Kerala High Court
Francis Varghese vs A.Saraswathi Antharjanam on 4 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
OP(C) NO. 99 OF 2022
AGAINST THE ORDER IN EA NO.92/2021 IN EP 6/2016 IN OS
133/2009 OF SUB COURT, HOSDRUG
PETITIONERS/APPLICANTS/JUDGMENT DEBTOR:
1 FRANCIS VARGHESE
AGED 52 YEARS
S/O. VARGHESE, RESIDING AT NEELAYI,
P.O.PUTHARIYADUKKAM, PEROLE VILLAGE, HOSDURG
TALUK, KASARAGOD DISTRICT, PIN-671314.
2 SALI FRANCIS,
AGED 44 YEARS
W/O. FRANCIS VARGHESE, RESIDING AT NEELAYI,
P.O.PUTHARIYADUKKAM, PEROLE VILLAGE, HOSDURG
TALUK, KASARAGOD DISTRICT, PIN-671314.
BY ADV T.K.VIPINDAS
RESPONDENTS/RESPONDENTS/DECREE HOLDER:
1 A.SARASWATHI ANTHARJANAM
AGED 70 YEARS
W/O. LATE VISHNU EMBRANDIRI,
RESIDING AT ALAKKOT ILLAM NEELAYIL,
P.O.PUTHARIYADUKKAM, VIA NILESHWAR,
PEROLE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, PIN-671314.
2 ESHWARA PRASAD A.,
AGED 45 YEARS
S/O. LATE VISHNU EMBRANDIRI,
RESIDING AT ALAKKOT ILLAM NEELAYIL,
P.O.PUTHARIYADUKKAM,
VIA NILESHWAR,
PEROLE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, PIN-671314.
O.P.(C)No.99 of 2022
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3 NARAYANAN A.,
AGED 40 YEARS
S/O. LATE VISHNU EMBRANDIRI, RESIDING AT ALAKKOT
ILLAM NEELAYIL, P.O.PUTHARIYADUKKAM, VIA
NILESHWAR, PEROLE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, PIN-671314.
4 PARAMESHWRI,
AGED 39 YEARS
D/O. LATE VISHNU EMBRANDIRI, RESIDING AT ALAKKOT
ILLAM NEELAYIL, P.O.PUTHARIYADUKKAM, VIA
NILESHWAR, PEROLE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, PIN-671314.
5 VELLAM PARAMBIL JOSEPH,
AGED 66 YEARS
S/O. CHACKO, RESIDING AT NEELAYIL,
P.O.PUTHARIYADUKKAM, VIA NILESHWAR, PEROLE
VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-
671314.
6 VELLAM PARAMBIL MARY JOSEPH,
AGED 59 YEARS
W/O. JOSEPH, RESIDING AT NEELAYIL,
P.O.PUTHARIYADUKKAM, VIA NILESHWAR, PEROLE
VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-
671314.
BY ADVS.
T.SETHUMADHAVAN (SR.)
M.V.BALAGOPAL
PREETHI. P.V.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
04.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.99 of 2022
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O.P.(C)No.99 of 2022
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JUDGMENT
The claim petitioners, who filed E.A.No.92 of 2021 in
E.P.No.6 of 2016 in O.S.No.133 of 2009, has filed this original
petition under Article 227 of the Constitution of India, challenging
the said order on the ground that the learned Execution Court
failed to understand the case put up by the claim petitioners and
in consequence thereof, the learned Execution Court also failed to
set aside and remit back the commission report and plan for
getting a fresh report and plan.
2. Heard the learned counsel for the petitioners as
well as the learned counsel for respondents 1 and 2.
3. At the time of hearing, the learned counsel for
the petitioners pointed out Ext.P9 plan prepared by the
Commissioner on the application of the claim petitioners. He
submitted that plot B, C, D1 and D2 together constitute the
property of the claim petitioners and D2, out of the same is now
O.P.(C)No.99 of 2022
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included in the decree schedule as item B property. Though the
learned counsel attempted to point out anomaly in the plan, he
also conceded the fact that on calculating plot B, C, D1 and D2,
the one acre land claimed by the claim petitioners could be
found. However, the learned counsel submitted that the decree
holders dispute the claim put up by the claim petitioners in
respect of D2 plot. According to him, such claim cannot be
substantiated, since the plot E located in the plan as B schedule
includes excess land.
4. The learned counsel for respondents 1 and 2
would submit that insofar as the question of dispute herein is
concerned, the commissioner located D2 plot alone as the portion
of the land included in the decree schedule as item B property.
Whether D2 plot is the property of the claim petitioners or else,
the same is part and parcel of the property of the decree holders,
is the matter to be decided in the claim petition and the said
adjudication is awaiting. Therefore, the Execution Court will
address the grievance of the parties and take a decision.
Therefore, remittance of the commission is not necessary.
O.P.(C)No.99 of 2022
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5. Having heard both sides and on perusal of the
plan as discussed, I am of the view that the present plan is
sufficient to address the grievance of the claim petitioners and
also the grievance of the decree holders. The Execution Court
can decide as to whether plot D2 is the property of the claim
petitioners or it is otherwise forming part of B schedule in the
decree. The Execution Court is directed to decide the question
based on evidence to be adduced by both parties, untrammeled
by the observations in this original petition. The right of the claim
petitioners to ascertain correctness of the plan by examining the
commissioner and surveyor can be resorted to, while adducing
the evidence in the claim petition.
This original petition is disposed of accordingly.
Sd/-
A.BADHARUDEEN, JUDGE
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O.P.(C)No.99 of 2022
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APPENDIX OF OP(C) 99/2022
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE EXHIBIT C4 PLAN
FILED BY THE ADVOCATE COMMISSIONER IN
O.S.133/2009.
Exhibit P2 TRUE COPY OF THE JUDGMENT IN
O.S.133/2009 ON THE FILE OF SUB COURT,
HOSDURG DATED 29.10.2015.
Exhibit P3 TRUE COPY OF THE E.P.6/2016 IN
O.S.133/2009 ON THE FILE OF SUB COURT,
HOSDURG.
Exhibit P4 TRUE COPY OF THE CLAIM PETITION AS
E.A.64/2019 IN E.P.6/2016 IN
O.S.133/2009 ON THE FILE OF SUB COURT,
HOSDURG.
Exhibit P5 TRUE COPY OF THE COUNTER IN
E.A.64/2019 IN E.P.6/2016 IN
O.S.133/2009 ON THE FILE OF SUB COURT,
HOSDURG.
Exhibit P6 TRUE COPY OF THE E.A.5/2020 IN
E.A.64/2019 IN E.P.6/2016.
Exhibit P7 TRUE COPY OF THE WORK MEMO FILED BY
THE RESPONDENTS 1 TO 4.
Exhibit P8 TRUE COPY OF THE REPORT FILED BY THE
ADVOCATE COMMISSIONER IN E.A.5/2020.
Exhibit P9 TRUE COPY OF THE PLAN PREPARED BY THE
ADVOCATE COMMISSIONER IN E.A.5/2020.
Exhibit P10 TRUE COPY OF THE E.A.92/2021 ON THE
FILE OF SUB COURT, HOSDURG.
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Exhibit P11 TRUE COPY OF THE OBJECTION TO THE
COMMISSIONER'S REPORT AND PLAN IN
E.A.64/2019 FILED BY RESPONDENTS 1 TO
Exhibit P12 TRUE COPY OF THE ORDER IN E.A.92/2021
IN E.P.6/2016 IN O.S.133/2009 ON THE
FILE OF SUB COURT, HOSDURG DATED
23.12.2021.
