Kerala High Court
Ahammad vs Thayyil Kunhamina on 5 October, 2017
Author: Anil K. Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY, THE 5TH DAY OF OCTOBER 2017/13TH ASWINA, 1939
OP(C).No. 205 of 2017 ()
-------------------------
I.A.734/2016 IN FDIA 472/2015 IN O.S.NO.1/2000 OF SUBORDINATE JUDGE'S
COURT, VATAKARA.
----------------
PETITIONER(S)/PETITIONERS/RESPONDENTS 1 TO 3:-:
-----------------------------------------------------------------------------
1. AHAMMAD,
S/O.PATHU, 60 YEARS, THAYYIL PARAKKUM
CHANDROTH AVIKKAL, VATAKARA AMSOM, DESOM,
VATAKARA THALUK.
2. KATHEESSA,
D/O.PATHU, 53 YEARS, THAYYIL PARAKKUM
CHANDROTH AVIKKAL, VATAKARA AMSOM, DESOM,
VATAKARA THALUK.
3. SAKKARIA,
S/O.PATHU, 50 YEARS, THAYYIL PARAKKUM
CHANDROTH AVIKKAL, VATAKARA AMSOM, DESOM,
VATAKARA THALUK.
BY ADV. SRI.ZUBAIR PULIKKOOL
RESPONDENT(S)/FINAL DECREE PETITIONERS/RESPONDENTS 4 TO 13:-:
-----------------------------------------------------------------------------------------------------------
1. THAYYIL KUNHAMINA,
D/O.KUNHAMMAD, AGED 66 YEARS,
VATAKARA AMSOM, DESOM,
VATAKARA THALUK, KOZHIKODE DISTRICT,
PIN - 673 101.
2. THAYYIL BEEVI,
PULLAMKANDATHIL HOUSE, D/O.KADEESSA,
AGED 59 YEARS, VATAKARA AMSOM, DESOM,
VATAKARA THALUK, PIN - 673 101.
TS
OP(C).No. 205 of 2017 ()
-----------------------------------
3. NITOORVEETTIL BEEVI,
D/O.MAMMU, 56 YEARS, MUKACHERY BAGHAM,
VATAKARA AMSOM, DESOM, VATAKARA THALUK,
PIN - 673 101.
4. NITOORVEETTIL NAFEESSA,
D/O.MAMMU, 56 YEARS, MUKACHERY BAGHAM,
VATAKARA AMSOM, DESOM, VATAKARA THALUK,
PIN - 673 101.
5. NITOORVEETTIL MUSTHAFA,
S/O.MAMMU, 49 YEARS, BUSINESS, P.O.VATAKARA,
VATAKARA AMSOM, DESOM, PIN - 673 101.
6. NITOORVEETTIL HAMEED,
S/O.MAMMU, 48 YEARS, BUSINESS,
P.O.VATAKARA, VATAKARA AMSOM, DESOM,
PIN - 673 101.
7. NITOORVEETTIL MAIMU,
D/O.MAMMU, 44 YEARS, P.O.VATAKARA,
VATAKARA AMSOM, DESOM, VATAKARA THALUK,
PIN - 673 101.
8. NITOORVEETTIL MAJEED,
S/O.MAMMU, 42 YEARS, P.O.VATAKARA,
VATAKARA AMSOM, DESOM, VATAKARA THALUK,
PIN - 673 101.
9. CHOLAMAHAL ENNA VEETTIL THAMASAKKUM SUBAIDA,
D/O.UPPIRI, 44 YEARS, P.O.PUTHUPPANAM,
PUTHUPPANAM, AMSOM, DESOM, VATAKARA THALUK,
PIN - 673 105.
10. CHOLAMAHAL ENNA VEETTIL THAMASAKKUM HARIS,
S/O.UPPIRI, 38 YEARS, P.O.PUTHUPPANAM,
PUTHUPPANAM, AMSOM, DESOM, VATAKARA THALUK,
PIN - 673 105.
11. CHOLAMAHAL ENNA VEETTIL THAMASAKKUM SHAKKEER,
S/O.UPPIRI, 31 YEARS, P.O.PUTHUPPANAM,
PUTHUPPANAM, AMSOM, DESOM, VATAKARA THALUK,
PIN - 673 105.
R1 BY ADVS. SRI.P.K.MOHAMED JAMEEL
SRI.RAFFEEKH.K
R2 BY ADVS. SRI.VINOD RAVINDRANATH
SRI.SAJU.S.A
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-10-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TS
OP(C).No. 205 of 2017 ()
----------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
--------------------------------------
EXHIBIT P1. TRUE COPY OF THE COMMISSION REPORT, PLAN AND OTHER
DETAILS OF THE COMMISSIONER IN FDIA 472/15 IN O.S.1/2000 ON
THE FILE OF SUBORDINATE JUDGE OF VATAKARA.
EXHIBIT P2. AFFIDAVIT IN SUPPORT OF THE PETITION IN IA 734/16 I
FDIA 472/15.
EXHIBIT P3. ORDER IN I.A.734/16 IN FDIA 472/15 ON THE FILE OF
SUBORDINATE JUDGE OF VATAKARA.
RESPONDENT(S)' EXHIBITS - NIL
-------------------------------------------------
/TRUE COPY/
PS TO JUDGE
TS
ANIL K. NARENDRAN, J.
-----------------------------------------------
O.P.(C)No.205 of 2017
-----------------------------------------------
Dated this the 5th day of October, 2017
J U D G M E N T
The petitioners, who are respondents 1 to 3 in FDIA 472 of 2015 in O.S.No.1 of 2000 and the petitioners in I.A.No.734 of 2016 in FDIA 472 of 2015 on the file of Sub Court, Vadakara, are before this Court in this original petition filed under Article 227 of the Constitution of India seeking an order to set aside Ext.P3 order dated 17.11.2016 of the said court in I.A.No.734 of 2016 in FDIA 472 of 2015, whereby the request made by the petitioners to remit Ext.P1 commission report, plan and accounts to the Advocate Commissioner appointed in FDIA 472 of 2015 stands rejected.
2. On 20.1.2017, when this original petition came up for admission, this Court issued notice before admission to respondents. This Court has also granted interim stay of all further proceedings in FDIA 472 of 2015 in O.S.No.1 of 2000 on the file of Sub Court, Vadakara for a period of two weeks, which order was extended from time to time, till 17.7.2017. O.P.(C)No.205 of 2017
:-2-:
3. Heard the learned counsel for the petitioners, the learned counsel for the 1st respondent and also the learned counsel for the 2nd respondent. Despite service of notice, none appeared for respondents 3 to 11.
4. The sole issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P3 order passed by the court below, whereby I.A.No.734 of 2016 filed by the petitioners seeking an order to remit the commission report, plan and accounts to the Advocate Commissioner appointed in FDIA 472 of 2015 was turned down.
5. The suit is one for partition. The preliminary decree passed in that suit has attained finality, in the absence of any challenge made by either side. In terms of the preliminary decree, proceedings were initiated in FDIA 472 of 2015 for passing a final decree. In that final decree proceedings, an Advocate Commissioner was deputed, who submitted Ext.P1 report after conducting inspection on 7.12.2015 and 18.3.2016 respectively. As per the said report, the entitlement of the petitioners is 3.20 cents of land marked as Plot A in Ext.P1 plan and a sum of O.P.(C)No.205 of 2017 :-3-:
Rs.42,925.05 as owelty.
6. The petitioners filed I.A.No.734 of 2016 seeking an order to remit Ext.P1 commission report, plan and accounts. In the said application, the petitioners contended that, they filed work memo before the Advocate Commissioner to allot a plot convenient to construct a house. The plot allotted to the petitioners as per Ext.P1 is narrow, in which construction of house is not possible. The petitioners are entitled for allotment of nearly 5 cents. The petitioners contended further that, the 11th defendant is allotted plot B measuring 7.20 cents, which plot is larger than what she is entitled to. The well in plot B is a common well, which has to be kept common with access to all sharers.
7. As per Ext.P1 commission report, plan and accounts the total extent of plaint schedule property is 21.40 cents with a residential building. As per the said report, the entitlement of the petitioners is 3.20 cents of land marked as Plot A in Ext.P1 plan and they are entitled for a sum of Rs.42,925.05 as owelty. Plot B having an extent of 7.20 cents with residential building is allotted to the 11th defendant and Plot F having an extent of 2 cents is set O.P.(C)No.205 of 2017 :-4-:
apart as way. As per the report, owelty amount is fixed based on the fair value of the plaint schedule property.
8. After considering the rival submissions, the court below found that the petitioners have not taken steps to substantiate their objections. The question whether they could have been allotted with more extent of property, etc. is a question which require evidence. The objections raised in I.A.No.734 of 2016 can be considered only at the time of enquiry in the main petition. On a perusal of Ext.P1 commission report, plan and accounts, the court below did not find anything on the face of it to remit back the same to the Advocate Commissioner. Therefore, by Ext.P3 order, the court below dismissed I.A.No.734 of 2016, after recording the objections of the petitioners, and it was made clear that they are at liberty to adduce evidence with respect to their objections during enquiry in FDIA 472 of 2015, if they so choose. The reasoning of the court below in Ext.P3 order cannot be said to be palpably perverse or patently unreasonable, warranting an interference by this Court. It cannot also be said that the court below has committed manifest error while issuing Ext.P3 order or O.P.(C)No.205 of 2017 :-5-:
that, the reasoning in Ext.P3 is in direct conflict with settled principle of law.
9. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
10. In Sobhana Nair K.N. v. Shaji S.G.Nair (2016(1) KHC 1) a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower O.P.(C)No.205 of 2017 :-6-:
court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law.
11. Viewed in the light of law laid down in the decisions referred to supra, I find absolutely no grounds to interfere with Ext.P3 order passed by the court below.
In the result, this original petition fails and accordingly the same is dismissed.
Sd/-
ANIL K. NARENDRAN JUDGE ami/ //True copy// P.A.to Judge