Kerala High Court
Karunakaran vs Saraswathy Amma on 14 June, 2022
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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
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
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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
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
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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.
OP (C)No.2416 of 2021
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.
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
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
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.
OP (C)No.2416 of 2021
