plaint and sought to be got partitioned. A finding on the identity of the property will solve the dispute as in the event of Ext.A15 property being the same as the scheduled property the transaction will be hit by lis pendens and the first respondent who got property by subsequent assignments under Ext.A15 documents which is hit by lis pendens will not get any right to be adjudicated on the execution side and the position would be just the reverse if the property is different. The court below shall consider all the above aspects in the light of the observations made above and dispose of the petitions afresh by a considered order affording sufficient opportunity for both sides to adduce all evidence which they want to let in evidence W. P. C. No.30314 of 2008 -9- whether documentary or oral. The parties shall appear in the court below positively on 05/01/09. 5. This Writ Petition is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/-