Kerala High Court
Ponnamma vs State Of Kerala
Author: Ashok Menon
Bench: K.Vinod Chandran, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 31ST DAY OF MAY 2018 / 10TH JYAISHTA, 1940
WP(C).No. 6691 of 2018(J)
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PETITIONER(S):
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PONNAMMA
AGED 55, W/O. THIRUMENI, MUTTATHAKUDIYIL,
KURICHILAKODE KARA, KODANAD VILLAGE,
KUNNATHUNADU TALUK, RESIDING AT THATTEMKURY HOUSE,
AIMURY KARA, KOOVAPPADY VILLAGE.
BY ADVS.SRI.V.RAJENDRAN (PERUMBAVOOR)
SRI.GEORGE VARGHESE KIZHAKKAMBALAM
SRI.N.RAJESH
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY,
DEPARTMENT OF HOME AFFAIRS,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. DEPUTY SUPERINTENDENT OF POLICE
PERUMBAVOOR-683 542.
3. STATION HOUSE OFFICER
KODANAD POLICE STATION,
PERUMBAVOOR-683 544.
4. JAYANANDAN
AGED ABOUT 61, S/O. NARAYANAN, MUTTATHAKUDIYIL,
KURICHILAKODE KARA, KODANAD VILLAGE,
KUNNATHUNADU TALUK, RESIDING AT THATTEMKUDY HOUSE,
AIMURY KARA, KOOVAPPADY VILLAGE, KOOVAPPADY P.O.-683 544.
5. SIVARAJAN
AGED ABOUT 55, S/O. NARAYANAN, MUTTATHAKUDIYIL,
KURICHILAKODE KARA, KODANAD VILLAGE,
KUNNATHUNADU TALUK, RESIDING AT THATTEMKUDY HOUSE,
AIMURY KARA, KOOVAPPADY VILLAGE, KOOVAPPADY P.O.-683544.
WP(C).No. 6691 of 2018 (J)
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2
6. SUKUMARAN
AGED ABOUT 53, S/O. NARAYANAN, MUTTATHAKUDIYIL,
KURICHILAKODE KARA, KODANAD VILLAGE,
KUNNATHUNADU TALUK, RESIDING AT THATTEMKUDY HOUSE,
AIMURY KARA, KOOVAPPADY VILLAGE, KOOVAPPADY P.O.-683544.
7. VIJAYAN
AGED ABOUT 49, S/O. NARAYANAN, MUTTATHAKUDIYIL,
KURICHILAKODE KARA, KODANAD VILLAGE,
KUNNATHUNADU TALUK, RESIDING AT THATTEMKUDY HOUSE,
AIMURY KARA, KOOVAPPADY VILLAGE, KOOVAPPADY P.O.-683544.
R1-R3 BY SR.GOVERNMENT PLEADER SRI.P.P.THAJUDHEEN
R6,R7 BY ADV. SRI.P.THOMAS GEEVERGHESE
R6,R7 BY ADV. SRI.TONY THOMAS (INCHIPARAMBIL)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-05-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 6691 of 2018 (J)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT P1 TRUE COPY OF DELIVERY REPORT IN E.P.43/15 IN OS
210/94 OF MUNSIFF'S COURT, PERUMBAVOOR DATED
17.8.17.
EXHIBIT P2 TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY.
128/1,2 OF BLOCK NO. 6 OF KODANAD VILLAGE.
EXHIBIT P2A TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY.
138/3,4 OF BLOCK NO. 6 OF KODANAD VILLAGE.
EXHIBIT P2B TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY.138/5
OF BLOCK NO. 6 OF KODANAD VILLAGE.
EXHIBIT P2C TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY.131/5
OF BLOCK NO. 6 OF KODANAD VILLAGE.
EXHIBIT P2D TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY.
303/8,5 OF BLOCK NO. 6 OF KODANAD VILLAGE.
EXHIBIT P2E TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY.294/12
OF BLOCK NO. 6 OF KODANAD VILLAGE.
EXHIBIT P3 TRUE COPY OF TAX PAID RECEIPT NO.6076957 DATED
20.9.17 ISSUED FROM KODANAD VILLAGE OFFICE.
EXHIBIT P4 TRUE COPY OF JUDGMENT IN RSA 850/17 DATED 29.1.18
OF THIS COURT.
EXHIBIT P5 TRUE COPY OF PETITION FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT ON 21.2.18.
EXHIBIT P6 TRUE COPY OF RECEIPT DATED 21.2.18 EVIDENCING
RECEIPT OF EXHIBIT P5 BY 2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY
RESPONDENTS 4 TO 6 BEFORE THIS COURT IN
R.S.A.850/17 ON 11.8.17.
RESPONDENT(S)' EXHIBITS:
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EXHIBIT R6(a) TRUE COPY OF JUDGMENT OF MUNSIFF'S COURT,
PERUMBAVOOR IN O.S.365/2005.
EXHIBIT R6(b) TRUE COPY OF MEMORANDUM OF APPEAL IN A.S.
19/17 OF SUB COURT, PERUMBAVOOR.
EXHIBIT R6(c) TRUE COPY OF OBSTRUCTION PETITION FILED UNDER
ORDER 21, RULE 97 CPC AS E.A.153/2017 IN E.P.
43/2017 OF MUNSIFF'S COURT, PERUMBAVOOR.
/TRUE COPY/
PA TO JUDGE
dkr
K.VINOD CHANDRAN & ASHOK MENON, JJ.
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W.P.(C) No. 6691 of 2018
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Dated this the 31st day of May, 2018
JUDGMENT
Ashok Menon, J.
The petitioner and respondents 4 to 7 are siblings and the children of late Narayanan. The petitioner and her brothers started litigating for their father's property way back in 1994, when she was constrained to file O.S.No.210/1994 against her brothers for partition and separate share. The brothers raised a contention that the suit was bad for non-joinder of their half-sister Mallika, who is also entitled to a share in the property. Consequently, she too was impleaded and the suit was decreed on 31-01-2000. Application for final decree was filed by the petitioner and on deputation of the Commissioner, the property was divided by metes and bounds. While the proceedings were pending, the petitioner's half-sister Mallika requested that the matter be placed before the Adalath and the Adalath suggested a settlement and the final decree was passed on the basis of the award passed by the Adalath. The party WP(C)6691/2018 2 respondents herein did not co-operate with the discussions which took place before the Adalath for settlement of the dispute. The 4 th respondent herein challenged the final decree proceedings before the Additional District Court, North Paravur by filing A.S.No.213/2005. The appeal was dismissed. R.S.A.No. 1163/2006 was filed and the final decree was set aside on technical ground and direction was given to the lower court to hear the matter afresh and pass the final decree. Accordingly, the final decree was passed on 21-07-2014. That final decree was again challenged by the party respondents 4 to 6 before the Sub Court, Perumbavoor by filing A.S.No.83/2014. In the meanwhile, the final decree was got engrossed by the petitioner herein and she filed E.P.No.43/2015 for getting delivery of the property. A.S.No.83/2014 was dismissed on 31-03-2017. Despite various untenable objections being raised by the party respondents herein, delivery was ordered, brushing aside those contentions. When the Amin went to the property for effecting delivery, the party respondents herein along with some female members obstructed the same. The executing court had to provide police assistance to the Amin deputed from the court to WP(C)6691/2018 3 deliver the property to the petitioner on 11-08-2017 and a report was filed by the Amin before the execution court on 17-08-2017. That delivery report, which forms the basis for the possession claimed by the petitioner over her property is Ext.P1. The survey plans pertaining to the division of properties are Ext.P2 series. The petitioner also effected mutation and is paying tax for the properties delivered to her. Ext.P3 is copy of the basic tax receipt obtained on 20-09-2017. Dissatisfied, the party respondents challenged the final decree once again by filing R.S.A.No.850/2017. This Court made certain observations regarding the division of property by the Commissioner, mainly pertaining to one item, having an extent of 36.70 ares in R.S.No.303/5. The petitioner was willing to relinquish her claim over an extent of 6.25 ares allotted to her from that item of property and was satisfied with the other five items regarding which there could have been no objection. The R.S.A. was disposed of vide Ext.P4 judgment, confirming the final decree, except regarding item No.5 comprised in R.S.No.303/8-3 and the parties were directed to appear before the trial court for effecting partition of that property between the defendants 1 to 5 in WP(C)6691/2018 4 the suit, ie., respondents 4 to 7 herein and Mallika, their half-sister. Regarding all other properties, which were delivered to the petitioner in the final decree, there was no dispute and the final decree was confirmed. After about two decades of tiring litigation, when the property ultimately came into the possession of the petitioner to enjoy it, the party respondents obstructed her husband and workers from entering the properties and threatened them with dire consequences if they dared to enter the property. Aggrieved by this act of the party respondents, the petitioner filed Ext.P5 complaint before the 2nd respondent. The party respondents were summoned by the police and directed not to cause any obstruction to the petitioner entering her property, but failed to take any stringent action against the erring party respondents for the reason that the dispute is one of purely civil nature. The indolence on the part of the 2nd respondent has encouraged the party respondents further in their illegal activities. The civil dispute between the petitioner and the party respondents have attained finality. Despite that, the petitioner is not able to enjoy the property set apart and delivered to her in the partition. Hence, she has approached this WP(C)6691/2018 5 Court seeking intervention of this Court to issue specific directions to respondents 2 and 3 to afford adequate and sufficient protection to her so as to enable her to enjoy her property.
2. The learned Senior Government Pleader appearing for respondents 1 to 3, on instructions, submits that the party respondents were called to the police station and issued stringent warning.
3. The 6th respondent for himself and on behalf of 7th respondent has filed a detailed counter-affidavit supported by certain documents contending that the petitioner is not entitled to any of the reliefs in this Writ Petition because of non-joinder of necessary parties. It is submitted that all the parties in Ext.P4 judgment ought to have been made parties. It is further stated that one Kamalakshi, who is the maternal grand-daughter of Ayyappan, the paternal grandfather of the petitioner, had filed O.S.No.365/2005 before the Munsiff's Court, Perumbavoor with a prayer to set aside the decree and judgment obtained by the petitioner in her favour in O.S.No.210/1994. That suit was dismissed and copy of the judgment in O.S.No.365/2005 is WP(C)6691/2018 6 produced by the party respondents as Ext.R6(a). It is also stated that an appeal has been preferred challenging Ext.R6(a) and the same is pending as A.S.No.19/2017 before the Sub Court, Perumbavoor. Appeal was filed by respondents 4 to 6 herein as Ext.R6(b) and it is pointed out that there is every possibility of the appeal being allowed. The petitioner should not have been handed- over possession of the property. It is further contended by the party respondents that the property does not actually belong to their father, Narayanan, but to their grand-father Ayyappan and the petitioner had obtained the decree in O.S.No.210/1994 misleading the court that the property belonged to Narayanan alone. The suit is bad for non-joinder of necessary parties, since all the legal heirs of Ayyappan, including Kamalakhi, the plaintiff in O.S.No.365/2005, were not made parties. It is therefore contended by the party respondents that the right of the petitioner obtained as per Ext.P4 judgment and Ext.P1 delivery report will ultimately depend on the final adjudication of O.S.No.365/2005 and the appeal therefrom filed as A.S.No.19/2017. It is also submitted that Kamalakshi has raised an objection in the execution petition as E.A.No.154/2017 in WP(C)6691/2018 7 E.P.No.43/2017 under Order 21, Rule 97 before the execution court obstructing delivery of the properties and copy of that petition is Ext.R6(c). The execution court did not adjudicate that petition. The civil dispute between the petitioner and the party respondents has not attained finality as claimed by the petitioner. The petitioner and her husband want to cut and remove certain valuable trees in the property and commit waste. It was Kamalakshi and her men, who had prevented the petitioner and her workers from cutting down trees in the property and not by the party respondents, and therefore, the Writ Petition is only to be dismissed with direction to resolve the civil dispute before appropriate forum.
4. The petitioner has filed a reply affidavit refuting all the contentions raised in the counter-affidavit. It is stated that the party respondents have never raised any contention of non-joinder of Kamalakshi or any other legal heirs of late Ayyappan to be made parties in the partition suit filed by the petitioner. From the appeal memorandum filed by the party respondents as R.S.No.850/2017 (Ext.P7) the contentions raised by the party respondents would be explicitly clear. Kamalakshi had filed O.S.No.365/2005 at the WP(C)6691/2018 8 instigation of respondents 4 to 7, who were somehow bend upon thwarting the attempt of the petitioner to get the ancestral property divided.
5. History of the dispute between the petitioner and the party respondents, who are her own brothers, indicates towards the cussedness on the part of the brothers and their tenacity and determination to thwart their sister from enjoying the fruits of the hard earned decree. The Supreme Court in Satyawati Vs. Rajinder Singh and another, (2013) 9 SCC 491, while dealing the appeal for execution deprecated the unreasonable delay for the reason that the decree-holder if is unable to enjoy the fruits, the entire effort of successful litigant would be in vain. The Supreme Court has observed thus :-
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