Kerala High Court
C.Nagamma vs Dr.Lekshmi S.Purushothaman on 22 November, 2014
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
SATURDAY, THE 22ND DAY OF NOVEMBER 2014/1ST AGRAHAYANA, 1936
OP(C).No. 1057 of 2014 (O)
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PETITIONERS :
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1. C.NAGAMMA
W/O.KUMARA SWAMI PILLAI, 'SAI BHAVAN', THANNIMOODU
PANACHAMOODU P O, VELLARADA
2. RAJA RAJESWARI,
D/O.NAGAMMA-DO-
3. BHUVANESWARI,
D/O.NAGAMMA OF -DO-
4. AMBIKA, D/O.NAGAMMA OF -DO-
5. CHANDRIKA,
D/O.NAGAMMA OF -DO-
6. SREEMURUKAN,
S/O.KUMARA SWAMI PILLAI-DO-
7. GOPAKUMARAN,
S/O.KUMARA SWAMI PILLAI-DO-
BY ADV. SRI.K.B.PRADEEP
RESPONDENTS :
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DR.LEKSHMI S.PURUSHOTHAMAN,
D/O.SARASWATHY,KEEZHARA VEEDU, IRINJALAKUDA VILLAGE,
MUKUNDAPURAM TALUK, THRISSUR DIST
R1 BY ADV. SMT.S.KARTHIKA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22-11-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
bp
OP(C).No. 1057 of 2014 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1:- PHOTOCOPY OF THE PLAN AND DECREE IN OS NO 159/72 DTD 30/6/1980 OF
THE SUB COURT, THIRUVANANTHAPURAM.
P2:- PHOTOCOPY OF THE REPORT OF VILLAGE OFFICER DTD 2 /4/2007.
P3:- PHOTOCOPY OF THE OBJECTION IN EA NO 199/2007 DTD 14/6/2007 FILED BY
THE IST RESPONDENT.
P4:- PHOTOCOPY OF THE AGREEMENT EXECUTED BETWEEN THE DECREE
HOLDER PURUSHOTHAMAN AND THE PETITIONERS DTD 22/10/2009.
P5:- PHOTOCOPY OF THE REPORT OF THE VILLAGE OFFICER, KUNNATHUKAL
DTD 23/7/2012.
P6:- PHOTOCOPY OF THE ORDER IN OP C NO 1201/2013 DTD 25/3/2013 OF THE
HONOURABLE COURT.
P7:- PHOTOCOPY OF THE ORDER DTD 29/6/2013 IN EP NO 7/1994 OF THE SUB
COURT, NEYYATTINKARA.
P8:- PHOTOGRAPH OF THE DEMOLITION OF PETITIONER'S FAMILY HOUSE
P9:- PHOTOCOPY OF THE JUDGMENT DTD 5/7/2013 IN WPC NO 2251/2013 OF THIS
HON'BLE COURT.
P10:- PHOTOCOPY OF THE EA NO 174/2013 IN EP NO 7/1994 OF THE SUB COURT
NEYYATTINKARA DTD 8/7/2013.
P11:- PHOTOCOPY OF THE EA.NO 175/2013 IN EP NO 7/1994 OF THE SUB COURT,
NEYYATTINKARA DTD 8/7/2013.
P12:- PHOTOCOPY OF THE EA NO 176/2013 IN EP NO 7/1994 OF THE SUB
COURT,NEYYATTINKARA DTD 8/7/2013.
P13:- PHOTOCOPY OF THE COMMON ORDER DTD 23/7/2013 IN EA 174/13.,175/13
AND EA 176/2013 IN EP 7/1994 IN OS NO 159/1972 OF THE SUB COURT,
NEYYATTINKARA.
P14:- PHOTOCOPY OF THE THANDAPPER ACCOUNT IN THE NAME OF
RESPONDENT AND PETITIONERS PREDECESSOR
RESPONDENT(S)' EXHIBITS : NIL.
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//TRUE COPY//
P.A. TO JUDGE
bp
P. BHAVADASAN, J.
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O.P. (C) No.1057 OF 2014
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Dated this the 22nd day of November, 2014
JUDGMENT
A tireless litigant, the defendant is again before this court after having moved this court several earlier occasions and was slapped with adverse orders. Now she is before this court on a different ground unwilling to give a quietus to the litigation.
2. The facts absolutely necessary for the adjudication of this original petition are as follows:
In a suit for partition, there were preliminary decree followed by a final decree. As per the preliminary decree the plaintiffs were granted 9/12 shares and rest of the sharers were allotted D1, D2 and D6.
3. Final decree proceedings were initiated. A commissioner was deputed for measurement of the property and to identify and allot the property proportionate to the sharers of each party. The commissioner identified 'COLK' as available to plaintiffs and the plots due to D1, D2 and D6 was identified as 'ODEA'. It is an admitted fact that delivery of 'COLK' plot was effected on 20.10.2009. There were several proceedings before this court with respect to the delivery so O.P.(C) No.1057/2014 2 effected complaining of excess delivery etc. and also for deputing a commission to ascertain the identity of property delivered claiming it to be in excess than what is due to the respondents. Exts.P6 and P9 bear testimony of these facts. On all those occasions, this court had noticed that plan submitted by the Advocate commissioner in the suit which was appended to the decree was sufficient to identify the plots set apart to the sharers and another Advocate commission is not required for further identification or measurement. In fact, in O.P. (C) No.1201/2013 preferred by the petitioner herein, it is observed that no further enquiry in terms of Order XXVI of CPC is warranted to find out the property to be delivered as sought for in E.P. No.7/1994. The petitioner again approached this court complaining of identification and delivery of property by way of O.P.(C) No.2251/2013. This court, after elaborately referring to the issues of the case and also the fact that the O.P. was filed suppressing several crucial facts, had observed as follows:
"11. As has been stated above, the property was identified with the help of the District Superintendent of Survey and the Advocate Commissioner and the report and plan were accepted by the execution court. It was found that O.P.(C) No.1057/2014 3 the plot 'COLK' could be properly identified. Since the judgment rendered by this court in W.P.(C) No.5233/2009 has attained finality in view of the fact that the SLP was dismissed, it is really condemnable that the petitioner has again moved this Court by filing another petition seeking almost the same relief and raising almost the same contentions. It only shows the unabashed brazenness or the adamantine audacity of the petitioner to move this Court again and again raising very same contentions disregarding or unmindful of the fact that all his objections were turned down by this Court on earlier occasions and that the Hon: Supreme Court has dismissed the SLP filed by him (That SLP was filed by this petitioner and other legal heirs of deceased 6th defendant). In this connection the fact that the order passed by the execution court dated 12.6.2007, that all unauthorised constructions other than the two buildings covered under the suit O.S.816/1985 are to be demolished, was not at all challenged also assumes relevance. That order also became final as has been noted by this Court in W.P.(C) No.5233/2009. It appears that this judgment was suppressed when the petitioner filed O.P.(C) No.1201/2013 before this Court. An order was passed by this Court in R.P.3/2013 in O.P.(C) 4342/2012 that the identification and delivery of the property if already done in the earlier stage of E.P.7/1994 shall be taken into consideration by the court below in passing final orders. Further, there was a direction that the entire exercise shall be completed within a period of two months from the date of the order namely; within two months from 1.2.2013. Most of those orders and judgments were suppressed by the petitioner while filing this petition and was projecting a case that there is an old building situated in O.P.(C) No.1057/2014 4 the plot 'COLK' and that, that was not included as per the final decree. In the light of the judgments and orders passed earlier that the plot 'COLK' has already been identified by the Advocate Commissioner and the District Survey Superintendent, the challenge against the same is found to be unmerited.
12. The contention that the Advocate Commissioner should not be directed to put up a compound wall also cannot be questioned in the peculiar circumstances of this case. It is in order to see that the plot actually delivered is identifiable and to have no further controversy regarding the boundary a small compound wall was directed to be put up. That was actually necessary because, on going through the judgments and orders earlier, it could be seen that the petitioner and other legal heirs of deceased 6th defendant were bent upon putting up unauthorised constructions in plot 'COLK' only to see that the delivery is not effected contending that there is no decree for demolition of the building etc. Therefore, in order to see that the proper delivery is effected the impugned order was passed by the executing court. It cannot be found to be illegal so as to invoke the visitorial jurisdiction of this Court under Article 227 of the Constitution of India. There is absolutely no merit in this petition."
4. The current complaint of the petitioner is that at the time of putting up of a compound wall the decree-holder, or the persons who had been allotted plot 'COLK' has annexed a good portion of the property belonging to the petitioner and others and it was to ascertain that fact, a commissioner was O.P.(C) No.1057/2014 5 being sought for. Three applications were filed before the lower court, one for stay and one for issuance of a commission and another for compensation. The court below, after referring to the various decisions rendered previously by this court, dismissed E.A. No.174/2013 and other Interlocutory Applications by a common order.
5. The learned counsel appearing for the petitioner reiterated to the very same contentions urged before the court below which did not find favour with the execution court. It is significant to notice that from Ext.P9, it is clearly discernible that a compound wall was put up in the presence of an advocate commissioner itself. It is difficult to believe that the commissioner would have permitted the decree holder to put up a compound wall annexing the property which belonged and was allotted to the petitioners herein. In furtherance of the final decree proceedings and orders of this court there had been a number of proceedings between the parties and in all those proceedings including the one taken up even to the Apex court, the final decree was confirmed and the plan which was appended to the final decree had been upheld. They have become final and conclusive between the parties. O.P.(C) No.1057/2014 6
6. There were several attempts on the part of the petitioner and others to see that the property is not delivered including the putting up structure in the property that stood allotted to the plaintiff in the suit. After a herculean task, the plaintiffs were able to get delivery of the property but the matter did not end. The petitioners approached this court on several subsequent occasions for various grievances which really did not exist. This court rejected those complaints and held that in the light of the identification already made there was no scope for further identification. There is no basis for the complaint that while putting up a compound wall a larger extent of property has been annexed and what is due to the plaintiff. The said claim is mainly based on the 'Thandaper extract' which is produced along with this original petition, wherein it is shown that the plaintiffs having possession of 90 cents, whereas they are allotted only 60 cents.
7. Obviously, entry in the 'Thandaper register' cannot be a criteria for coming to the conclusion that delivery of more extent of the property than actually due had been made. There is nothing to show that any extent of property in excess than of what was due to the plaintiff as per the commission O.P.(C) No.1057/2014 7 report and that declared by this court had been delivered. There is also nothing to show that the compound wall put up in the presence of a commissioner was beyond the boundary limits of the property allotted to the plaintiff in the suit.
For the above reasons, this original petition is without any merits and the lower court has not erred in any manner passing the impugned order. This original petition is dismissed.
Sd/-
P. BHAVADASAN, JUDGE.
//true copy// P.S. To Judge St/-