A.K.Raveendran vs A.Murali
2022 Latest Caselaw 4802 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
           THE HONOURABLE MR.JUSTICE V.G.ARUN
 FRIDAY, THE 29TH DAY OF APRIL 2022 / 9TH VAISAKHA, 1944
                 OP(C) NO. 1513 OF 2020
 AGAINST THE ORDER/JUDGMENT IN OS 210/1997 OF SUB COURT,
                         KANNUR
PETITIONER/S:

         A.K.RAVEENDRAN
         AGED 74 YEARS
         S/O. RAMUNNI, RAVIPRABHA, P.O. AZHIKODE SOUTH,
         KANNUR-670 009
         BY ADVS.
         V.R.KESAVA KAIMAL
         SMT.C.DEVIKA RANI KAIMAL

RESPONDENT/S:

    1    A.MURALI
         AGED 61 YEARS, S/O. KUNHIKANNAN MASTER, ALAKKAT
         HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR
         DISTRICT-670 594
    2    A. LOHITHAKSHAN,
         AGED 59 YEARS, S/O. KUNHIKANNAN MASTER, ALAKKAT
         HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR
         DISTRICT-670 594
    3    A. UMA,
         AGED 57 YEARS, D/O. KUNHIKANNAN MASTER, ALAKKAT
         HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR
         DISTRICT-670 594
    4    A. ARUNA,
         AGED 53 YEARS
         D/O. KUNHIKANNAN MASTER, ALAKKAT HOUSE,
         VELIYANNUR AMSOM, VARAM DESOM, KANNUR DISTRICT-
         670 594
    5    A.K. SUPRIYA,
         AGED 51 YEARS, D/O.KUNHIKANNAN MASTER, ALAKKAT
         HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR
         DISTRICT-670 594
    6    A. ARYA,
         AGED 49 YEARS, D/O. KUNHIKANNAN MASTER, ALAKKAT
         HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR
         DISTRICT-670594
    7    A. HEMA,
 O.P.(C) No.1513 of 2020

                                 -2-


             AGED 46 YEARS, D/O. KUNHIKANNAN MASTER, ALAKKAT
             HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR
             DISTRICT-670 594
     8       A.K. RATNAVATHY,
             AGED 76 YEARS, D/O. RAMUNNI, RESIDING AT
             THRIKARTHIKA, P.O. THOTTADA, KANNUR-670 594
     9       A.K. PAVITHRAN,
             AGED 72 YEARS, S/O.RAMUNNI, ROJA NIVAS,
             VELIYANNUR AMSOM DESOM, P.O. VARAM, KANNUR-670
             594
    10       A.K. SASINDRAN,
             AGED 70 YEARS, S/O. RAMUNNI,RESIDING AT
             MILAN,VELIYANNUR AMSOM DESOM, P.O. VARAM,
             KANNUR-670 594
    11       A.K. HAREENDRAN,
             AGED 67 YEARS, S/O. RAMUNNI, RESIDING AT
             SANADANAM, VELIYANNUR AMSOM DESOM, P.O. VARAM,
             KANNUR-670 594
    12       A.K. JAYACHANDRAN,
             AGED 64 YEARS, S/O. RAMUNNI, ROJANIVAS,
             VELIYANNUR AMSOM DESOM, P.O.VARAM, KANNUR-670
             594
    13       A.K. ROJA,
             AGED 61 YEARS, D/O. RAMUNNI, ROJA NIVAS,
             VELIYANNUR AMSOM DESOM, P.O. VARAM, KANNUR-670
             594
             BY ADVS.
             SRI.R.SURENDRAN
             SMT.C.S.RAJANI
             KUM.S.MAYUKHA


         THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12.10.2021,
THE COURT ON 29.04.2022, DELIVERED THE FOLLOWING:
 O.P.(C) No.1513 of 2020

                                      -3-



                                JUDGMENT

Dated this the 29th day of April, 2022

The petitioner is the third respondent in

Final Decree Interlocutory Application No.32 of

2012 in O.S.No.210 of 1997 pending before the Sub

Court, Kannur. In the suit for partition, a

preliminary decree was passed on 31.08.1999,

directing division of the plaint B Schedule

Property into two equal shares and allotment of

one share to defendants 4 to 11 and the remaining

share to the 12th defendant. In the preliminary

decree, B Schedule property is described as

follows;

"çÕBÞGáÕÏW É¿ßEÞæùµø ÉùOßW ÎicJßW µßÝæAÏ¢Ö¢

ØíÅÜJáU çÎWÉùE ØíµâZ ®¿áMᢠØíAâ{ßçÜAí

¦ÕÖcÎÞÏß ¥ÄßȵJáU صÜÕßÇ ©ÉµøÃB{ᢠ²KÞ¢

ÄÞAí É¿ßEÞæù ¥¢Ö¢ øIÞ¢ ÄÞAí µßÝæAÏ¢Ö¢."

2. Although plaintiffs filed appeal against

the judgment and decree and petitioner, along

with the other legal heirs of the 12th defendant, O.P.(C) No.1513 of 2020

filed a cross appeal therein, both appeal as well

as cross appeal were dismissed. Thereupon, the

respondents/defendants 4 to 11, who are allotted

with half share in plaint B schedule, filed the

FDIA. The petitioner, though not allotted with

any share, is arrayed as the third respondent in

the final decree application, in his capacity as

legal heir of the deceased 12th defendant and

former Manager of the school functioning in B

schedule property. In the final decree

proceedings, the Advocate Commissioner filed

Ext.P6 report, sketch and share list. The

respondents filed I.A.No.878 of 2010 for

remitting the Commissioner's report, mainly

contending that as per the preliminary decree,

the school building and movables alone are to be

divided and the Commissioner committed a mistake

in valuing the land (3.95 cents) wherein the

school building is situated. It was also

contended that, structures like toilet, well, O.P.(C) No.1513 of 2020

Anganwadi building etc are not part of B schedule

and the Commissioner cannot value the same. As no

objection was filed by the respondents, the

interlocutory application was allowed and the

report remitted to the same Commissioner.

Thereupon, the Advocate Commissioner filed a

revised report excluding the value of the land

and the structures like latrine, well and

Anganwadi building. This time, the petitioner

along with another filed I.A.No.1399 of 2010 for

remitting the Commissioner's report. By Ext.P11

order, the learned Sub Judge dismissed the

application. The petitioner challenged Ext.P11

before this Court and by Ext.P12 judgment, the

impugned order was set aside and the matter

remitted back for providing opportunity to the

petitioner to adduce evidence on his application

seeking remittance of the Commissioner's report.

Thereafter, the petitioner produced certain

accounts pertaining to the amounts allegedly O.P.(C) No.1513 of 2020

spent by him for the repair/renovation of the

school building and furniture and examined the

Advocate Commissioner as a witness. The court

below reconsidered the petitioner's application

in terms of the direction in Ext.P12 judgment and

dismissed the same vide Ext.P18 order. Aggrieved

by Ext.P18, the petitioner preferred O.P.(C)

No.2494 of 2016, which was dismissed under

Ext.P19 judgment, finding that an application for

remitting the Commissioner's report was not

maintainable in the light of the decision in

Francis Assisi v. Sr.Breesiya [2017 (1) KLT

1041]. While dismissing the original petition, it

was made clear that the order will not take away

the right of the party to seek issuance of a

fresh Commission. Accordingly, the petitioner

filed Ext.P20 application for issuing a fresh

Commission to divide the plaint schedule property

by metes and bounds and to file alternative share

list, allotting the plaint schedule property to O.P.(C) No.1513 of 2020

the petitioners in the final decree and the legal

representatives of the 12th defendant. The

respondents filed Ext.P21 objection and the court

below dismissed the application under Ext.P22

order. Hence, this original petition.

3. Heard Adv.V.R.K.Kaimal for the

petitioner and Adv.R.Surendran for the contesting

respondent.

4. Learned Counsel for the petitioner

strenuously contended that B Schedule includes

the land in appurtenant to the school building

and hence, the Commissioner ought to have divided

the land also. In my considered opinion, the

attempt is to re-agitate an issue which has

attained finality. The description of B Schedule

in the decree takes in only the school building

and the furniture therein. The plaintiffs in the

partition suit had challenged the judgment and

decree in appeal and the petitioner, along with

another legal heir of the 12th defendant, had O.P.(C) No.1513 of 2020

filed a cross appeal. The contention in the

cross appeal was that the B schedule property

includes 50 cents of land. By judgment dated

2.01.2006, the cross appeal was dismissed,

finding that the contention that B schedule

consists of 50 cents of land was not raised in

the suit. In I.A.No.878 of 2010 filed by the

contesting respondents, the main reasons for

seeking remittance of Commissioner's report was

that the Commissioner had wrongly valued 3.95

cents of land in which the school building is

situated. The said contention being unopposed,

the application for remittance was allowed. In

the subsequent report, the Advocate Commissioner

rightly excluded the value of the land. In his

chief examination (Ext.P17), the Commissioner has

stated that he had excluded the value of land

after reading the interlocutory application. The

petitioner's application for remitting

Commissioner's report was rejected under Ext.P18 O.P.(C) No.1513 of 2020

order, after taking note of all these facts. The

challenge against that order was repelled by

Ext.P19, reserving the petitioner's liberty to

move an application for issuance of fresh

Commission. Merely because such liberty is

reserved, that cannot be taken to have conferred

a right on the petitioner to seek issuance of

fresh Commission. For that, the petitioner should

be able to point out patent mistakes in the

report, have a bearing on the final decree to be

passed. The only patent mistake being repeatedly

pointed out is the non-inclusion of the land in

partition proceedings. That question having

attained finality, the petitioner cannot seek to

re-agitate the question.

Even though learned Counsel contended that

the reliance placed by this Court on the decision

in Francis Assisi (supra), for rejecting the

challenge Ext.P18 is legally incorrect, this

Court cannot entertain the challenge. The O.P.(C) No.1513 of 2020

contention that, as Manager of the School, the

12th defendant and thereafter, the petitioner had

spent huge amounts for maintenance of the school

has been taken into account by the learned Sub

Judge and the petitioner granted the liberty to

seek sale of the building and other articles

described in the Commissioner's report by auction

among the sharers or by way of public auction, as

the case may be. As rightly observed by the

court below, a fresh Commission need not be

issued for that purpose. Moreover, issuance of a

fresh commission at this stage will only further

protract the passing of a final decree in a suit

of the year 1997.

For the aforementioned reasons, the original

petition is dismissed.

Sd/-

V.G.ARUN JUDGE Scl/ O.P.(C) No.1513 of 2020

APPENDIX OF OP(C) 1513/2020

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.

210/1997 ON THE FILES OF SUB COURT, THALASSERY.

EXHIBIT P2 TRUE COPY OF THE PRELIMINARY DECREE DATED 31.08.1999 IN O.S. NO. 219/1997 PASSED BY THE SUB COURT, THALASSERY. EXHIBIT P3 TRUE COPY OF THE FINAL DECREE APPLICATION IN I.A. NO. 2049/09 IN O.S. NO. 210/97 EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT FILED BY FIRST RESPONDENT AND PETITIONER TO EXT.P3.

EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY RESPONDENTS 4 TO 9 TO EXT.P3. EXHIBIT P6 TRUE COPY OF THE COMMISSION REPORT ALONG WITH SKETCH PLAN, SHARE LISTS AND ACCOUNT LIST.

EXHIBIT P7 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER AND HIS MOTHER TO I.A.NO. 878/2010 EXHIBIT P8 TRUE COPY OF THE REVISED COMMISSION REPORT ALONG WITH PLAN AND SHARE LISTS.

EXHIBIT P9 TRUE COPY OF THE APPLICANT NO. IA 1393/2010 FOR REMITTING THE COMMISSION REPORT.

EXHIBIT P10 TRUE COPY OF THE COUNTER STATEMENT TO EXT.P9 EXHIBIT P11 TRUE COPY OF THE ORDER DATED 15.03.2016 IN I.A.NO. 1399/2010 IN FDIA NO. 32/2012 IN O.S. NO. 210/1997 PASSED BY THE SUB COURT, KANNUR.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 05.07.2016 IN OP(C)NO. 1477/2016 EXHIBIT P13 TRUE COPY OF THE DETAILED ABSTRACT ESTIMATE OF THE EXPENDITURE SPENT BY THE PETITIONER.

EXHIBIT P14 TRUE COPY OF THE SATEMENT OF RECEIPT SHOWING THE EXPENDITURE.

O.P.(C) No.1513 of 2020

EXHIBIT P15 TRUE COPY OF THE STATEMENT OF RECEIPT SHOWING THE EXPENDITURE.

EXHIBIT P16 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OFTHE PETITION TO PRODUCE THE DOCUMENTS.

EXHIBIT P17 TRUE COPY OF THE DEPOSITION OF THE COMMISSIONER.

EXHIBIT P18 TRUE COPY OF THE ORDER DATED 05.09.2016 IN I.A. NO. 1399/2010 IN FDIA, NO. 32/2012 IN O.S.NO. 210/1997 ON THE FILES OF SUB COURT, KANNUR. EXHIBIT P19 TRUE COPY OF THE JUDGMENT DATED 26.10.2019 IN O.P.(C) NO. 2494/2016 EXHIBIT P20 TRUE COPY OF THE PETITION IN I.A. NO.

1170/2019 IN F.D.I.A NO. 32/2012 IN O.S. NO. 210/1997 EXHIBIT P21 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE SECOND FINAL DECREE PETITIONER TO EXT. P20.

EXHIBIT P22 CARBON COPY OF THE ORDER DATED 24.09.2020 IN I.A.NO. 1170/2019 IN F.D.I. A. NO. 32/2012 IN O.S.NO.

210/1997