Kerala High Court
Raman Nadar Parameswaran Nadar vs Thampi Viswanathan on 9 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
RSA NO. 36 OF 2005
[AGAINST THE JUDGMENT/DECREE DTD.26.03.2004 IN AS NO. 190/1997 OF
SUB COURT, NEYYATTINKARA, THIRUVANANTHAPURAM
FINAL DECREE DTD.31.03.1997 IN I.A.NO.1636/96 IN OS 367/1980 OF
PRINCIPAL MUNSIFF COURT,NEYYATTINKARA, THIRUVANANTHAPURAM]
APPELLANT/APPELLANT/18TH DEFENDANT:
RAMAN NADAR PARAMESWARAN NADAR
PERUMARATHANKUZHI PURAYIDOM,, PARASUVAIKKAL
DESOM, PARASSALA PAKUTHY.
BY ADVS.
SRI.BLAZE K.JOSE
SMT.E.J.BABYKUTTY
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 THAMPI VISWANATHAN,
RESIDING AT PERUMARATHANKUZHI PURAYIDOM,
PARASUVAIKAL DESOM, PARASSALA PAKUTHY.
2 THAMPI DIVAKARAN,
OF .DO. .DO.
3 THAMPI CHITHAMBARAN,
OF .DO. .DO.
4 THAMPI SETHUKUMAR,
OF .DO. .DO.
5 SARASAMMA REGHUPATHY,
OF .DO. .DO.
6 THAMPI KRISHNAN KUTTY,
OF .DO. .DO.
7 THAMPI JAYACHANDRAN,
OF .DO. .DO.
*8 YOVAN NADAR JOHN NADAR,
PERUMARATHANKUZHI, KAMALAVILASOM BUNGLOW,
PARASUVAIKKAL DESOM, PARASSALA PAKUTHY.
(DELETED)
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..2..
*9 VASU SREEDHARAN,
RESIDING AT MANNARAVILA VEEDU, ARAYOOR DESOM,
CHENKAL PAKUTHY. (DELETED)
*10 YOHANNAN SUSEELAN,
PERUMARATHANKUZHI PURAYIDOM, PARASUVAIKKAL
DESOM, PARASSALA PAKUTHY. (DELETED)
*11 KOCHU PILLA NADAR,
SADASIVAN NADAR OF .DO. .DO. (DELETED)
*12 SANTHAN ASARI,
OF .DO. .DO. (DELETED)
*13 KOCHUPILLA ARJUNAN NADAR,
OF .DO. .DO. (DELETED)
*14 ADICHAN NADAR VELAYUDHAN NADAR,
OF .DO. .DO. (DELETED)
*15 PARVATHI NADATHI CHELLAMMA NADATHI,
OF .DO. .DO. (DELETED)
*16 KESAVAN NADAR THAMPASIMONI NADAR,
KEEZNETHOTTAM PUTHEN VEEDU FROM
PERUMARATHANKUZHI, PURAYIDOM OF .DO. .DO.
(DELETED)
*17 KESAVAN NADAR RAMASWAMI NADAR,
PERUMARATHANKUZHI, PURAYIDOM OF .DO. .DO.
(DELETED)
*18 CHERIYAN NADAR RAMAN NADAR,
PERUMARATHANKUZHI, PURAYIDOM OF .DO. .DO.
(DELETED)
*19 PARAMU NADAR PONNAYYAN NADAR, (DELETED)
RESIDING AT KAMLAMBILA PURAYIDOM FROM
PERUMARATHANKUZHI, PURAYIDOM OF .DO. .DO.
(DIED) LRS.ARE IMPLEADED AS ADDL.R51.
*20 NESAN BABU,
RESIDING AT MARUTHARATHALA VEEDU, FROM
PERUMARATHANKUZHI, PURAYIDOM OF .DO. .DO.
(DELETED)
*21 KESAVAN NADAR THAPASIMUTHU NADAR,
MADATHUVILAKATHU MELE PUTHEN VEEDU, OF .DO.
.DO.(DELETED)
*22 KOCHAN NADAR NESAYYAN NADAR,
AZHIVATHOTTAM PURAYIDOM, ARAYOOR DESOM, CHENKAL
PAKUTHY.(DELETED)
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*23 N.BHASKARAN NAIR,
THIRUVANANTHAPURAM-5, N.B.SANAL VIHAR,
PEROORKADA, THIRUVANANTHAPURAM.(DELETED)
*24 AMMUKUTTI AMMA MADHAVI AMMA,
WIFE OF 23RD DEFENDANT OF .DO. .DO.(DELETED)
*25 THANKOM,
PULININNAVILA VEEDU, AAPPIYODU THENGAATTANAM
FROM PERUMARATHANKUZHI PURAYIDOM, PARASUVAIKKAL
DESOM, PARASSALA PAKUTHY.(DIED)(DELETED)
*26 KESAVAN NADAR GOPALAN NADAR,
KUNJUVILA MATHARAKKAL VEEDU, FROM
PERUMARATHANKUZHI PURAYIDOM, PARASUVAIKKAL
DESOM.(DELETED)
*27 JANAKI THAMARAKSHY,
SAROJAVILASOM BUNGLOW, IDICHAKKAPLAMOODU.
(DELETED)
*28 MADAVA PANICKER SURESH,
OF .DO. .DO.(DELETED)
*29 THAPASIMONI NADAR VIJAYAN,
VARUTHATTU PUTHUVAL PUTHEN VEEDU, PARASUVAIKKAL
DESOM, PARASSALA PAKUTHY,.(DELETED)
*30 THAPASIMONI NADAR VINODKUMAR,
OF .DO. .DO.(DELETED)
*31 AMMALU PANKAJAKSHY,
W/O.VARGHEESE, THOTTUVILA VEEDU, KANNYAKUMARI
DISTRICT.(DELETED)
*32 SAROJINI,
W/O.8TH DEFENDANT, PERUMARATHANKUZHI PURAYIDOM,
PARASUVAIKKAL DESOM, PARASALA PAKUTHY.(DELETED)
*33 PUSHPALETHA,
WIFE OF 5TH DEFENDANT, PERUMARATHANKUZHI
PURAYIDOM OF .DO. .DO.(DELETED)
*34 PONNAMMA PILLA MADHAVI PILLA,
MOODUVILAKATHU VEEDU OF .DO. .DO.(DELETED)
*35 A.VILASINI AMMA,
RESIDING AT ROOM NO.62, POLICE QUARTERS,
THIRUVANANTHAPURAM.(DIED).(DELETED)
*36 A.INDIRA DEVI,
KAMALA BHAVAN, POOVAR DESOM,(DELETED)
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*37 ADICHAN NADAR THANKAYYAN NADAR,
PERUMARATHANKUZHI PURAYIDOM, PARASUVAIKKAL
DESOM, PARASSALA PAKUTHY.(DIED)(DELETED)
*38 AMMALU NADATHI JANU,
OF .DO. .DO.(DELETED)
*39 AMMALU NADATHI KAMALAN,
OF .DO. .DO.(DELETED)
*40 AMMALU NADATHI SULOCHANA,
OF .DO. .DO.(DELETED)
*41 RAJAYYAN NADAR JUSTUA,
PERUMARATHANKUZHI VEEDU OF .DO. .DO.(DELETED)
*42 RAJAYYAN NADAR DEVARAJ,
OF .DO. .DO.(DELETED)
*43 CHELLAMMA NADATHI SANTHI,
OF .DO. .DO.(DELETED)
*44 RAJAYYAN NADAR SHIBU,
X(DELETED)
*45 NARAYANI NADATHI SARASWATHY,
X(DELETED)
*46 THANKAYYAN JAYAN,
INCHIVILA NADUTHOTTU VEEDU OF .DO. .DO.
(DELETED)
*47 NARAYANI NADATHI SUMATHI,
RESIDING AT KOLLAVILA VEEDU, T.C.1419 THALIYAL,
KARAMANA, THIRUVANANTHAPURAM.(DELETED)
*48 NARAYANI NADATHI LEELA,
OF .DO. .DO.(DELETED)
*49 NARAYANI NADATHI SANTHA,
PERUMARATHANKUZHI VEEDU, PARASUVAIKKAL DESOM,
PARASSALA PAKUTHY.(DELETED)
*50 SANTHA PREMA,
OF .DO. .DO.(DELETED)
(x)51 ADDL.R51.C.REMA,
D/O.LATE PONNAYYAN NADAR, RESIDING AT JOY
BHAVAN, KUMPHAM VILLA, ARAYOOR P.O., AMARAVILA,
TRIVANDRUM DISTRICT-695 122.(DELETED)
(x)(LR'S OF DECEASED 19TH RESPONDENT IMPLEADED
AS ADDL.RESPONDENT NO.51 AS PER THE ORDER DATED
29.10.2014 IN IA.2044/2014.)
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BY ADVS.
SRI.S.DILEEP
SRI.R.GOPAN
SRI.RAJESH P.NAIR
* RESPONDENTS 8 TO 51 ARE DELETED FROM THE PARTY ARRAY
AT THE RISK OF THE APPELLANT AS PER ORDER DTD.01.10.2021
IN MEMO dtd.20.09.2021.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 02.11.2021, THE COURT ON 09.11.2021
DELIVERED THE FOLLOWING:-
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JUDGMENT
The appellant is the 18th defendant in
O.S.No.367/1980 for partition wherein the Principal Munsiff's
Court, Neyyattinkara (for short 'the trial court') passed a final
decree in I.A.No.1636/1986 as early as on 31.3.1997. The
appellant carried the matter in appeal as A.S.No.190/1997
before the Sub Court, Neyyattinkara (for short 'the first
appellate court') challenging the final decree. The appeal was
dismissed confirming the judgment and decree of the trial
court on 26.3.2004. The respondents are the plaintiffs 3 to 9,
defendants 2 to 6,8,10,12,14,16,17 and 19 to 50 in this
appeal.
2. When this appeal came up for consideration on
23.5.2005, this Court issued notice and granted interim stay
for a period of one month. However, service was not complete
for all the respondents. Some of the respondents passed
away during the pendency of the proceedings. The appellant
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failed to take steps and complete the process within a
reasonable time. Finally, the learned counsel for the appellant
on 1.10.2021 submitted before this Court that the dispute is
between the appellant/18th defendant and respondents 1 to 7,
who are the plaintiffs in the suit. In view of the above
circumstances, this Court recorded the memo dated 20.9.2021
filed by the learned counsel for the appellant that all other
respondents are defendants and their legal heirs, who are only
formal parties in this appeal and no relief is sought against
them. In accordance with the memo submitted, all other
respondents were deleted from the party array at the risk of
the appellant, 18th defendant. The memo was recorded
accordingly. In a partition suit, all the parties are practically
plaintiffs in the suit. However, the appellant/18 th defendant
took the risk in prosecuting this appeal without the junction of
the other respondents in the party array, who were deleted.
3. During the pendency of this appeal, I.A.No.2263/2005
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was filed by the appellant directing the executing court to
restore the delivery, which has been effected on 26.5.2005 in
execution of the decree in O.S.No. 367/1980, violating the
interim order of this Court. It is practically admitted in
I.A.No.87/2005 that the delivery had been effected on
26.5.2005. According to the appellant, the delivery had been
effected after the interim stay was granted by this Court. This
Court called for the report of the executing court. Accordingly,
the then learned Munsiff (currently serving as one of the
Honourable Judges of this Court) filed a report on 28.6.2005
stating that the stay order dated 23.5.2005 in I.A.No. 87/2005
in R.S.A. No.36/2005 was not communicated to the executing
court from the High Court. It is further stated therein that the
learned counsel for the judgment debtor No.18/the appellant
produced a photocopy of the said order before the executing
court on 8.6.2005. Thus, the delivery was effected on
26.5.2005 and the delivery report, regarding the same, was
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submitted by the Amin on 27.5.2005. The report submitted by
the then learned Munsiff would inter alia show that the
property was delivered on 27.5.2005, which fact was not
communicated to the executing court in time.
4. The respondents 1,14 and 16 to 19 filed a joint
statement to the effect that they have no objection in allotting
share wherein the buildings constructed by the plaintiffs are
situated. They also stated that there is no provision in the
preliminary decree for putting up of the boundaries and also
for removing the buildings therein and that the plaintiffs are not
entitled to get the preferences they claimed in the petition and
also for the final decree in terms of their objection. The 5 th
defendant also filed objection through the court guardian
raising objections similar to those raised by the other
defendants.
5. The commission was appointed to effect division of
the property in accordance with the terms of the preliminary
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decree. The operative portion of the preliminary decree reads
as hereunder:-
"In the result, a preliminary decree for partition
is passed declaring the plaintiffs' 1/4 th right over the
plaint schedule property, ie., Sy.No.463/2-b which is
having an extent of 6 acres and 05 cents. The
plaintiffs are entitled to apply for the passing of final
decree after six months. No costs."
6. The Commissioner filed Exts.C5 report and C5(a)
plan. A second report and plan were marked as Exts.C6 and
C6(a). A third report and plan marked as Exts.C7 and C7(a)
were submitted, which were accepted by the court, stating that
no objection was filed by the defendants and accordingly, a
final decree was passed whereby the plaintiff was allotted a
total extent of 1 acre 51.250 cents and he was allowed to
recover owelty to an extent of Rs.18435.31.
7. As per the preliminary decree for partition passed on
30.9.85, the predecessor-in-interest of the plaintiff was allotted
with 1/4th share in the property in Sy.No.463/2-B alone.
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8. Heard the learned counsel for the appellant and the
learned counsel for the respondents. Perused the trial court
records.
9. Learned counsel for the appellant contended that the
total extent of property in Sy.No.463/2-A is 1 acre and 35
cents and in Sy.No.463/2-B is 6 acres and 5 cents, which is
lying contiguously. The learned counsel further contended
that there is no shortage of any extent of property and the
appellant/18th defendant is entitled to 24 cents in Sy.No.463/2-
B as per Ext.B4. The learned counsel further contended that
there are well defined boundaries around the property and he
has been in possession and enjoyment of the same. It is his
contention that the trial court erred in allotting plots to the
plaintiff including a portion occupied by the appellant against
the direction of the preliminary decree. Thus, it is argued that
the trial court erred in accepting Exts.C7 report and C7(a)
plan, which were not prepared after measuring the property
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according to survey plan.
10. Per contra, the learned counsel for the respondents
submitted that the plot allotted as per Ext.C7(a) plan, has
been delivered over in execution of the decree and the appeal
has become infructuous. It is further submitted that the final
decree was passed in accordance with the preliminary decree.
According to the learned counsel for the contesting
respondents, the Commission report and plan were remitted
twice to the Commissioner and obtained supplementary report
and plan. The supplementary report and plan marked as
Exts.C7 and C7(a) were accepted by the court and a final
decree was passed accordingly. Although a first appeal was
taken against the final decree, it was dismissed. Learned
counsel for the contesting respondents submits that the
appellant has been prosecuting the case just to harass the
respondents without the junction of all the parties to the final
decree proceedings knowing fully well that such a course is
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legally prohibited. In short, the learned counsel for the
contesting respondents contended that the appellant could not
complete the service despite the lapse of 16 years after the
institution of the second appeal.
11. It is a fact that this second appeal was not admitted
after formulating substantial questions of law. Notice was
issued on the application for stay filed by the appellant. Along
with the notice, an order staying the execution proceedings
was also obtained. However, the report of the then learned
Munsiff would disclose that the delivery was effected pursuant
to the execution proceedings and the property was delivered
over to the parties concerned in accordance with the terms of
the final decree. In view of the report of the learned Munsiff, it
can be concluded that the subject matter has been delivered
over in execution of the decree and the contention that the
executing court violated the order of stay issued by this Court
is without any basis.
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12. As per the order of the trial court, an Advocate
Commissioner was appointed to effect division of the property
in accordance with the terms of the preliminary decree. The
Commissioner initially filed Ext.C5 report and Ext.C5(a) plan
before the court. After granting an opportunity to the parties to
file objections, the report and plan were remitted to comply
with the terms of the preliminary decree. Accordingly, the
Commissioner filed a second report and plan which were
marked as Exts.C6 and C6(a) respectively. The court which
passed the final decree again considered the objection filed by
the parties to Exts.C6 and C6(a) and remitted the report and
plan to comply with the terms of the preliminary decree.
Thereafter, Exts.C7 and C7(a) were filed by the
Commissioner. On evaluation of the entire commission
reports and plans, the court, which passed the final decree,
accepted the commission report as stated in paragraph 6 of
the final judgment as under:-
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"Heard, the Learned Counsel appearing for the
parties. As per the preliminary decree, the plaintiff alone
was allotted with 1/4 share in property in survey
No.463/2B which is having 6 acres 5 cents in extent. In
Exhibit C7(a) plan the commissioner has plotted the said
property as 'D G H I J K L M N O P Q R S T U V W X Y E'
which is having 6 acres 5 cents in extent. The
Commissioner divided the property in accordance with
the preliminary decree and the 1/4 th share due to the
plaintiff is tentatively showed as plots 'G H A2 A3 A4 A5
A6 A7 B1 B4 B3 A1' and 'A1 B3 B2 B1 A7 W X Y Z' in
Exhibit C7 (a) plan. The said plots together will have an
extent of 1 acre 51.250 cents. The commissioner also
showed the unalloted portion of the property which are
plots D G Y E having an extent of 1 acre 13.120 cents,
'B1 B2 B3 B4' having an extent of 16.564 cents and plot
'H I J K L M N O P Q R S T U V W A7 A6 A5 A4 A3 A2'
having an extent of 3 acres 24.066 cents. The total
extent of these plots will come to 4 acres 53.750 cents.
The Commissioner also plotted the buildings in the entire
B schedule property which are numbered as 1 to 20. The
occupants of the buildings are stated in Exhibit C7
supplementary report. In para 5 of the supplementary
report, Exhibit C7, the Commissioner has stated that the
building belonged to the 18th defendant is seen in plot 'B1
B2 B3 B4', The Commissioner has provided a pathway
from the common pathway from the point 'Z' towards to
the said plot. The said pathway is having a width of 3
links and length of 140 links. The Commissioner has
located the position of the pathway in his report (Exhibit
C7) at para 5. The Commissioner also stated in the said
para, the area of the said pathway which is 420 square
links. The said pathway is provided through the property
allotted to the plaintiff. The Commissioner also produced
with Exhibit C7 report, a consent from the plaintiff
whereby the plaintiffs assigned their consent to provide a
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pathway as such through their plot. The said consent is
marked as Exhibit C7 (b). The Commissioner has valued
the property and stated the valuation in Exhibit C5
Commission report. As per the valuation, the entire plaint
'B' schedule property will cost of Rs.1,20,581.25 ps. The
1/4 share due to the plaintiff as allotted by the
Commissioner will costs of Rs.11710.50 ps. But the
plaintiff is entitled for 1/4 share which will come to
Rs.30,145.31 ps. Hence, the Commissioner estimated
the owelty amount due to the plaintiff as Rs.18,435.31 ps.
to be paid out of the unallotted shares. The contesting
parties have not filed any objection to the valuation done
by the Commissioner. Exhibit C5 report and Exhibits C6
and C7 supplementary reports with plans will form the
commission report. They together will show that the
Commissioner has complied with the provisions in the
preliminary decree. I find nothing to disregard them.
Therefore, the said commission reports and plans are
hereby accepted. Hence, the plaintiff is allotted with "G
H A2 A3 A4 A5 A6 A7 B1 B4 B3 A1" and plot "A1 B3 B2
B1 A7 W X Y Z" in Exhibit C7(a) plan. As per the
statement appended to Exhibit C5 report the plaintiffs are
entitled for the owelty amount of Rs.18,435.31 ps.,
rounded as Rs.18,435/-. I find the plaintiffs are entitled
for a final decree as above."
13. The first appellate court scrutinized the finding
of the trial court and considered threadbare the objections to
the commission report and plan. According to the first
appellate court, the commissioner has estimated the value of
the property correctly and the owelty amount is estimated as
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Rs.18435.31. The first appellate court is of the view that all
the objections raised to the report were considered by the trial
court and the commission report and the plan were remitted
twice to the very same commissioner based upon well-
founded reasons.
14. Sub-section(1) of section 100 of the Code of
Civil Procedure contemplates that an appeal shall lie to the
High Court if it is satisfied that the case involves the
substantial question of law. The substantial question of law is
required to be precisely stated in the memorandum of appeal.
What is stated by the appellant is that the commissioner failed
in measuring the property in accordance with the preliminary
decree and the commissioner has gone wrong in allocating a
portion of the property owned and possessed by the appellant
to the contesting respondent illegally. The appellant seeks to
measure out the properties afresh and locate his property,
which he believes that he has been in possession of the
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same. Concurrent findings against the appellant are sought to
be assailed in this appeal. When there is a clear-cut finding
that the property has been measured out rightly and the final
decree court has made every attempt to implement the
provisions of preliminary decree by taking out a commission
and surveyor, the very same question of fact is not a
substantial question of law involved. As no substantial
question of law arises, it is not necessary for this Court to
frame any substantial question of law in this appeal in a case
where the appellant is not able to complete the service against
the respondents, who were parties to the trial court. The
validity of commission report and plan has been decided by
the trial court and the first appellate court in the correct legal
perspective while considering the final decree application and
the first appeal filed by the appellant. Hence,no interference
is called for.
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This Second Appeal is dismissed. There shall be
no order as to costs. Pending applications, if any, shall stand
closed.
Sd/-
(N.ANIL KUMAR)
JUDGE
MBS/
