K.K. Narayani and others v. K.K. Padmavathy and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938** **OP(C).NO. 2072 OF 2016 (O)** **---------------------------** **AGAINST THE I.A. NO.1574 OF 2016 IN O.S. NO.439 OF 2013, MUNSIFF'S COURT, THALASSERY** ## **PETITIONER(S):** **-------------** ## **1. K.K.NARAYANI** **AGED 81 YEARS, KAYANADATH HOUSE, PALAYAD VIA, P.O.MELUR** ## **2. K.K.KAMALAKSHI** - **D/O.CHANDUKKUTTY, AGED 76 YEARS, VP.HOUSE, KANHHIROD AMSOM DESOM,** ## **3. K.K.SHEELAVATHI** **D/O.CHANDUKKUTTY, KRISHNA NIVAS, CHILERAI ROAD, EDAKAD AMSOM, THOTTADA DESOM** ## **4. K.K.SUKUMARAN** **S/O.CHANDUKKUTTY, AGED 67 YEARS, RESIDING AT KOOLIKULANGARA HOUSE, KULAM BAZAR, MUZHAPPILANGAD AMSOM DESOM** ## **5. SANTHA** - **W/O.LATE SADANANDAN, KRISHNA KRIPA, KEEZHTHULLI, THAZHE CHOVVA 18** ## **6. MURALIDHARAN** **S/O.LATE SADANANDAN, AGED 50 YEARS, KRISHNA KRIPA, KEEZHTHULLI, THAZHE CHOVVA 18** ## **7. PRAMOD** - **S/O.LATE SADANANANDAN, AGED 43 YEARS, KRISHNA KRIPA, KEEZHTHULLI, THAZHE CHOVVA 18** ## **8. PRASEETHA** **D/O.LATE SADANANANDAN, AGED 43 YEARS, KRISHNA KRIPA, KEEZHTHULLI, THAZHE CHOVVA 18** ## **OP(C).NO. 2072 OF 2016 (O) ---------------------------** ## **9. PRAJID** **S/O.LATE SADANANANDAN, AGED 35 YEARS, KRISHNA KRIPA, KEEZHTHULLI, THAZHE CHOVVA 18** ## **10. SREEMATHI** **W/O.LATE PAVITHRAN, AGED 61 YEARS, RESIDING AT SREELAYAM, MANROOL, P.O.EDAKKAD** ## **11. LIJESH** **S/O.LATE PAVITHRAN, AGED 32 YEARS, RESIDING AT SREELAYAM, MANROOL, P.O.EDAKKAD** ## **12. VINESH** **S/O.LATE PAVITHRAN, RESIDING AT SREELAYAM MANROOL, P.O.EDAKKAD** ## **13. VINISHA** **D/O.LATE PAVITHRAN, RESIDING AT SREELAYAM, MANROOL, P.O.EDAKKAD** ## **BY ADV. SRI.T.R.RAVI** **RESPONDENT(S):** ## **--------------** ## **1. K.K.PADMAVATHY** **D/O.CHANDUKKUTTY, AGED 79 YEARS, ELAYAVOR AMSOM, CHOVVA DESOM, P.O.CHOVVA, KANNUR DISTRICT, PIN 6700018** ## **2. K.K.BALAKRISHNAN** **S/O.CHANDUKKUTTY, KULAM BAZAR, MUZHAPPILANGAD AMSOM DESOM, P.O.MUZHAPPILANGAD, KANNUR DISTRICT, PIN 670001** ## **3. G.V. JAYARAJAN** **S/O.LATE ROHINI, AGED 61 YEARS, SWAPNAKOODU, ATHIRAKAMAL DESOM, UNDAYAD, P.O.UNDAYAD, PIN 670001** ## **4. G.V.RAJEEVAN** **DRIVER, VALLIYA CHALLIL HOUSE, ADOOR, P.O.KADACHIRA, PIN 670001** ## **OP(C).NO. 2072 OF 2016 (O)** ## **---------------------------** ## **5. G.V. PREETHA** **D/O.LATE ROHIBI, AGED 50 YEARS, KRIPA NIVAS, EDAKKAD AMSOM DESOM, PIN 670001** ## **6. G.V.REETHA** - **D/O.LATE ROHINI, ROHINI NILAYAM, PINARAYI AMSOM, CHERIKKAL DESOM, P.O.MAMBARAM, PIN 670001** ## **7. K.K.SAROJINI** - **W/O.LATE BHASKARAN, SRAVAM, P.O.CHOVVA, KANNUR, PIN 670001** ## **8. SUREHS BABU** - **S/O.LATE BHASKARAN, SRAVAM, P.O.CHOVVA, KANNUR, PIN 670001** ## **9. GEETHA** - **D/O.LATE BHASKARAN, ARANI MOTTA, ANJARAKANDY AMSOM, MAMBA DESOM, 670001** ## **10. GIRIJA** **D/O.RAJEEVAN, VK HOUSE, MUTHUKUTY, P.O.MOWANCHERY 670001** ## **11. JAGADEESH** - **RESIDING AT SRAVAM, ELAYAVOOR AMSOM, CHOVVA DESOM, P.O.CHOVVA, KANNUR DISTRICT, 670001** ## **12. PRASANTHAN** - **S/O.LATE SADANANDAN, AGED 48 YEARS, KRISHNA KRIPA, KEEZHTHULLI, THAZHE CHOVVA 18** ## **13. SANEESH** **S/O.LATE PAVITHRAN, RESIDING AT SREELAYAM, MANROOL, P.O.EDAKKAD, 670001** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).NO. 2072 OF 2016 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-----------------------** **EXHIBIT P1 TRUE COPY OF IA.NO. 1574/2016 IN O.S. NO.439/2013 EXHIBIT P2 TRUE COPY OF COUNTER AFFIDAVIT EXHIBIT P3 CERTIFIED COPY OF THE ORDER DT. 26.07.2016 IN IA.NO. 1574/2016** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** **/TRUE COPY/** **P.S. TO JUDGE** ## **K.RAMAKRISHNAN, J.** **= = = = = = = = = = = = = = = = =** **O.P(C) No.2072 of 2016** **- - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of August, 2016** ## **J U D G M E N T** This petition has been filed by the petitioners challenging Ext.P3 order passed by the Munsiff's Court, Thalassery in I.A. No.1574 of 2016 in O.S. No.439 of 2013, under Article 227 of the Constitution of India. 2. It is alleged in the petition that petitioners are defendants 1 to 4, 15, 16, 18 to 22, 24 and 25 in O.S. No.439 of 2013 of the Munsiff's Court, Thalassery. Defendants 17 and 23 were also petitioners before the court below and since they are abroad, they have been shown as respondents 12 and 13 herein. 3. The aforesaid suit was filed seeking partition of the plaint schedule property which is **O.P(C) No.2072 of 2016** ## **-: 2 :-** a paramba having an extent of 28.33 Ares situated in R.S. No.92/1B of Muzhappilangad desom. The said property originally belonged to one Chandukutty as per registered assignment deed No.1129 of 1926 dated 10.06.1926. Defendants 1 to 5 and plaintiff are the children of Chandukutty and others are the legal representatives of deceased children of Chandukutty. Petitioners filed written statement disputing devolution of property as stated in the plaint. According to the petitioners, the property was outstanding in the possession of one Puthussery Kannan and his sister Pokkichi as tenants. The said right was acquired by late Chandukutty as per assignment deed above mentioned. He executed a registered marupat to the jenmi covering the property having an extent of 91 cents in his **O.P(C) No.2072 of 2016** ## **-: 3 :-** lifetime. He had also allowed the local Muslims to construct a Srambi in an extent of 0.75 cents of land and he has permitted the persons of the locality to construct a Vayanasala in an area of 2.75 cents. There is also a pond in the property. 4. In 1975, the President and Secretary of the Srambi filed O.A. No.592 of 1975 before the Land Tribunal, Kannur for obtaining a purchase certificate in respect of 15 cents. That application was dismissed by the Land Tribunal and thereafter the Srambi was gutted in fire. There was attempt to reconstruct the Srambi and hence the legal heirs of late Chandukutty filed O.S. No.352 of 1989 before he Munsiff's Court, Thalassery. Another suit was filed by the Srambi Committee as O.S. No.131 of 1990 for recovery of 13 cents of land **O.P(C) No.2072 of 2016** ## **-: 4 :-** and there was a prayer for mandatory injunction to demolish a shop room constructed on the western side of the property. Both suits were jointly tried, decreed and proceedings are pending in appeal as A.S. No.155 of 2012 before the Principal Sub Judge, Thalassery. The Srambi Committee also filed a Cross Objection. According to the petitioners all the legal heirs of late Chandukutty are aware of the dispute regarding title to the plaint schedule property and the present suit filed at the instance of the plaintiff in O.S. No.131 of 1990 is showing lesser extent. 5. Petitioners filed Ext.P1 application as I.A. No.1574 of 2016 under Section 10 of the Code of Civil Procedure for staying the trial of the suit pending disposal of A.S. No.155 of 2012. Exhibit P2 **O.P(C) No.2072 of 2016** ## **-: 5 :-** counter affidavit was fled in that application and the court below dismissed the application as per Ext.P3 order which is under challenge in this petition. 6. Considering the scope of enquiry, this Court felt that the petition can be disposed of at the admission stage itself after hearing learned counsel for the petitioners. Heard Shri T.R. Ravi, learned counsel appearing for the petitioner. 7. Learned counsel for the petitioners submitted that the actual extent available for partition can be ascertained only after disposal of the above mentioned appeal. 8. It may be mentioned here that admittedly all the parties to the earlier proceedings, viz., O.S. Nos.352 of 1989 and 131 of 1990 were not **O.P(C) No.2072 of 2016** **-: 6 :-** parties to the present proceedings. Further, the suit was filed in respect of a portion of the plaint schedule property in which Muslim community people claimed right to construct the Srambi which was said to have been given to them by the predecessor of the plaintiff. Further, it cannot be said that the entire subject matter is directly and substantially in issue in the earlier proceedings now pending in appeal as A.S. No.155 of 2012. What is the property available for partition can be considered only by the court below at the final stages of the final decree proceedings. Under such circumstances, relying on the decision reported in **Vrinda v. Indira Devi** (1994 [1] KLT 448), the court below is perfectly justified in coming to the conclusion that Section 10 of CPC is not applicable to the ## **O.P(C) No.2072 of 2016** **-: 7 :-** facts of the case and rightly dismissed the application. This Court did not find any irregularity or illegality in the impugned order passed by the court below warranting interference under Article 227 of the Constitution of India. Petition lacks merits and the same is accordingly dismissed. Registry is directed to communicate a copy of this judgment to the court below immediately. Sd/- **K.RAMAKRISHNAN, JUDGE.** VSV /True copy/