Bahuleyan v. Rema, Usha, ShyLaja, Jayasree and Prabhakaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933** ## **OP(C).No. 2048 of 2011(O)** **------------------------------------** **[IA.NO.2346/2010 IN OS.NO.376/2010 OF MUNSIFF'S COURT,ATTINGAL]** **....................** ## **PETITIONER/IST PLAINTIFF:** **----------------------------------------** **BAHULEYAN, S/O.KUMARAN, AGED 75 YEARS, MADATHIL VEEDU, PLAVODU, PULIMATH VILLAGE, CHIRAYINKEEZH TALUK, THIRUVANANTHAPURAM DISTRICT.** ## **BY ADV. SRI.J.JAYAKUMAR.** ## **RESPONDENTS:** **------------------------** **1. REMA, D/O.RAJAMMA, AGED 45 YEARS, PARAYARUVILAKATHU VEEDU, PAREKUNNIL PUTHENVEEDU, PLAVODU, PULIMATH VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695 612.** **2. USHA, D/O.RAJAMMA, AGED 41 YEARS, PARAYARUVILAKATHU VEEDU, PAREKUNNIL PUTHENVEEDU, PLAVODU, PULIMATH VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695 612.** **3. SHYLAJA, D/O.RAJAMMA, AGED 38 YEARS, PARAYARUVILAKATHU VEEDU, PAREKUNNIL PUTHENVEEDU, PLAVODU, PULIMATH VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695 612.** **4. JAYASREE, D/O.RAJAMMA, AGED 36 YEARS, PARAYARUVILAKATHU VEEDU, PAREKUNNIL PUTHENVEEDU, PLAVODU, PULIMATH VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695 612.** **O.P.(C).NO.2048/2011-O:** **5. PRABHAKARAN, HUSBAND OF RAJAMMA, AGED 74 YEARS, PARAYARUVILAKATHU VEEDU, PAREKUNNIL PUTHENVEEDU, PLAVODU, PULIMATH VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695 612.** **R1 TO R5 BY ADVS. SRI.P.K.MUHAMMED, SRI.S.VIJI.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P.(C).NO.2048/2011-O:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** ## **EXT.P.1: COPY OF THE PLAINT IN O.S. 376/2010 ON THE FILE OF MUNSIFF COURT, ATTINGAL.** **EXT.P.2: COPY OF THE DECREE DTD. 10/07/1997 IN O.S. NO. 358/1997 OF MUNSIFF COURT, ATTINGAL.** ## **EXT.P.3: COPY OF THE JUDGMENT DTD. 08/01/2010 IN O.S. NO. 305/2006 OF MUNSIFF COURT, ATTINGAL.** **EXT.P.4: COPY OF THE FINAL DECREE DTD. 06/06/2009 IN I.A. NO.1545/2005 IN O.S. NO. 103/2003 OF MUNSIFF COURT, ATTINGAL.** **EXT.P.5: COPY OF THE I.A. NO. 2194/2010 IN O.S. NO.103/2003 FILED BY THE PETITIONER'S WIFE AND HER SISTER.** **EXT.P.6: COPY OF THE COMMISSION APPLICATION I.A. NO.2346/2010 FILED BY THE PETITIONER IN EXT.P.1. SUIT.** ## **EXT.P.7: COPY OF THE OBJECTION DTD. 21/01/2011 FILED BY THE RESPONDENTS AGAINST EXT.P.6 COMMISSION APPLICATION.** ## **EXT.P.8: COPY OF THE MEMO DTD. 24/09/2010 ALONG WITH PLAN.** **EXT.P.9: COPY OF THE ORDER DTD. 08/04/2011 IN I.A. NO. 2346/2010 IN O.S. 376/2010 OF MUNSIFF COURT, ATTINGAL.** ## **RESPONDENTS' EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Prv.** # **THOMAS P JOSEPH, J. ----------------------------------O.P.(C)No.2048 of 2011** **--------------------------------Dated this the 23[rd] day of November, 2011** ## **JUDGMENT** Respondents appear through counsel. 2. The challenge is to Ext.P9, order on I.A.No.2346 of 2010 in O.S.No.376 of 2010 of the court of learned Munsiff, Attingal. That is a suit filed by petitioner and his wife as second plaintiff for fixation of boundary between plaint A, B and C schedules, prohibitory injunction and other reliefs. Petitioner claimed title and possession of plaint A schedule- described as 69 cents in resurvey No.168/1 and covered by sale deed No.3493 of 1973. Regarding plaint B schedule, the second plaintiff claimed title and possession as per a settlement deed of the year 1956. Plaint C schedule is said to be the rest of the total extent. In the meantime with the second plaintiff and the respondents on the party array, there is a suit for partition pending as O.S.103 of 2003, where preliminary and final decrees were passed. But, I am told that on the application of the second plaintiff in O.S.376 of ## **O.P.(C)No.2048 of 2011** 2 2010, the final decree was set aside and the application for final decree is pending decision. 3. While so in 376 of 2010 petitioner and the second plaintiff filed I.A.No.2346 of 2010 to appoint a survey commission to identify plaint A and B schedule, after measurement of the same with reference to the relevant document of title and other documents. That application was objected by the respondents contending that in O.S.No.103 of 2003, properties have already been measured and identified and preliminary decree was passed in O.S.No.103 of 2003 on measurement it was found that there is deficit in the total extent of land and hence according to the counsel, the short fall must be suffered by all the respective owners including petitioners and respondents. That objection was accepted and learned Munsiff disposed of Ext.P6, application by Ext.P9, order directing that the Advocate Commissioner and surveyor shall identify the shortage in the whole property and that shortage shall be reclaimed from each property, proportionately. The surveyor and **O.P.(C)No.2048 of 2011** 3 commissioner were also directed to take into account the report and plan in O.S.No.103 of 2003. 4. Learned counsel for petitioner submits that in O.S.No.103 of 2003, petitioner is not a party and that the short fall in the total extent if any, should be confined to the C schedule in O.S.376 of 2010. 5. Learned counsel for respondent contended that since there is shortage in the total extent, that has to be suffered by the respective owners of the plaint A to C schedules and a since plan has already been obtained in O.S.No.103 of 2003 learned Munsiff is right in directing the advocate commissioner and surveyor to comply with the direction contained in Ext.P9, order. 6. In view of the nature of contentions parties have raised, I consider that if possible, it is appropriate that O.S.No.376 of 2010 is tried along with the final decree application in O.S.No. 103 of 2003, so that there could be a final adjudication on the dispute involved in the cases. I say so because according to the petitioner, what ever be the short fall in the total extent of land ## **O.P.(C)No.2048 of 2011** 4 the 69 cents he purchased as per sale deed No.3493 of 1973 (plaint A schedule) and the property covered by the settlement deed in favour of the second plaintiff must remain as such since on the date of settlement and sale, thee was sufficient extent to cover the same. That contention is required to be considered by the court below and since that contention may have a bearing in the decision in O.S.No.103 of 2003, it is appropriate that both suits are tried and jointly decided. A joint trial of the application for passing final decree in O.S.No.103 of 2003(if in the preliminary decree, no decision has been taken as to the extent of property available for partition) and O.S.No.376 of 2010 is possible. 7. Learned counsel for respondents pointed out that petitioner is not a party in O.S.No.103 of 2003, but, I am not inclined to think that a complete identity of parties is required to order joint trial. Learned Munsiff has to follow the decision of the supreme court in **Premlala Nahata v. Chandiprasad (2007** **(1) KLT 971)** and in particular, observations in paragraphs 14 to ## **O.P.(C)No.2048 of 2011** 5 16 while considering the question of joint trial. 8. If a joint trial is possible, it may not be necessary to depute an advocate commissioner and surveyor in O.S.No.376 of 2010 and having regard to the report and plan in O.S.No.103 of 2003, it may be sufficient that petitioner and second plaintiff are given opportunity to object to the correctness of the said plan and report and/or seek remission/setting aside of that report as circumstances warranted. If joint trial is not ordered, learned Munsiff shall consider I.A.No.2346 of 2010 afresh and pass appropriate orders having regard to all facts and circumstances. Resultantly, this Original Petition is allowed as follows: 1. Ext.P9 order is set aside and I.A.No.2346 of 2010 is remitted to the trial court for fresh decision after considering whether O.S.NO.103 of 2003 and 376 of 2010 and the final decree application in O.S.No.376 of 2010 could be tried and disposed of jointly. **O.P.(C)No.2048 of 2011** 6 2. The decision on Ext.P6, application for survey number in O.S.No.376 of 2010 shall depend on the decision learned Munsiff takes in the matter as stated above, after hearing the parties to the suits. sd/- **THOMAS P JOSEPH, JUDGE** /True copy/ P.A. to judge ln