Kerala High Court
Saramma vs Eldho K. Thomas on 7 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
OP(C) NO. 1833 OF 2020
(OS 139/2016 OF MUNSIFF COURT, MUVATTUPUZHA)
PETITIONER:
NAVEEN B. PARAPPATT,
AGED 32 YEARS, S/O. BINU, PARAPPATTU HOUSE,
PINDIMANA KARA, PINDIMANA VILLAGE,
KOTHAMANGALAM TALUK-686 681.
BY ADVS.
SRI.A.BALAGOPALAN
SRI.A.RAJAGOPALAN
SRI.M.N.MANMADAN
SRI.M.S.IMTHIYAZ AHAMMED
SMT.P.SEENA
RESPONDENTS:
1 ELDHO K. THOMAS, AGED 62 YEARS,
S/O.THOMAS, KAVUNGUMPILLIL HOUSE, PINDIMANA KARA,
PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686 681.
2 VARGHESE, AGED 65 YEARS,
S/O.JOSEPH, KUNNATHU HOUSE, PINDIMANA KARA,
PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686 681.
3 GEORGE, AGED 59 YEARS,
S/O.MATHEW, PARAPPATTU HOUSE, PINDIMANA KARA,
PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686 681.
BY ADV. SRI.ALEXANDER JOSEPH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.04.2022, ALONG
WITH OP(C).1835/2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
OP(C) NO. 1835 OF 2020
(OS 137/2016 OF MUNSIFF COURT, MUVATTUPUZHA)
PETITIONER:
SARAMMA,
AGED 54 YEARS,
W/O. BINU, PARAPPATTU HOUSE, PINDIMANA KARA,
PINDIMANA VILLAGE, KOTHAMANGALAM TALUK - 686681.
BY ADVS.
SRI.A.BALAGOPALAN
SRI.M.N.MANMADAN
SRI.M.S.IMTHIYAZ AHAMMED
SMT.P.SEENA
RESPONDENTS:
1 ELDHO K. THOMAS, AGED 62 YEARS,
S/O.THOMAS, KAVUNGUMPILLIL HOUSE, PINDIMANA KARA,
PINDIMANA VILLAGE, KOTHAMANGALAM TALUK - 686681.
2 VARGHESE, AGED 65 YEARS,
S/O.JOSEPH, KUNNATHU HOUSE, PINDIMANA KARA,
PINDIMANA VILLAGE, KOTHAMANGALAM TALUK - 686681.
3 GEORGE, AGED 59 YEARS,
S/O.MATHEW, PARAPPATTU HOUSE, PINDIMANA KARA,
PINDIMANA VILLAGE, KOTHAMANGALAM TALUK - 686681.
BY ADV.SRI.ALEXANDER JOSEPH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.04.2022, ALONG
WITH OP(C).1833/2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C).Nos.1833 & 1835 OF 2020
COMMON JUDGMENT
The petitioners, who are the defendants
in O.S. Nos.137 and 139 of 2016 on the file
of Munsiff Court, Muvattupuzha, have filed
these Original Petitions under Article 227 of
the Constitution of India.
2. In O.P.(C) No.1833/2020, Ext.P7 order
passed in I.A.No.1228/2019 is under
challenge, whereas in O.P.(C) No.1835/2020,
Ext.P7 order therein passed in I.A.
No.1227/2019 is under challenge.
3. As per the impugned orders, the
learned Munsiff allowed sale of the A, B and
C schedule properties on the finding that
partition of the same is an impossibility.
The said orders were passed acting upon a
Commission Report filed by the Commissioner
to the effect that the properties cannot be
partitioned by metes and bounds.
OP(C).Nos.1833 & 1835 OF 2020
4. It is argued by the learned counsel
for the petitioner/defendant that plaint A
schedule property is having an extent of 1.62
Ares, B schedule comes to 3.30 Ares and C
schedule comes to 2.30 Ares. The learned
counsel pressed for allowing partition of the
entire properties by metes and bounds.
5. However, the learned counsel for the
plaintiffs zealously opposed this contention
contending that, since the entire properties
being covered by buildings, it is not
possible to partition the same in tune with
the preliminary decree, and, therefore, the
learned Munsiff rightly passed orders for
public sale.
6. However, at a later point of time,
the learned counsel for the plaintiffs
submitted that in so far as the B schedule is
concerned, the property can be allotted by
separating the same by granting ¼ share to
OP(C).Nos.1833 & 1835 OF 2020
the defendant. He reiterated that as far as
the other schedules one concerned, it is
difficult to divide the property and the
Commission Report in this regard has been
highlighted to emphasis this point.
7. Going by the Commission Report, the
argument advanced by the learned counsel for
the respondents is having force. However, it
would appear that as far as B schedule
property is concerned, the same is an extent
of 3.30 Ares. In view of the matter, there is
possibility of dividing the same and giving
¼th share in favour of the defendant in this
case.
8. Accordingly, I am inclined to modify
the impugned orders as under:
As far as plaint A and C schedule
properties herein are concerned, the
sale ordered by the learned Munsiff
shall go on in accordance with law.
OP(C).Nos.1833 & 1835 OF 2020
Coming to plaint B schedule
property, the learned Munsiff is
directed to appoint a Survey
Commissioner to get a plan, so that ¼th
share of the defendant can be separated
and given possession, in tune with the
preliminary decree.
Accordingly, this Original Petitions are
disposed of.
Sd/-
A. BADHARUDEEN,
JUDGE
WW
OP(C).Nos.1833 & 1835 OF 2020
APPENDIX OF OP(C) 1833/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PRELIMINARY DECREE IN O.S
NO.139/2016 DATED 13.11.2018.
EXHIBIT P2 TRUE COPY OF THE IA NO.329/2019 IN OS
NO.139/2016 DATED 18.01.2019.
EXHIBIT P3 TRUE COPY OF IA NO.1228/2019 DATED
25.03.2019 FILED BY THE RESPONDENTS IN OS
NO.139/2016.
EXHIBIT P4 TRUE COPY OF IA NO.2251/2019 FILED BY THE
RESPONDENTS IN OS NO.139/2016.
EXHIBIT P5 TRUE COPY OF THE COMMISSIONER REPORT DATED
8.07.2019.
EXHIBIT P6 TRUE COPY OF THE OBJECTION DATED
11.07.2019.
EXHIBIT P7 TRUE COPY OF THE ORDER IN IA NO.1228/2019
IN IA NO.329/2019 IN OS NO.139/2016 DATED
17.07.2019 PASSED BY THE MUNSIFF COURT,
MUVATTUPUZHA.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT PASSED BY THE
HON'BLE COURT IN FAO (RO) NO.18/2020 DATE
18.11.2020.
OP(C).Nos.1833 & 1835 OF 2020
APPENDIX OF OP(C) 1835/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PRELIMINARY DECREE IN O.S.
NO.137/2016 DATED 24.10.2018.
EXHIBIT P2 TRUE COPY OF THE IA NO.330/2019 IN O.S.
NO.137/2016 DATED 18.01.2019.
EXHIBIT P3 TRUE COPY OF IA NO.1227/2019 FILED BY THE
RESPONDENTS IN O.S.NO.137/2016.
EXHIBIT P4 TRUE COPY OF IA NO.2250/2019 FILED BY THE
RESPONDENTS IN O.S.NO.137/2016.
EXHIBIT P5 TRUE COPY OF THE COMMISSIONER REPORT DATED
08.07.2019.
EXHIBIT P6 TRUE COPY OF THE OBJECTION DATED
11.07.2019.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 17.07.2019
PASSED BY THE MUNSIFF'S COURT,
MUVATTUPUZHA.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT PASSED BY THE
HON'BLE COURT IN FAO (RO) NO.14/2020 DATED
18.11.2020.
