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OP (C)No.2416 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
OP(C) NO. 2416 OF 2021
AGAINST THE ORDER/JUDGMENT IN EP 41/2011 IN OS 184/1980 OF MUNSIFF
COURT,KAYAMKULAM
PETITIONER/S:
1 KARUNAKARAN,AGED 76 YEARS
S/O.LATE KOCHAYYAPPAN,
RESIDING AT OODATHIL KIZHAKKATHIL,
PERINGALA.P.O, KAYAMKULAM, ALAPPUZHA DISTRICT-689505.
2 SUMATHI,AGED 74 YEARS
W/O.KARUNAKARAN, RESIDING AT OODATHIL KIZHAKKATHIL,
PERINGALA.P.O, KAYAMKULAM, ALAPPUZHA DISTRICT,PIN-
689505.
BY ADV R.RAJASEKHARAN PILLAI
RESPONDENT/S:
1 SARASWATHY AMMA
RESIDING AT OODATHIL HOUSE(KRISHNA VIHAR),
PERINGALA.P.O,KAYAMKULAM, ALAPPUZHA DISTRICT,PIN-
689505.
2 LETHA.S,
RESIDING AT OODATHIL HOUSE(KRISHNA VIHAR),
PERINGALA.P.O,
KAYAMKULAM, ALAPPUZHA DISTRICT,PIN-689505.
3 USHA.S,
RESIDING AT OODATHIL HOUSE(KRISHNA VIHAR),
PERINGALA.P.O,
KAYAMKULAM , ALAPPUZHA DISTRICT,PIN-689505.
BY ADVS.
R.RAMADAS
T.SIVADASAN(K/25/2011)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION
ON 14.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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OP (C)No.2416 of 2021
C.S DIAS,J.
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OP (C)No.2416 of 2021
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Dated this the 14th day of June, 2022.
JUDGMENT
The original petition is filed to quash EP No.41/2011 in OS No.184/1980 of the Court of the Munsiff, Kayamkulam and to declare that in the light of Ext P1 judgment passed by this Court in SA No.890/1997 and Ext P3 issued by the District Collector, the decree in the suit cannot be executed.
2. The petitioners' case, in brief, in the memorandum of the original petition is as follows:
(i) The predecessors in interest of the respondents had filed OS No.184/1980 against the petitioners, seeking a decree for declaration of title and recovery of possession of the plaint schedule properties. The Trial Court by the judgment and decree dated 30.9.1992 decreed the suit, holding that 3 OP (C)No.2416 of 2021 the respondents' predecessors in interest have the right and title over item No.1 property and possessory right over item No.3 property as described in the schedule appended to the plaint.
The petitioners were directed to put respondents' predecessors in possession of 12.575 cents of land identified as plot DHIJCK in Ext C2(a) plan.
(ii) The judgment and decree in the suit was confirmed by the Court of the Additional District Judge, Mavelikkara in AS No.11/1993. The above concurrent judgments and decrees of the courts below were challenged by the petitioners before this Court in SA No.890/1997. This Court by Ext P1 judgment confirmed the above judgments and decrees, but observed that in case the petitioners apply for the assignment of item No.3 property, the same shall be considered by the statutory authority in accordance with law, and Ext P1 will not stand in the 4 OP (C)No.2416 of 2021 way of statutory authority taking a decision in the matter.
(iii) Despite the observations made in Ext P1, the respondents sought for execution of the decree. The petitioners had filed WP(C) 5508/2014 before this Court, to direct the second respondent in writ petition to consider the petitioners' application for assignment. The Revenue Divisional Officer, Chengannur, contended that as the property in question fell within the Municipal limits of Kayamkulam, under the Rules for Assignment of Land within the Municipal and Corporation Areas, only the District Collector had the jurisdiction to decide the application for assignment. Thereafter, the respondents had filed WP(C)19724/2019, to direct the District Collector to take a decision on the application for assignment. The District Collector, after hearing 5 OP (C)No.2416 of 2021 both sides, has by Ext P3 order taken a decision to process the application for assignment.
(iv) The respondents assailed Ext P3 order by filing WP(C)No.8181/2020 before this Court. This Court by Ext P4 judgment relegated the respondents to work out their remedies, as contemplated under the relevant statute, before the Land Revenue Commissioner.
(v) The petitioners are landless scheduled caste labourers having an income of less than Rs.20,000/- per year. They are entitled for assignment under the Kerala Land Assignment Rules, 1964. In the mean time, if the respondents proceed with the execution of decree, the petitioners would be dispossessed from the land over which they have a right of assignment. The respondents are bound by the stipulation in Ext P1 judgment. In the light of Ext P3, there is no 6 OP (C)No.2416 of 2021 executable decree. Hence all further proceedings in EP 41/2011 may be quashed.
3. The second respondent has filed a counter affidavit refuting the allegations in the original petition. The second respondent has, inter-alia, contended that the petitioners' prayer to quash EP 41/2011 is unsustainable in law. The decree is passed by a competent civil court, which has been concurrently confirmed by the Appellate Court and this Court. Hence the original petition is only to be dismissed.
4. Heard: Sri.P.B Krishnan, the learned Amicus Curiae, Sri.Rajasekharan Pillai, the learned counsel appearing for the petitioners and Sri.T.Sivadasan, the learned counsel appearing for the respondents.
5. The point that arises for consideration in this original petition is whether EP 41/2011 can be quashed in the light of Ext P3 order passed by the District Collector.
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6. The competent civil court, namely the Court of the Munsiff, Kayamkulam, has by the judgment and decree dated 30.9.1992 held that the respondents have the right and title over item No.1 property and possessory right over item No.3 property as described in the schedule appended to the plaint. The petitioners were directed to put the respondents in possession of 12.575 cents of land identified as plot DHIJCK in Ext C2(a) plan. The judgment and decree of the Trial Court has been concurrently confirmed by the Appellate Court and this Court in AS No.11/1993 and Ext P1.
7. The petitioner's contention now is that, subsequent to Ext P1 judgment, the District Collector has by Ext P3 order decided to consider the petitioner's application for assignment of the item No.3 property.
8. It is admitted that Ext P3 order has been challenged by the respondents before the Appellate Authority and the same is pending consideration. 8 OP (C)No.2416 of 2021
9. It may be true, if the Government ultimately assigns item No.3 property in favour of the petitioners, pursuant to Ext P3, the petitioners would get ownership of the said property. But, that does not mean that the decree has become unenforceable due to Ext P3, that too without an order staying the operation of the decree. If the petitioners ultimately succeed in their endeavour to get the property assigned in their favour, certainly such assignment by the Government, would override the decree, as reserved in Ext P1, and the petitioners can be put in possession of the property through an order of restitution. Therefore, I am of the definite view that the relief sought in the original petition is unsustainable in law. As rightly pointed out by the learned Amicus Curiae, the original petition is an over ambitious and overzealous attempt. I do not find any ground to exercise the supervisory jurisdiction of this Court under Article 227 of the Constitution of India and interdict the execution 9 OP (C)No.2416 of 2021 proceeding. The original petition is groundless and is hence dismissed. This Court places on record its appreciation for the valuable assistance rendered by the learned Amicus Curiae.
sd/-
sks/14.06.2022 C.S.DIAS, JUDGE
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OP (C)No.2416 of 2021
APPENDIX OF OP(C) 2416/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 8.3.2011
IN SA NO.890/1997 OF THIS HON'BLE COURT Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 19.7.2019 IN W.P.(C)NO.19724/2019 OF THIS HON'BLE COURT Exhibit P3 TRUE COPY OF THE ORDER DATED 25.2.2020 OF THE DISTRICT COLLECTOR, ALAPPUZHA Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 9.8.2021 IN WP(C)NO.8181/2020 OF THIS HON'BLE COURT.
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