IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 OP(C).No. 1027 of 2010(O) ------------------------ IA 885/2010 IN OS.163/2009 of MUNSIFF COURT, KALPETTA .................... PETITIONER : -------------------- ELIYAMMA KURIAN, AGED 74 YEARS, W/O.LATE T.K.KURIAN, "SKYLARK" KARIAMBADI POST, MUTTIL NORTH VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADVS. SRI.P.C.CHACKO (PARATHANAM) SMT. ASHA CHACKO RESPONDENT : ----------------------- THE MANAGER, CATHOLIC SYRIAN BANK LTD., MARKET ROAD, ERNAKULAM POST, VILLAGE AND DISTRICT, COCHIN - 35. BY ADV. SRI.RAJESH THOMAS THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 1027 of 2010(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE IA NO. 885/2010 IN OS NO. 163/09 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, KALPETTA. EXT.P2 : COPY OF THE COUNTER FILED BY THE RESPONDENT IN IA NO. 885/2010. EXT.P3 : COPY OF THE ORDER DATED 20.11.2010 PASSED IN IA NO. 885/2010 IN OS NO. 163/2009. EXT.P4 : COPY OF THE COMMISSION REPORT FILED IN IA NO. 630/2009 IN OS NO. 163/2009 DATED NIL IN THE MONTH OF AUGUST 2009. EXT.P5 : COPY OF THE FURTHER COMMISSION REPORT FILED IN OS NO. 163/2009 DATED 16.7.2010. RESPONDENT'S EXHIBITS : EXT.R1(a) : COPY OF THE ADDITIONAL ADVOCATE COMMISSIONER REPORT DATED 10.03.2010 ALONG WITH SURVEY PLAN. //TRUE COPY// P.S. TO JUDGE Mn THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No. 1027 of 2010 --------------------------------------- Dated this 10th day of November, 2011 JUDGMENT Ext.P3, order dated 20.11.2010 of the Court of learned Munsiff, Kalpetta on I.A.No.885 of 2010 in O.S.No.163 of 2009 refusing to remit the report and plan submitted by the Advocate Commissioner pursuant to the order on I.A.No.630 of 2009 is under challenge. 2. Item Nos.1 to 3 of the plaint schedule and certain other items belonged to Muhammedali, Ayoobkhan and others. The said properties were subjected to partition as per document No.1875 of 1983. According to the petitioner/plaintiff, item No.1 in the plaint schedule, 2.5 cents was allotted to the share of Muhammedali and his mother as H schedule in the said partition deed, the mother released her right to the said Muhammedali who, in turn transferred the property to the petitioner as per document No.786 of 2008. Item No.2 was allotted to the share of Ayoobkhan as per the said partition deed as I schedule. He is said to have sold that property to the petitioner as document No.789 of 2008. Item No.3 is 10 cents which according to the petitioner, the mother of Muhammedali and Ayoobkhan got as per the O.P(C).No.1027 of 2010 -: 2 :- partition deed above stated. The mother transferred the 10 cents to Muhammedali as per document No.1307 of 2003. Muhammedali transferred that property to the petitioner as per document No.2653 of 2008. While so, as per order passed by the learned Chief Judicial Magistrate, Kalpetta under provisions of the SARFACI Act, the Advocate Commissioner is said to have come to the suit properties to take possession thereof claiming that the said properties are subject to an equitable mortgage in favour of the respondent created by the said Ayoobkhan. Petitioner filed O.S.No.163 of 2009 seeking a decree for prohibitory injunction against forcible dispossession contending that item Nos.1 to 3 are not the properties mortgaged to the respondent and that the equitable mortgage created by Ayoobkhan related to the 33 cents covered by document No.1113 of 2003. It would appear that the Advocate Commissioner inspected the property thrice, once with the assistance of the Surveyor also and submitted reports and sketches/plan. Ext.R1 (a), report and plan submitted by the Advocate Commissioner pursuant to the order on I.A.No.630 of 2009 was sought to be remitted to the Commissioner vide request made by the petitioner in I.A.No.885 of 2010 claiming that the Advocate Commissioner and Surveyor have not properly identified the properties and that the property which is the subject matter of O.P(C).No.1027 of 2010 -: 3 :- equitable mortgage as per document No.1113 of 2003 has not also been properly identified. Learned Munsiff dismissed the application by Ext.P3, order stating that report and plan are sufficient and remission is not required. 3. Learned counsel for petitioner contends that Ext.P3, order cannot be sustained and that having regard to the facts and circumstances of the case, it was necessary, proper and just that subject matter of the equitable mortgage was specifically identified since the respondent could proceed only against that property. Learned counsel has invited my attention to the various reports, sketches and plan to show that there is no proper identification of the said property. 4. Learned counsel for respondent contends that all the documents which petitioner relies upon are created after the equitable mortgage in favour of the respondent in January 2005. Hence the assignments in favour of petitioner are subject to the equitable mortgage in favour of the respondent. 5. Case of petitioner is that equitable mortgage was created over 33 cents covered by document No.1113 of 2003. It is not disputed that the said equitable mortgage was created by Ayoobkhan who claimed title and possession of the said 33 cents as per partition deed No.1875 of 1983. If the equitable mortgage is in respect of the said 33 cents, the said 33 cents has to be O.P(C).No.1027 of 2010 -: 4 :- identified with reference to partition deed No.1875 of 1983 and document No.1113 of 2003. Certainly if the transfer in favour of petitioner is in respect of the whole or any portion of the property subjected to equitable mortgage, such transfer being after creation of the equitable mortgage can only be subject to that equitable mortgage. For that, it has to be identified whether item Nos.1 to 3 described in the plaint schedule forms part of the 33 cents covered by partition deed No.1875 of 1983 and document No.1113 of 2003. On going through the reports, sketches and plan and particularly Ext.R1(a) which is prepared with the assistance of a Surveyor, such an exercise is not seen to be done by the Commissioner or the Surveyor. Hence I am inclined to think that for a fair and just disposal of the case and to settle the controversy, it is necessary to remit Ext.R1(a), report and plan (obtained as per order on I.A.No.630 of 2009) to the Commissioner for identification of the properties properly. In that view of the mater, Ext.P3, order passed by the learned Munsiff cannot be sustained. Resultantly this original petition is allowed. Ext.P3, order is set aside and I.A.No.885 of 2010 (in O.S.No.163 of 2009 of the Court of learned Munsiff, Kalpetta) will stand allowed. The report and plan obtained on I.A.No.630 of 2009 will stand remitted to the Advocate Commissioner who, with the assistance of the O.P(C).No.1027 of 2010 -: 5 :- Surveyor shall identify the 33 cents covered by partition deed No.1875 of 1983 and document No.1113 of 2003 (which is said to be the property subjected to equitable mortgage in favour of the respondent) and the properties covered by the sale deeds in favour of petitioner. The Commissioner shall ascertain whether any of the item Nos.1 to 3 or part of it forms part of the said 33 cents covered by partition deed No.1875 of 1983 and document No.1113 of 2003. In the plan to be prepared by the Surveyor, the said 33 cents and if any portion of item Nos.1 to 3 forms part of the said 33 cents, the same shall also be specifically identified and shown. If the respondent wants any further details to be ascertained through the Commissioner and Surveyor, it is open to the respondent to file work memo before the learned Munsiff who shall pass appropriate order on that work memo. The batta payable to the Commissioner and Surveyor (if any) and as may be fixed by the learned Munsiff shall be paid by petitioner and if any work memo is filed by the respondent and any matter is allowed to be ascertained, it is open to the learned Munsiff to direct the respondent also to bear a portion of the batta ordered. (THOMAS P. JOSEPH, JUDGE) Sbna/-