Kerala High Court
Mariamma Xavier vs Xavier Mathai
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938
OP(C).No. 2190 of 2016 (O)
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OS 368/2015 of MUNSIFF'S COURT, VAIKOM
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PETITIONER:
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MARIAMMA XAVIER,AGED 78 YEARS,
W/O.K.C.XAVIER AND D/O.ULAHANNAN,
KUZHIVELIL HOUSE, PAHZUTHURUTHU KARA,
THIRUVAMPADY P.O., NJEEZHOOR,
KOTTAYAM DISTRICT 686 612.
BY ADVS.SRI.K.SHRIHARI RAO
SMT.N.SHOBHA
RESPONDENT:
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XAVIER MATHAI,AGED 70 YEARS,
S/O.ULAHANNAN MATHAI,
KUZHIVELIL HOUSE,
KULASEKHARAPURAM KARA, AURUNOOTTIMANGALAM P.O.,
KADUTHURUTHY VILLAGE, VAIKOM TALUK,
KOTTAYAM DISTRICT - 686 604.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION
ON 09-09-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
K.V.
OP(C).No. 2190 of 2016 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 COPY OF THE PARTITION DEED NO.2048/1942 OF SRO,
KADUTHURUTHY.
EXHIBIT P2 COPY OF THE WILL NO.18/73 DATED 29/5/73 OF SRO,
KADUTHUTHY.
EXHIBIT P3 COPY OF THE SALE DEED NO.238/90 DATED 27/1/90 OF SRO,
KADUTHURUTHY
EXHIBIT P4 COPY OF THE REQUEST DATED 10/8/2015 OF THE PETITIONER
BEFORE THE DEPUTY TAHSILDAR, VAIKOM.
EXHIBIT P5 COPY OF THE REPRESENTATION DATED 30/11/2015 OF THE
PETITIONER TO THE DEPUTY COLLECTOR (LR), KOTTAYAM.
EXHIBIT P6 COPY OF THE REPRESENATION DATED 7/1/2016 OF THE
PETITIONER BEFORE THE ADDITIONAL TAHSILDAR, VAIKOM.
EXHIBIT P7 COPY OF THE PLAINT IN OS NO.368/15 ON THE FILE OF THE
MUNSIFF'S COURT, VAIKOM.
EXHIBIT P8 COPY OF THE WRITTEN STATEMENT OF THE PETITIONER AS THE
27TH DEFENDANT IN THE OS NO.368/15 ON THE FILE OF THE
MUNSIFF'S COURT, VAIKOM.
EXHIBIT P9 COPY OF THE ORDER DATED 10/6/2016 OF THE ORDER OF
TAHSILDAR, VAIKOM.
RESPONDENT(S)' EXHIBITS NIL
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/TRUE COPY/
P.A.TO JUDGE
K.V.
K.RAMAKRISHNAN, J.
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O.P.(C) No.2190 of 2016
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Dated this the 9th day of September, 2016
JUDGMENT
This petition is filed by the petitioner seeking disposal of O.S.368/2015 pending before the Munsiff Court, Vaikom at the earliest possible time under Article 227 of the Constitution of India.
2. It is alleged in the petition that the petitioner is the 27th defendant in O.S.368/2015 pending before the Munisff Court, Vaikom. The suit was filed by the respondent herein for partition of the plaint schedule property. Though written statement has been filed, court is not disposing the case. So the petitioner has no other remedy, except to approach this court, seeking the following reliefs:
i. To direct the Munisff's Court, Vaikom to dispose of OS No.368/15 (Ext.P7) at the earliest by fixing a time limit on the basis of the maintainability of the suit.
ii. Pass such other orders deemed fit in the facts and circumstances of the case.
iii. Grant the petitioner the costs of the Original Petition (Civil).
3. Considering the nature of relief claimed, this court felt that a report can be called for regarding the present stage and time required for disposal from the concerned court. Accordingly a report has been called for and the Munsiff has sent a report, which reads as follows:
"I may be permitted to report that O.S.368/2015 is a suit for O.P.(C) No.2190 of 2016 2 partition.
OS 368/2015 was filed on 23.12.2015. In this suit, summons could not be served to defendants 5, 6, 7, 9, 10, 11, 12, 13, 20, 22 and 23. Therefore, court has ordered service of summons by paper publication to them. The case is now posted to 20.10.2016 for paper publication and return of summons thus.
Among the defendants who appeared, only the 27th defendant filed written statement. Going by the written statement of the 27th defendant, she states that the property is not partible and that she has exclusive title over it by virtue of a registered Will No.18/1973 od SRO, Kaduthuruty. It is also alleged that some mistakes crept in revenue records after resurvey and that she has filed a petition before Tahsildar, Vaikom for rectification. Going by the pleadings, in the past the plaint schedule property lied in the joint ownership of Ulahannan Mathai and Ulahannan Ulahannan. Plaintiff is the son of Ulahannan Mathai and 27th defendant is the daughter of Ulahannan Ulahannan. It is alleged that after the resurvey the name of Ulahannan Mathai also got entered into the revenue records and the plaintiff is trying to capitalize on this mistake.
From the pleadings, I understand that the case is strongly contested and involves serious issues which require evidence for decision. If minimum time is given for filing written statement, for Section 89 of CPC stages, pretrial steps and for evidence, it must take at least nine months to decide the case."
4. Heard Sri.Shrihari Rao, counsel appearing for the petitioner and perused the report.
5. It is seen from the report that the case is posted for filing written statement and it is stated after complying with the formalities under section 89 of the Code of Civil Procedure, nine months time was O.P.(C) No.2190 of 2016 3 required for disposal of the case. Though the case is of the year 2015, considering the fact that the petitioner as well as the respondent are senior citizens, some priority will have been given for disposal of the case. So this court feels that the petition can be disposed of accepting the report of the Munisff, Vaikom. So the petition is disposed of as follows:
The Munsiff Vaikom is directed to expedite disposal of O.S.368/2015 pending before that court as expeditiously as possible at any rate within nine months from the date of receipt of this judgment. Registry is directed to communicate this judgment to the court below at the earliest.
With the above direction and observation, the petition is disposed of.
Sd/-
(K. Ramakrishnan, Judge) //True Copy// P.A. to Judge ss