Kerala High Court
P.Dhanya vs K.P.Prabhakaran on 18 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA,
1943
OP(C) NO. 195 OF 2019
IN I.A NO.2303/2018 IN FINAL DECREE INTERLOCUTORY
APPLICATION NO.864/1991 IN O.S NO. 261/1981 OF THE IST
ADDITIONAL SUBORDINATE JUDGE, KOZHIKODE
PETITIONER
P.DHANYA,
AGED 37 YEARS
D/O P RATNA GANDHI, "SEENA", NADUVILAKANDI
PARAMBA, KOTTOOLI AMSOM AND DESOM, KOZHIKODE
TALUK.
BY ADVS.
SRI.T.SETHUMADHAVAN (SR.)
SMT.DEEPA NARAYANAN
RESPONDENTS:
1 K.P.PRABHAKARAN,
AGED 69 YEARS
S/O KORUKUTTY, KASABA AMSOM AND DESOM,
KOZHIKODE TALUK-673 001.
2 K.P.BHARATHAN,
AGED 67 YEARS
S/O KORUKUTTY, KASABA AMSOM AND DESOM,
KOZHIKODE TALUK-673 001.
3 K.NARAYANI,
AGED 65 YEARS
W/O KORUKUTTY, KASABA AMSOM AND DESOM,
KOZHIKODE TALUK-673 001.
4 *K.P.IMBICHAN,
AGED 63 YEARS
VELLAYIKODU AMSOM AND DESOM, KOZHIKODE TALUK-
673 001. (REMOVED)
O.P(C).Nos.195 of 2019 &
272/2019 2
5 *K.P.APPUKUTTY
AGED 74 YEARS
S/O PERAVAN, KASABA AMSOM AND DESOM,KOZHIKODE
TALUK-673 001. (REMOVED)
(*RESPONDENTS 4 AND 5 REMOVED FROM THE PARTY
ARRAY AT THE RISK OF THE PETITIONER VIDE
ORDER DATED 04/02/2019 IN IA.NO.01/2019)
6 K.P.SOBHANA
(DIED)
7 K.P.TESSY,
AGED 44 YEARS
S/O KORUKUTTY, NAGARAM AMSOM AND DESOM,
KOZHIKODE TALUK-673 001.
8 K.P.RATHNA SINGH,
AGED 49 YEARS
S/O KORUKUTTY, KASABA AMSOM AND DESOM,
KOZHIKODE TALUK-673 001.
9 MRS.MEENA S.RAMNATH,
AGED ABOUT 74 YEARS
W/O RAMANATH,KASABA AMSOM AND DESOM,KOZHIKODE
TALUK-673 001.
10 THURUSUNKAL THRESYAMA SOPHIYA,
AGED 44 YEARS
W/O LATE BHAGAVAT SINGH,AGED ABOUT 40 YEARS,
KASABA AMSOM AND DESOM,KOZHIKODE TALUK-673
001.
11 SOBHIKA,
AGED ABOUT 22 YEARS
D/O LATE BHAGAVAT SINGH, KALATHINKUNNU AMSOM
AND DESOM, KOZHIKODE TALUK-673 001.
12 GOPIKA,
AGED ABOUT 20 YEARS
D/O LATE BHAGAVAT SINGH, KALATHINKUNNU AMSOM
AND DESOM, KOZHIKODE TALUK 673 001.
13 SAJITH KUMAR,
AGED 32 YEARS
S/O K.P BHARATHAN, CHAITHANYA, NEDIGADI
GARDEN, NADAKKAVE, KOZHIKODE-673 001.
14 PUSHPAVALLI K.P.
AGED 54 YEARS
S/O K.P BHARATHAN, CHAITHANYA, NEDIGADI
GARDEN, NADAKKAVE, KOZHIKODE-673 001.
O.P(C).Nos.195 of 2019 &
272/2019 3
15 SAJILA SARAVANAN,
AGED 30 YEARS
S/.O K.P BHARATHAN, CHAITHANYA, NEDIGADI
GARDEN, NADAKKAVE, KOZHIKODE-673 001.
BY ADVS.
SRI.E.NARAYANAN
SRI.P.B.KRISHNAN
SMT.AISHWARYA S.R.
SRI.NIRMAL. S
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
10.02.2022, ALONG WITH OP(C).272/2019, THE COURT ON
18.03.2022 DELIVERED THE FOLLOWING:
O.P(C).Nos.195 of 2019 &
272/2019 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA,
1943
OP(C) NO. 272 OF 2019
AGAINST THE ORDER DATED 7.1.2019 IN I.A NO.3254 OF 2002
IN I.A.NO.864 OF 1991 IN O.S NO. 261/1981 ON THE FILE
OF THE IST ADDITIONAL SUBORDINATE, JUDGE' COURT,
KOZHIKODE
PETITIONER
MRS. MEENA S.RAMANATHAN,
W/O RAMANATHAN, RESIDING AT 19/1107-C,
MEERA,POST CHALAPPURAM, KASABA AMSOM DESOM,
CLAICUT-673 002.
BY ADVS.
P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SRI.MANU VYASAN PETER
RESPONDENTS:
1 K.P.PRABHAKARAN,
S/O K.P.KORUKUTTY, RESIDING AT KASABA AMSOM
DESOM, KOZHIKODE, PIN 673 004.
2 SAJITH KUMAR,
S/O K.P.BHARATHAN, CHAITHANYA, NEDIGADI
GARDEN, NADAKKAVE, KOZHIKODE-673 001.
3 PUSHPAKAVALLI.K.P,(ALSO KNOWN AS PUSHPAVALLI
K.P)
W/O K.P.BHARATHAN, CHAITHANYA, NEDIGADI
GARDEN, NADAKKAVE, KOZHIKODE-673 001.
4 SAJILA SARAVANAN,
D/O K.P.BHARATHAN, CHAITHANYA, NEDIGADI
GARDEN, NADAKKAVE, KOZHIKODE-673 001.
O.P(C).Nos.195 of 2019 &
272/2019 5
5 K.P.TESSY,
D/O K.P.KORUKUTTY,'RATNA NIVAS', KURIYAL
LANE, KOZHIKODE TALUK,PIN 673 104.
6 K.P.RATHNA SINGH,
S/O KORUKUTTY, KASABA AMSOM AND DESOM,
KOZHIKODE DISTRICT-673 001.
7 THURUSUNKAL THRESYAMA SOFIYA,
W/O BHAGAVAL SINGH, THURUSUNKAL HOUSE,
THIRUTHIYAD, KALATHINKUNNU AMSOM DESOM,
KOZHIKODE TALUK PIN 673 004.
8 SHOBIKA,
D/O BHAGAVAL SINGH, THURUSUNKAL HOUSE,
THIRUTHIYAD, KALATHINKUNNU AMSOM DESOM,
KOZHIKODE TALUK PIN 673 004.
9 GOPIKA, (MINOR AGED 17)
D/O BHAGAVAL SINGH, THURUSUNKAL HOUSE,
THIRUTHIYAD, KALATHINKUNNU AMSOM DESOM,
KOZHIKODE TALUK PIN 673 004.( RESPONDENT NO 9
IS REPRESENTED BY GUARDIAN AND MOTHER
SOFIYA,RESPONDENT NO.7)
10 P.DHANYA,
D/O LATE RATHNA GANDHI, RESIDING AT 'SEENA',
NADUVILAKKANDI PARAMBA, KOTTOOLI AMSOM AND
DESOM, KOZHIKODE 673 004.
BY ADVS.
SRI.NIRMAL. S
SRI.SRINATH GIRISH
SMT.DEEPA NARAYANAN
SMT.VEENA HARI
SMT.PREETHI. P.V.
SRI.M.V.BALAGOPAL
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
10.02.2022, ALONG WITH OP(C).195/2019, THE COURT ON
18.03.2022 DELIVERED THE FOLLOWING:
O.P(C).Nos.195 of 2019 &
272/2019 6
A. BADHARUDEEN, J.
================================
O.P(C).No.195 of 2019
and
O.P(C).No.272 of 2019
================================
Dated this the 18th day of March, 2022
JUDGMENT
O.P(C).No.272/2019 has been preferred challenging
order dated 07.01.2019 in I.A.No.3254/2002 in
I.A.No.864/1991 in O.S.No.261/1981 by one Meena
S.Ramanathan. K.P.Prabhakaran and others are the
respondents herein. Whereas O.P(c).No.195/2019 is at the
instance of one P.Dhanya. P.Dhanya impugns order in
I.A.No.2303/2018 in the above final decree proceedings on
the files of the First Additional Sub Court, Kozhikode.
K.P.Prabhakaran and others are the respondents therein. The
prayers in O.P(C).No.272/2019 are as under:
"(i) set aside the order Ext.P7;
(ii) direct the Subordinate Judge, Kozhikode to implement
Ext.P5 order forthwith (which has become final) by deputing
O.P(C).Nos.195 of 2019 &
an Amin and assisted by the Circle Inspector of Police,
Kozhikode and deliver physical possession of rooms 104, 105,
108 to 116 and 118 of Kerala Bhavan Lodge, Kozhikode (part
of property described in A schedule to the preliminary decree
in O.S.No.261 of 1981) from respondents 5 to 9 to the
petitioner herein;
(iii) pass an order directing the Subordinate Judge,
Kozhikode to pass an order for delivery with police aid as
prayed for in I.A.No.3254 of 2002 in I.A.No.864 of 1991 in
O.S.No.261 of 1981 on the file of the Subordinate Judge's
Court, Kozhikode forthwith;
(iv) grant the petitioner such other appropriate
reliefs that this Hon'ble Court may deem fit and proper on the
facts and in the circumstances of the case;
and
(v) award to the petitioner the cost of this Original
Petition."
The prayers in O.P(C).No.195/2019 are as under:
"(i) call for the records leading to Ext.P6 and to set aside
the same and to allow I.A.No.2303/2018 on the file of the 1st
Additional Sub Court, Kozhikode; and
(ii) grant such other relief as this Hon'ble Court may
deem fit and proper."
2. I would like to refer the parties in these Original
Petitions as `Meena' and `Dhanya' and `other contesting
respondents', hereinafter for easy discussion.
3. Short facts in O.P(C).No.272/2019:
O.P(C).Nos.195 of 2019 &
Meena filed an application I.A.No.3254/2002 and as per
Ext.P5 order dated 02.04.2008, the prayer for delivery of the
shop rooms purchased by Meena as the share of Sobhana, in
execution of a decree in another Suit, viz., O.S.No.129/85 on
the file of the Sub Court, Kozhikode was allowed. Thereafter
as per order dated 07.01.2019 the said order was cancelled in
view of the finding of this Court in Ex.F.A.No.7/2013.
According to Meena, she got title in respect of 1/7 th
share owned by K.P.Shobhana (one among the 7 sharers in
O.S.261/1981) in resurvey No.17/6/135/2 in old survey
63/1A 1A of Kasba Amsom, where Kerala Bhavan Lodge,
Kozhikode is situated. However, the learned Sub Judge
cancelled order dated 2.4.2008 (Ext.P5) as per Ext.P7 order
dated 07.01.2019 on the finding that this Court has observed
that the identity of the property is in dispute and could be
settled only by passing final decree since the property of the
6th respondent Shobhana had not been set apart so far.
4. In O.P(C).No.195/19 one P.Dhanya, the legal heir
O.P(C).Nos.195 of 2019 &
of one P.Ratna Gandhi, who also claimed to have purchased
property comprised in R.S.No.17-7-165 where Kerala
Bhavan Lodge is situated, filed I.A.No.2303/18 before the
Sub Court, Kozhikode to implead herself as additional
respondent in the final decree application I.A.No.864/1991
pending in O.S.No.261/1981. I.A.No.2303/18 in this case
was dismissed by the learned Sub Judge holding that the
impleadment petition cannot be allowed till the property is
identified, relying on the same Division Bench decision of
this Court in Ex.F.A.No.7/2013.
5. Heard the learned Senior Counsel Shri
S.V.Balakrishna Iyer appearing for Meena and learned Senior
Counsel Shri Sethumadhavan appearing for Dhanya. The
learned counsel for the contesting respondents also were
heard in detail.
6. Going by the order impugned in both the Original
Petitions, it could be noticed that the learned Sub Judge
passed the impugned orders based on a Division Bench ruling
O.P(C).Nos.195 of 2019 &
of this Court in Ex.F.A.No.7/13 dated 14.09.2018. In the said
order, Division Bench of this Court after addressing the rival
claims between the parties, in para.10 to 14 observed as
under:
"10. On an examination of the preliminary decree, it is
seen that both parties have raised rival claims over `A' schedule
property attached with the preliminary decree passed in
O.S.No.261/1981. `A' schedule property is 27.25 cents of
property, comprised in Resurvey No.17-6-135/2 (Sy.No.1A 1A).
Thus, we find that the property purchased by the 10th respondent
in auction stands in conformity with the survey number of `A'
schedule property. Going by `B' schedule in the preliminary
decree, we do not find any landed property comprised in
Resurvey No.17-7-165. Thus, it is seen that the land comprised
in Survey No.165 shown in the purchase certificate is not
included in the schedule attached to the preliminary decree.
11. Here, it is the case of the 10th respondent that he had
purchased the entire property in auction as early on 05.01.2000
and no property was available for purchase by the petitioner on
16.12.2000. The learned counsel for the petitioner Ex.FA.No. 7 of
2013 countered the said argument contending that the survey
number shown in the preliminary decree as well as the sale
certificate in favour of the respondent is not correct and actually,
the building by name Kerala Bhavan Lodging House shown in
the sale certificates Exts.A2 to A4 is situated in the land
comprised in Survey No.165 and not in Survey No.135. Going by
the impugned judgment, it could be seen that no enquiry was
conducted as to the identity of the property before passing the
O.P(C).Nos.195 of 2019 &
impugned order.
12. More importantly, it is pertinent to note that the final
decree is yet to be passed and the property has not been
measured so far in O.S.No.261/1981. Both the petitioner and the
10th respondent have purchased the right of the 6th respondent
only and no property was allotted to the 6th respondent so far. It
is true that the 10th respondent has obtained orders from this
Court to possess 12 rooms in the building by name Kerala
Bhavan Lodging House. But, the land in which the said building
is situated has not been set apart by a final decree in favour of
the 6th respondent.
13. Therefore, in the above context, we are of the opinion
that neither title nor possession over the property shown in the
petition schedule can be declared unless and until Ex.FA.No. 7 of
2013 the title has been passed to the 6th respondent or the
auction purchaser under her in the final decree. Both the parties
have purchased fractional share only of the 6th respondent, in
different court auctions. In the above view, we find that this claim
petition itself was a premature one as they have got a fractional
right only over the property of the 6th respondent and the same
has not been set apart, so far, by a final decree.
On an analysis of the survey numbers, we find that the identity
of the property is also in dispute and the same also can be settled
by the passing of the final decree. Therefore, though we disagree
with the reasoning of the court below, we are inclined to justify
the court below in dismissing the application. We do not find any
reason to interfere with the impugned order under challenge."
7. The learned Senior Counsel appearing for Meena,
however, referred the earlier orders of this Court as well as
the trial court whereby Meena was permitted to take
O.P(C).Nos.195 of 2019 &
possession of room Nos.104 and 105 in the ground floor and
room Nos.108 to 116 and 118 in the first floor of the Kerala
Bhavan Lodge. Ext.P3 order in I.A.No.5038/2001 dated
7.9.2002 (produced in OP(C).272/2019) passed by the
learned Sub Judge has been given emphasis in this regard.
The learned counsel also submitted that when
C.R.P.No.2399/2002 was filed challenging Ext.P3 order, a
single Bench of this Court confirmed the order. It is
submitted further that thereafter in another decision rendered
in C.R.P.No.1911/2003 dated 05.02.2008 while challenging
the order in I.A.No.3254/2002, in para.3 of the above order,
whereby it was found that the 6th respondent Shobhana had
been in possession of the said rooms.
8. In the meanwhile, it is relevant to refer a judgment
rendered by the Apex Court in this matter when the Apex
Court considered challenge against Ex.F.A.No.39/2008
wherein Meena also is additional 10th respondent. But in the
cause title of the judgment in Ex.F.A.No.38/19, the name of
O.P(C).Nos.195 of 2019 &
Meena was not mentioned. Consequently, Meena is not a
party in the judgment of the Apex Court. Anyhow, the Apex
Court set aside the Division Bench decision of this Court in
Ex.F.A.No.38/2009 and connected appeal and appeals
allowed. The Apex Court observed as under:
"It so happened that the suit property was a joint
property. Much before passing of the decree, a suit for partition
had been filed. There were seven owners of the suit property
and a compromise decree had been passed wherein each of he
seven persons was given 1/7th share. In this manner, the three
appellants herein got 1/7th share in the suit property. Together,
they own 3/7th share in the suit property. However, at the time
when this preliminary decree in the partition suit was passed,
these appellants were minors. Though, a preliminary decree is
passed, final decree has not been passed and the shares of the
aforesaid prsons have not been divided by metes and bounds till
date. The appellants filed objections to the aforesaid shares on
the ground that they were not the judgment debtors and in the
execution proceedings their share in the suit property has
already been sold. It was further mentioned that insofar as the
judgment debtor is concerned, she owns only 1/7th share in the
suit property and, therefore, entire property could not have been
put on auction. The Trial Court accepted the aforesaid plea and
objections of the appellants and set aside the sale. However, in
appeal filed by the auction purchaser against that order, the
High Court vide the impugned judgment reversed the order of
the Trial Court. The reason given is that since suit property was
O.P(C).Nos.195 of 2019 &
put to sale and much time expired, the said sale should not be
disturbed or interfered at this juncture. We find that this is an
extraneous reason given for setting aside the sale. Merely
because some time has elapsed in the meantime, would not
mean that in execution proceedings property which belongs to
the third party got sold and third party has no right to challenge
the said sale.
xxxx xxxx xxxx xxxx
We, accordingly, set aside the impugned order and allow
these appeals holding that in the decree in question share of the
appellants could not have been attached or sold. However, we
make it clear that since 1/7th share belongs to the judgment
debtor, her share could have been sold. Therefore, while
restoring the order of the Trial Court, it is modified to the extent
that the auction purchaser shall be entitled to claim 1/7 th share
in the suit property."
It is submitted by the learned counsel for Meena that the
decision of the Apex Court shall not bind Meena since the
said judgment was passed without impleading Meena as a
party to the proceedings. I am not inclined to accept this
argument, since Meena could very well file a Review Petition
before the Apex Court so as to address the grievance by
highlighting her claim. Therefore, Meena cannot wriggle out
from the order of the Apex Court.
9. It is submitted by the learned counsel for Meena
O.P(C).Nos.195 of 2019 &
that `A' schedule property in O.S.261/1981 is property having
an extent of 27 cents in Re-survey No.17/6/135/2 in old
Sy.No.63/1A 1A) of Kasba Amsom in Kozhikode district.
Kerala Bhavan Lodge also is situated therein. Para.3 of the
amended plaint in the above Suit would make it clear that
parties proceeded on the basis of the above schedule
description. Thereafter, preliminary decree passed on
09.02.1984. As per preliminary decree, 4/7th share allotted to
defendants 4 to 7. Thereafter, as per order in
I.A.No.3306/1983, a third party receiver had been appointed
for the suit properties. Defendants 4 to 7 challenged the said
order in CMA.No.190/1983 before this Court. In
CMA.No.190/83, this Court appointed the party receivers.
45 rooms in the southern block were allotted to the
appellants/defendants 4 o 7 with liberty to run the canteen.
10. In a subsequent application filed in
I.A.No.4258/1997, party receivers were appointed whereby
K.P.Sobhana was given 12 rooms, viz., 103, 105 in the
O.P(C).Nos.195 of 2019 &
ground floor and 108 to 116 and 118 in the first floor.
Thereafter, Meena filed E.P.No.157/1992 in
O.S.No.129/1985 to sell 1/7th share of K.P.Sobhana.
Consequently, Meena auctioned 1/7th share of the property on
05.01.2000 and the sale was confirmed on 11.02.2020. Sale
certificate was issued on 16.02.2000. Thereafter, Meena filed
E.A.No.329/2001 in E.P.No.157/1992 in O.S.No.129/1985
and as per report of the Ameen, symbolic delivery was
effected.
11. Thereafter, Meena filed I.A.No.5039/2001 with
prayer to put her in possession of the 12 rooms allotted to
K.P.Sobhana as party receiver and allow her to collect
income therefrom until final decree is passed since the entire
rights of K.P.Sobhana (1/7th share) was purchased by Meena.
As per Ext.P3 order dated 07.09.2002, K.P.Sobhana was
directed to surrender possession of the above 12 rooms and
also restrained K.P.Sobhana from collecting income from the
above room from the date of symbolic possession.
O.P(C).Nos.195 of 2019 &
12. The common order in I.A.No.5039/2001 and
I.A.No.578/2002 was challenged before this Court in
C.R.P.No.2399/2002. O.P(C).No.272/2019 was filed to
challenge the order in I.A.No.578/2002 as Ext.P4.
Thereafter, possession of the 12 rooms was ordered to be
delivered through Amin on 05.04.2002 and posted the matter
on 07.04.2004 for report. Thereafter, a Review Petition as
I.A.No.2404/2003 was filed by defendants 5 to 7 to review
the order so that instead of room No.103, room No.104 was
given to K.P.Sobhana. The said application was allowed on
27.08.2003. While allowing I.A.No.3254/2002 as per order
dated 26.07.2003, by way of review, Meena was permitted to
move on the execution side in O.S.No.129/1985. Meena
filed C.R.P.1911/2003 and the said CRP was allowed holding
that Meena Ramanathan would step into the shoes of
K.P.Sobhana and her remedy lies in O.S.No.261/1981.
However, it was made clear that Meena Ramanathan would
not get any right.
O.P(C).Nos.195 of 2019 &
13. Thereafter, revised order in I.A.No.3254/2002 was
passed as Ext.P5 directing K.P.Sobhana to surrender room
Nos.104, 105, 108 to 116 and 118.
14. While so, Dhanya's predecessor P.Ratna Gandhi
purchased 2 items of properties, viz., (i) 6 cents in
R.S.No.17-7-162 and 11 cents in R.S.No.17-7-165 both in
old survey No.63/1A 1B of Kasba village in execution of
decrees in O.S.No.66/1983 and O.S.Nos.69 to 72 of 1983.
Sale was on 16.12.2000. Sale confirmed on 20.03.2001.
Sale certificate was issued on 14.08.2001.
15. The crucial dispute in this case pertains to the
property purchased by P.Ratna Gandhi in court auction.
According to the learned counsel for Meena, plaint `A'
schedule property having an extent of 27 cent inclusive of
Kerala Bhavan Lodge and the 1/7th share entitled by
K.P.Sobhana was purchased by Meena on 05.01.2000 and the
sale was cnfirmed on 11.02.2000. It was thereafter P.Ratna
Gandhi purchased the property which is distinct and different
O.P(C).Nos.195 of 2019 &
from plaint `A' schedule item in O.S.No.261/1981. In this
connection, the learned counsel for Meena pointed out the
description of plaint `A' schedule property in the decree as
well as the sale certificate in favour of Meena. He also
highlighted the survey numbers shown in the sale certificate
in the name of P.Ratna Gandhi. The learned counsel also
highlighted the respective encumbrance certificates in this
regard.
16. Whereas the learned counsel for Dhanya
submitted that as per Ext.P2 in O.P(C).No.195/2019,
K.P.Bharathan and K.P.Narayanan, being third parties, filed
petition under Section 47 before the executing court in
O.S.No.70/1981, wherein there is mention with regard to the
property in O.S.No.261/1981 and the property described
therein is property in Survey No.61/1A 1B and resurvey
No.17-7-165 having an extent of 21 cents and property in
survey No.63/1A 1B and resurvey 17-7-162 having an extent
of 6 cents, thus 27 cent. The attempt of the learned counsel
O.P(C).Nos.195 of 2019 &
for Dhanya is that the property purchased by P.Ratna Gandhi
in court auction is also the property where Kerala Bhavan
Lodge has been functioning and not any other property,
though there is difference in survey number. In this
connection, the learned counsel canvassed attention of this
Court in Ext.P14 in O.P(c).No.195/2019.
17. Exts.P14 and P15 are the copies of title deeds in
relation to the entire property in the partition suit and therein
the survey number of title deeds to substantiate the survey
number of Kerala Bhavan hotel is the survey number shown
in plaint A schedule property in the partition suit and Ratna
Gandhi relied on mistaken resurvey number and thereby at
the time of attachment and sale of property belonged to
Sobhana, wrong survey number got incorporated. The
learned counsel also highlighted Ext.P16 in
O.P(C).No.195/2019 to establish that I.A.No.3848/1987 was
filed by Parakkandi Vasu and others before the Sub Court,
Kozhikode in O.S.No.261/1981 and in I.A.No.3306/1983,
O.P(C).Nos.195 of 2019 &
seeking permission to sell the share of K.P.Sobhana on the
basis of decree obtained in O.S.Nos.66/1983, 69/1983,
70/1983, 71/1983 and 72/1983. As per order dated 4.3.1988
permission was granted and accordingly plaint schedule item
in O.S.No.261/1981 was sold in auction and in consequence
thereof, Ratna Gandhi purchased the same.
18. In the civil appeal Nos.7235-7239 of 2016, as per
judgment dated 29.07.2016 the Apex Court held that 1/7
share in the property which belongs to the judgment debtor
would be disposed of by way of auction to satisfy the decree
and the auction purchaser shall be entitled to claim 1/7 share
in the suit property. Thus it appears that I.A.2303/2018 filed
by P.Dhanya to implead herself as additional 16th respondent
should have been allowed by the trial court and the Division
Bench judgment relied on by the trial court is not a bar to
implead P.Dhanya as an additional respondent in
I.A.No.864/1991 in O.S.No.261/1981. Therefore, the order
of the execution court negativing the contention of P.Dhanya
O.P(C).Nos.195 of 2019 &
stands set aside and consequently the petition for
impleadment stands allowed and P.Dhanya is impleaded as
additional 16th respondent in the final decree in
I.A.No.864/1991 in O.S.No.261/1981.
19. Coming to the prayer in O.P(C).No.272/2019, the
learned counsel for Meena fervently submitted that since in
relation to room Nos.104 and 105 (ground floor) and room
Nos.108 to 116, K.P.Sobhana was appointed as party
receiver, Meena should be placed in the position of Receiver
to those rooms, wherein K.P.Sobhana was given receivership.
On the crux of the dispute, though this Court and the trial
court passed orders prior to passing of judgment dated
14.09.2018 in Ex.F.A.No.7/2013, as per Division Bench
judgment as extracted in this judgment, the Division Bench
observed that therefore, in the above context, we are of the
opinion that neither title nor possession over the property
shown in the petition schedule can be declared unless and
until the title has been passed to the 6 th respondent or the
O.P(C).Nos.195 of 2019 &
auction purchaser under her in the final decree. Both the
parties have purchased fractional share only of the 6th
respondent, in different court auctions. In the above view, we
find that this claim petition itself was a premature one as they
have got a fractional right only ovr the property of the 6 th
respondent and the same has not been set apart, so far, by a
final decree.
On an analysis of the survey numbers, we find that the
identity of the property is also in dispute and the same also
can be settled by the passing of the final decree. Therefore,
though we disagree with the reasoning of the court below, we
are inclined to justify the court below in dismissing the
application. We do not find any reason to interfere with the
impugned order under challenge.
20. Therefore, any deviation from the finding of the
Division Bench ruling is possible only by challenging the
said verdict. Since Meena S.Ramanathan is the 9 th
respondent in the Division Bench decision, the said decision
O.P(C).Nos.195 of 2019 &
would bind her. Now the same attained finality and as such
this Court sitting in single, cannot take a decision in deviation
from the Division Bench ruling and therefore, I am not
inclined to revisit the order in I.A.No.3254/2002 dated
07.01.2019 in I.A.No.864/1991 in O.S.No.261/1981.
Therefore, the said order is confirmed.
21. In the result:
(i) O.P(C).No.272/2019 stands dismissed;
(ii) O.P(C).No.195/2019 is allowed as indicated
above.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
O.P(C).Nos.195 of 2019 &
APPENDIX OF OP(C) 195/2019
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE COMPROMISE DECREE IN
OS NO 66/1983 DATED 10.2.1984.
EXHIBIT P2 TRUE COPY OF THE APPLICATION FILED BY
RESPONDENTS 2 AND 3 AS E.A. NO
530/2002 IN E.A NO 312/2016 IN E.A NO
1171/1971 IN OS NO 70/1983.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN EX F.A
NO 7/2013 ON THE FILE OF THIS HON'BLE
COURT.
EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT AND THE
ACCOMPANYING APPLICATION TO IA NO
2303/2018.
EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT
FILED BY RESPONDENTS 13 TO 15.
EXHIBIT P6 TRUE COPY OF THE ORDER OF THE SUB
COURT KOZHIKODE IN IA NO 2303/2018
DATED 7.1.2019.
EXHIBIT P7 TRUE COPY OF THE REPLY GIVEN BY THE
VILLAGE OFFICER, KASABA VILLAGE,
KOZHIKODE DATED 9.7.2019.
EXHIBIT P8 TRUE COPY OF THE SALE CERTIFICATE
ISSUED BY THE SUB COURT, KOZHKODE IN
E.P.NO.157/1992 IN O.S.NO.129/1985 IN
THE NAME OF 9TH RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE ENCUMBRANCE
CERTIFICATE PRODUCED BY THE 9TH
RESPONDENT FOR THE PERIOD FROM
01/01/1983 TO 31/12/1998.
EXHIBIT P10 TRUE COPY OF THE ENCUMBRANCE
CERTIFICATE OBTAINED BY THE 9TH
RESPONDENT AFTER THE COURT SALE FOR
THE PERIOD FROM 01/01/1998 TO
08/05/2001.
EXHIBIT P11 TRUE COPY OF THE COMMUNICATION ISSUED
BY THE TAHSILDAR TO THE TOWN
SURVEYOR, KOZHIKODE DATED 20/09/2019.
EXHIBIT P12 TRUE COPY OF THE LETTER SENT BY THE
9TH RESPONDENT TO THE TOWN SURVEYOR,
CORPORATION OF KOZHIKODE DATED
18/03/2020.
O.P(C).Nos.195 of 2019 &
EXHIBIT P13 TRUE COPY OF THE SURVEY SKETCH
PREPARED BY THE VILLAGE OFFICER,
KASABA VILLAGE WITH RESPECT TO
T.S.NO.17.7.165 & 17.7.166.
Exhibit P14 TRUE COPY OF DOCUMENT NO.4/59.
Exhibit P15 TRUE COPY OF THE DOCUMENT NO.103/59.
Exhibit P16 TRUE COPY OF I.A.NO.3848/1987 IN
I.A.NO.3306/1983 IN O.S.NO.261/1981
FILED BY PARAKANDY VASU AND OTHERS
DATED 25/11/1987.
Exhibit P17 TRUE COPY OF COMMUNICATION ISSUED BY
THE TAHSILDAR DATED 23/09/2021.
RESPONDENTS' EXHIBITS
EXT.R4(a) : DATED 6.3.2012, TRUE COPY OF THE SURVEY
SKETCH OF THE PROPERTY IN T.S.17.6.135/2A, 2B AND 2C,
OBTAINED UNDER THE RIGHT TO INFORMATION ACT.
EXT.R4(b) : DATED 24.07.2012, TRUE COPIES OF THE
ENCUMBRANCE CERTIFICATE RELATING TO 6 CENTS IN
R.S.NO.17.7.162 FOR THE PERIOD FROM 1.1.2001 TO
23.7.2012.
EXT.R4(c) : DATED 31.7.2012, TRUE COPY OF THE
ENCUMBRANCE CERTIFICATE RELATING TO 11 CENTS IN
R.S.NO.17-7-165 FOR THE PERIOD FROM 1.1.1959 TO
23.7.2012.
O.P(C).Nos.195 of 2019 &
APPENDIX OF OP(C) 272/2019
PETITIONER'S EXHIBITS
EXHIBIT P1 DATED 16-2-2000, TRUE COPY OF THE SALE
CERTIFICATE ISSUED TO THE PETITIONER IN
EP NO 157 OF 1992 IN OS NO 129 OF
1985,SUB COURT, KOZHIKODE.
EXHIBIT P2 DATED 14.8.2001, TRUE COPY OF THE SALE
CERTIFICATE ISSUED TO P.RETNA GANDHI IN
EP NO 309 OF 1986 IN OS NO 66 OF 1983,
SUB COURT, KOZHIKODE
EXHIBIT P3 DATED 7.9.2002, TRUE COPY OF THE ORDER
IN IA NO 5038 OF 2001 IN OS NO 261 OF
1981, ADDL SUB COURT-1 KOZHIKODE.
EXHIBIT P4 DATED 22.11.2002, TRUE COPY OF THE
ORDER OF THIS HON'BLE COURT IN CRP NO
2399 OF 2002.
EXHIBIT P5 DATED 2.4.2008, TRUE COPY OF ORDER IN
IA NO 3254 OF 2002 IN IA NO 864 OF 1991
IN OS NO 261 OF 1981, ADDL SUB COURT-1
KOZHIKODE.
EXHIBIT P6 DATED 29.7.2016, TRUE COPY OF THE ORDER
OF THE HON'BLE SUPREME COURT IN CIVIL
APPEAL NO (S) 7235-7239 OF 2016.
EXHIBIT P7 DATED 7.1.2019, TRUE COPY OF THE ORDER
IN IA NO 3254 OF 2002 IN IA NO 864 OF
1991 IN OS NO.261 OF 1981 ADDL SUB
COURT-1 KOZHIKODE.
EXHIBIT P8 DATED 13.12.2012, TRUE COPY OF THE
ORDER IN I.A NO 1621 OF 2009 IN
FDIA.864 OF 2001 IN OS NO 261 OF 1981
ADDL SUB COURT-1 KOZHIKODE.
EXHIBIT P9 DATED 14.9.2018, TRUE COPY OF THE
JUDGMENT OF THIS HON'BLE COURT IN EX-FA
NO.7 OF 2013.
