Kerala High Court
Amarchand vs Narayanan Nambiar on 10 February, 2025
Author: K.Babu
Bench: K. Babu
2025:KER:11388
O.P (C) Nos.953 & 965 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
OP(C) NO. 953 OF 2020
AGAINST THE ORDER DATED 27.02.2020 IN E.A 342/2019 IN E.A
246/2019 IN E.A 127/2019 IN E.P 35/2019 IN I.A 857/2004 IN
OS NO.55 OF 1997 OF SUB COURT, MANJERI
PETITIONER/1St RESPONDENT:
AMARCHAND,
AGED 54 YEARS,
S/O.MADHAVIKUTTY(WRONGLY SHOWN IN THE IMPUGNED
ORDER AS MADHAVANKUTTY, PLEASE REFER TO EXHIBIT
P1), MANJERI AMSOM, ARUKIZHAYA DESOM,
MANJERI P.O, MALAPPURAM, PIN-676121
BY ADVS.
VINOD RAVINDRANATH
MEENA.A.
K.C.KIRAN
M.R.MINI
ASHWIN SATHYANATH
ANISH ANTONY ANATHAZHATH
THAREEQ ANVER K.
RESPONDENTS/PETITIONERS AND 2ND RESPONDENT:
1 DAMODARAN, S/O.PUTHIYOTTIL NARAYANAN NAIR,
PAYYHOLI.P.O, MELADI,
KOZHIKODE DISTRICT, PIN-673522
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O.P (C) Nos.953 & 965 of 2020
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2 KUNHIKRISHNAN,
S/O.PUTHIYOTTIL NARAYANAN NAIR,
PAYYHOLI.P.O, MELADI,
KOZHIKODE DISTRICT, PIN-673522
3 SUSEELA,
D/O.PUTHIYOTTIL NARAYANAN NAIR,
PAYYHOLI.P.O, MELADI,
KOZHIKODE DISTRICT, PIN-673522
4 THAYYATT BALAN,
S/O.V.C.NAMBIAR, EDAKKAD,
ATHANIKKAL, WEST HILL,
KOZHIKODE PIN-673005
BY ADVS.
SRI.DINESH MATHEW J.MURICKEN
SRI.S.VINOD BHAT
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
10.02.2025, ALONG WITH OP(C).965/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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O.P (C) Nos.953 & 965 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
OP(C) NO. 965 OF 2020
AGAINST THE ORDER DATED 27.02.2020 IN E.A 368/2019 IN E.A
247/2019 IN E.A 127/2019 IN E.P 35/2019 IN I.A 857/2004 IN
OS NO.55 OF 1997 OF SUB COURT, MANJERI
PPETITIONER/1St RESPONDENT:
AMARCHAND,
AGED 54 YEARS
S/O. MADHAVIKUTTY (WRONGLY SHOWN IN THE IMPUGNED
ORDER AS MADHAVANKUTTY, PLEASE REFER TO EXHIBIT
P1),
MANJERI AMSOM,
ARUKIZHAYA DESOM,
MANJERI P.O.
MALAPPURAM, PIN- 676 121.
BY ADVS.
VINOD RAVINDRANATH
SMT.MEENA.A.
SRI.K.C.KIRAN
SMT.M.R.MINI
SRI.ASHWIN SATHYANATH
SHRI.ANISH ANTONY ANATHAZHATH
SHRI.THAREEQ ANVER
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O.P (C) Nos.953 & 965 of 2020
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RESPONDENTS/PETITIONERS AND 2ND RESPONDENT:
1 NARAYANAN NAMBIAR, AGED 75 YEARS,
S/O. GOVINDAN NAMBIAR, MUNDODAN,
PUTHAN VEEDU (LAKSHMI VILAS), KUTTIMUNDA,
CHUNGATHARA, NILAMBUR TLAUK,
MALAPPURAM DISTRICT, 676 542.
2 THAYYATT BALAN,
S/O. V.C. NAMBIAR, EDAKKAD,
ATHANIKKAL, WEST HILL,
KOZHIKODE 673 005.
BY ADVS.
SRI.DINESH MATHEW J.MURICKEN
SRI.S.VINOD BHAT
KUM.ANAGHA LAKSHMY RAMAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
10.02.2025, ALONG WITH OP(C).953/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2025:KER:11388
O.P (C) Nos.953 & 965 of 2020
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K.BABU, J.
--------------------------------------
O.P (C) Nos.953 & 965 of 2020
---------------------------------------
Dated this the 10th day of February, 2025
JUDGMENT
The petitioner is the decree holder in E.P No.35/2019 in O.S
No.55/1997 on the file of the Subordinate Judge's Court, Manjeri.
The predecessor-in-interest of the petitioner instituted the Original
Suit for partition of the plaint schedule property having an extent of
8.61 acres. The Trial Court passed a preliminary decree which was
modified by this Court in RFA No.576/2014. The petitioner filed final
decree application before the Trial Court.
2. Respondent Nos.1 to 3 in O.P(C) No.953/2020 filed a
petition (E.A No.246/2019) under Order XXI Rule 97 CPC claiming
right over the property sought to be delivered. Respondent No.1 in
O.P(C) No.965/2020 also filed a petition (E.A No.247/2019) claiming
right over the property under Order XXI Rule 97 CPC. The Court
below proceeded to adjudicate the applications filed by the
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O.P (C) Nos.953 & 965 of 2020
claimants. During the trial in the claim petitions, the claimants filed
E.A Nos.342/2019 and 368/2019 under Order XXVI Rule 9 CPC to
appoint a Commissioner to identify the properties over which they
raised claim. The Court below allowed the application and
appointed an Advocate Commissioner and a surveyor to identify the
properties. These orders are under challenge in these Original
Petitions at the instance of the decree-holder.
3. The learned counsel for the petitioner submitted that the
attempt of the claimants is only to prolong the matter and delay the
delivery of the properties over which the claimants failed to
establish any right.
4. The learned counsel for the respondents/claimants
submitted that the commission report prepared during the final
decree stage cannot be relied upon by them as they were not
parties in the proceedings. It is submitted that in view of the
dispute in the identity of the properties involved, the appointment of
a Commissioner and a Surveyor is highly required to adjudicate the
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O.P (C) Nos.953 & 965 of 2020
rights of the parties.
5. The Court below observed that for proper identification of
the properties over which the respondents raised claim the
issuance of a commission is required. The Court below has
addressed the rival contentions in paragraph 16 of the impugned
order, which reads thus:
"16. The petitioners had approached this court in
the Execution Petition when it is posted for delivery.
They are absolutely third parties in the case. They had
filed petition under Order 21, Rule 97 of the Civil
Procedure Code in which a detailed adjudication is
necessary and the court had to adjudicate the claim of
the third party and to give a decision which is an
appealable order also. The petitioners are claiming
some rights in the property which is a subject matter of
final decree in this case. Admittedly, they were not
parties in the suit or in the final decree. Suppose the
commissioner who had noticed the petitioners
presence at the place had informed the Court about
their claims in the final decree, but such claims cannot
be adjudicated at the final decree stage. Now at this
stage, the petitioner had rightly come before the Court
to adjudicate their claims on merits. The dispute is
regarding the identity of the property belonging to the
petitioners and their possession in the properties for
which they had to prove their claims. Of course in E.A
368/2019 the petitioners had already produced tax
receipts. But they can very well produce their title
deeds before the commissioner and get their properties
to be identified by the commissioner. They can very well
produce the title deed before the court at the time of
adjudication when their evidence is adduced before the
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court. The court cannot stand in the way of adjudicating
their claim. The court cannot say that the petitioners
are bound by the commission report and plans which
were filed before the Court, in their absence. For
proper adjudication of claim petitions and to identify the
properties in the possession of the petitioner, the
appointment of a commissioner is necessary in this
case in order to ascertain that whether the final decree
applicants are claiming the property of the petitioner. If
the claim petitioners are unnecessarily resisting the
delivery without any efficient grounds the Court can
deal with them in accordance with law. But before the
same, the court had to adjudicate their claims if their
claims are right and proper. Moreover, if a
commissioner is appointed in this case it will not do any
harm to the decree holder in this case. If the decree
holder has to made out something during the
commission inspection, he can very well give work
memo to the commissioner to made out those facts."
6. The learned counsel for the petitioner raised a contention
that the application for issuance of a commission was made after
the examination of the claimants which would go to show that the
intention of the parties was to delay the final decree proceedings.
7. Essentially, the dispute is with regard to the identity of the
properties involved. This Court is of the view that no prejudice
would be caused to the petitioner if a commission is issued to
ascertain the identity of the properties over which the parties
raised rival claims.
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8. Having regard to the nature of the contentions raised, this
Court is of the view that the impugned orders have not been
affected with any illegality or impropriety warranting interference
of this Court under Article 227 of the Constitution of India.
Therefore, the Original Petitions lack merits.
9. Having regard to the fact that the suit is of the year 1997,
there will be a direction to the Court below to consider and dispose
of the claim petitions within three months from the date of
production of a certified copy of this judgment.
These Original Petitions (Civil) stand dismissed.
Sd/-
K.BABU,
JUDGE
KAS
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O.P (C) Nos.953 & 965 of 2020
APPENDIX OF OP(C) 953/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED
20.02.2019 IN R.F.A 576/2014 ON THE
FILES OF THE HON'BLE HIGH COURT OF
KERALA
EXHIBIT P2 TRUE COPY OF E.A 246/19 IN E.P.35/2019
IN IA 857/2004 IN O.S. 55/1997 DATED
09.08.2019 ON THE FILES OF THE COURT OF
THE SUBORDINATE JUDGE OF MANJERI
EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED
25.08.2019 FILED BY THE PETITIONER
EXHIBIT P4 TRUE COPY OF THE CHIEF AFFIDAVIT DATED
09.10.2019 SWORN BY THE 1ST RESPONDENT
EXHIBIT P4(A) TRUE COPY OF THE CROSS EXAMINATION
IN E.P.35/2019 IN O.S 55/1997 ON THE
FILES OF THE COURT OF MAJERI
EXHIBIT P5 TRUE COPY OF THE COMMISSION APPLICATION
DATED 19.10.2019 FILED AS EA 246 IN EA
246/2019 IN EP 35/2019 IN OS 55/1997 ON
THE FILES OF THE COURT OF MANJERI
EXHIBIT P6 TRUE COPY OF THE OBJECTION DATED
20.10.19 TO EA 127/19 IN EA 246/2019 IN
EP 35/2019 IN OS 55/1997 ON THE FILES
OF THE COURT OF MANJERI
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 27.02.2020
IN EA 246/2019 IN EP 35/2019 IN OS
55/1997 ON THE FILES OF THE COURT OF
MANJERI
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O.P (C) Nos.953 & 965 of 2020
APPENDIX OF OP(C) 965/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED
20.02.2019 IN R.F.A 576/2014 ON THE
FILES OF THE HONBLE HIGH COURT OF
KERALA.
EXHIBIT P2 TRUE COPY OF E.A. 247/19 IN E.A. 127 IN
E.P. 35/2019 IN I.A. 857/2004 IN O.S.
55/1997 DATED 29.07.2019 ON THE FILES
OF THE COURT OF THE SUBORDINATE JUDGE
OF MANJERI.
EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED
25.08.2019 FILED BY THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE COMMISSION APPLICATION
DATED 26.11.2019 FILED AS E.A. 368/2019
IN E.A. 247/2019 IN E.P. 35/2019 IN
O.S. 55/1997 ON THE FILES OF THE COURT
OF THE SUBORDINATE JUDGE OF MANJERI.
EXHIBIT P5 TRUE COPY OF THE OBJECTION DATED 03.12.
2019 TO E.A. 127/19 IN E.A. 246/2019 IN
E.P. 35/2019 IN O.S. 55/1997 ON THE
FILES OF THE COURT OF MANJERI.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 27.02.2020
IN E.A. 368/2019 IN E.A. 247/2019 IN
E.A. 127/2019 IN E.P. 35/2019 IN O.S.
55/1997 ON THE FILES OF THE SUB COURT,
MANJERI.
