Kerala High Court
Naseera Beevi vs Majida Beevi on 8 April, 2016
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 6TH DAY OF DECEMBER 2017/15TH AGRAHAYANA, 1939
OP(C).No. 3158 of 2016 (O)
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(AGAINST I.A. No.1286/2016 IN OS No.13/2016 ON THE FILE OF SUBORDINATE
JUDGES COURT, ATTINGAL)
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PETITIONERS/PETITIONERS/DEFENDANTS 1 & 2 :
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1. NASEERA BEEVI
AGED 62, W/O. HUSSAIN, REHNA MANZIL,
THATTATHUMALA P.O., THIRUVANANTHAPURAM DISTRICT.
2. ABIDA BEEVI
AGED 68, W/O. IBRAHIM KUNJU, RAGHOM,
THAKARAPARAMBU, PONGANADU P.O.,
THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.LIJU. M.P
RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 3 TO 5 :
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1. MAJIDA BEEVI
AGED 65, W/O. ABDUL VAHID,
VAHID MANDIRAM, THATTATHUMALA P.O.,
THIRUVANANTHAPURAM DISTRICT - 695 614.
2. SHIBU
AGED 39, S/O. ABDUL VAHID,
VAHID MANDIRAM, THATTATHUMALA P.O.,
THIRUVANANTHAPURAM DISTRICT - 695 614.
3. SHYNA
AGED 37, D/O.ABDUL VAHID,
VAHID MANDIRAM, THATTATHUMALA P.O.,
THIRUVANANTHAPURAM DISTRICT - 695 614.
4. SHEENA
AGED 34, D/O.ABDUL VAHID,
VAHID MANDIRAM, THATTATHUMALA P.O.,
THIRUVANANTHAPURAM DISTRICT - 695 614.
OP(C).No. 3158 of 2016 (O)
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5. SEENATHA BEEVI
AGED 52, W/O. BASHEER,
R.S.VILLA, KUMMIL P.O.,
KOLLAM - 691 536.
6. RAJANA
AGED 33, D/O. BASHEER, R.S.VILLA,
KUMMIL P.O., KOLLAM - 691 536.
7. SHEEFNA
AGED 28, D/O. BASHEER,
R.S.VILLA, KUMMIL P.O.,
KOLLAM - 691 536.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06-12-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 3158 of 2016 (O)
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APPENDIX
PETITIONERS' EXHIBITS :
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P1 TRUE COPY OF THE PLAINT IN OS NO. 13/2016 ON THE FILE OF
SUBORDINATE JUDGES COURT, ATTINGAL DATED 08.4.2016.
P2 TRUE COPY OF THE DEATH CERTIFICATE OF ABDUL VAHID
DATED 19.10.2016.
P3 TRUE COPY OF THE DEATH CERTIFICATE OF MUHAMMAD PATHUMMAL
DATED 15.10.2011.
P4 TRUE COPY OF THE WRITTEN STATEMENT OF PETITIONER IN
OS NO. 13/2016 ON THE FILE OF SUBORDINATE JUDGES COURT,
ATTINGAL DATED 20.10.2106.
P5 TRUE COPY OF THE PETITION IN IA NO. 1286/2016 IN OS NO. 13/2016
DATED 28.10.2016.
RESPONDENTS' EXHIBITS :
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NIL
ttb
/TRUE COPY/
PS TO JUDGE
ALEXANDER THOMAS, J.
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O.P.(C) No. 3158 of 2016
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Dated this the 6th day of December, 2017
JUDGMENT
The two petitioners herein are defendants 1 and 2 in O.S. No.13/2016 instituted by respondents 1 to 4 before the Court of Sub Judge, Attingal. The suit is for partition. Respondents 5 to 7 herein are defendants 3 to 7 in the Suit. The plaintiffs, who are the legal representatives of late Abdul Vahid, claim right over the plaint schedule property which belongs to the mother of Sri.Abdul Vahid, viz Muhammad Pathummal. The petitioners would contend that Sri.Abdul Vahid, who is the predeceased son of Smt.Muhammed Pathummal, cannot claim right over the plaint schedule property and that the Suit itself is not maintainable. The petitioners/defendants 1 and 2 have filed Ext.P5 application, I.A. No.1286/2016 in O.S. No.13/2016 on 28.10.2016 for hearing on the question of maintainability as a preliminary issue and that the said application is still pending. According to the petitioners, considering the nature of the contention caused by them which goes to the root of the matter, the issue regarding maintainability, is to be heard and decided at the OP(C) :3158 of 2016 -:2:- earliest. In the light of this aspect, the petitioners have filed the instant Original Petition enabling the provision under Article 227 of the Constitution of India with the following prayers :
i) To direct the Subordinate Judges Court, Attingal to dispose of Ext.P5, I.A. No.1286/2016 in O.S. No.13/2016 on the file of the Subordinate Judges Court, Attingal at the earliest;
ii) Direct the Subordinate Judges Court, Attingal to hear and dispose of the question of maintainability of the suit, viz,O.S. No.13/2016 on the file of the Subordinate Judges Court, Attingal as preliminary issue, at the earliest at any rate within a time limit as fixed by this Hon'ble Court; and
iii) Such other reliefs this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the case."
2. Heard Sri.Liju M.P., learned counsel appearing for the petitioners. In the nature of the orders proposed to be passed in this petition, notice to the respondents will stand dispensed with.
3. When the Original Petition had come up for consideration before this Court on 07.12.2016, this Court directed the Registry to secure a report from Sub Court, Attingal regarding the present stage of I.A. No.1286/2016 in O.S. No.13/2016 pending on the file of Sub Court, Attingal and the time required for the disposal of the same. It is seen that the Additional Sub Judge, Thiruvananthapuram is OP(C) :3158 of 2016 -:3:- holding charge of Sub Court, Attingal and has submitted a report dated 16.12.2016 addressed to the Registry of this Court, wherein it has been inter alia stated that the Suit is for partition and separate possession of the plaint schedule property. The defendants other than D1 And D2 are ex parte. The 2nd defendant has filed written statement and the Suit is now posted to 14.03.2017 for the written statement of the 1st defendant. I.A. No.1286/2016 is filed by the 2nd defendant praying to decide whether the plaintiffs are entitled to share over plaint schedule property as the first issue. Another application was filed by the 2nd defendant as I.A. No.1237/2016 for hearing the maintainability of the case as the first issue and both the applications are posted for objection and hearing and objections to the above applications have not yet been filed. Further it is also stated that six months' time may be granted to the said court for disposal of I.A.No.1286/2016 in O.S. No.13/2016. The above said report was furnished on 16.12.2016.
4. Sri.Liju M.P., learned counsel appearing for the petitioners would submit on the basis of instructions received from his party that even now Ext.P5, I.A.No.1286/2016 in O.S. No.13/2016, is still OP(C) :3158 of 2016 -:4:- pending consideration. The time limit suggested by the court below has expired long ago. Accordingly, in the interest of justice it is ordered that in case Ext.P5, I.A.No.1286/2016 in O.S. No.13/2016, is still pending consideration, then the court below shall take up the said I.A. for consideration without any further delay and take all reasonable measures possible to ensure speedy disposal of the same in accordance with law, preferably within a period of three months from the date of production of a certified copy of this judgment. Petitioners would request that they should be given an opportunity to adduce evidence on the factum of death of Abdul Vahid and Muhammad Pathummal. The court below will grant reasonable opportunity in that regard to the petitioners to adduce evidence on those aspects.
With these observations and directions, this Original Petition (Civil) stands finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE ttb