K.K.SAROJINI v. C.K.RUGMAGADAN and others

``` OP(C) NO. 2446 OF 20211 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 ``` ## **`OP(C) NO. 2446 OF 2021`** ``` AGAINST THE ORDER IN IA 2/2021 IN FDIA 1493/2009 IN OS 11/2007 OF MUNSIFF COURT, VATAKARA ``` ## **`PETITIONER/PETITIONER:`** ``` K.K.SAROJINI AGED 74 YEARS D/O. KUNJHIRAMAN, SARASWATHI NIVAS, ONJIYAM VILLAGE, KANNUKARA P.O., VADAKARA VILLAGE, KOZHIKODE DISTRICT- 673 102 ``` ``` BY ADV ZUBAIR PULIKKOOL ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1C.K.RUGMAGADAN AGED 72 YEARS S/O.V.K.KUNJHIRAMAN, ONJIYAM VILLAGE, KANNUKARA P.O., VADAKARA VILLAGE, KOZHIKODE DISTRICT-673 102 2V.K.SARASWATHI, AGED 70 YEARS D/O. KUNJHIRAMAN, SOUPARNIKA HOUSE, ONJIYAM VILLAGE, KANNUKARA P.O., VADAKARA VILLAGE, KOZHIKODE DISTRICT- 673 102 3RAJESHWARI VENU, AGED 59 YEARS W/O. VENU, KOTTAYAM POYIL P.O., PATHAYAMKUNNU, THALASSERY, KANNUR DT-670 691 4RAJADESWARI MOHAN AGED 57 YEARS W/O. MOHAN, MAVULLI PURATHODU HOUSE, PAYATT VALAPPU, KOYILANDI, KOZHIKODE DT -673 305 5REEJA BIJU AGED 55 YEARS W/O. BIJU, PEEDIKA VALAPPIL HOUSE, KOTTALI, KAKKAD , KANNUR DT -670 005 6REENA AJAYAN AGED 51 YEARS W/O. AJAYAN,PAKANDI HOUSE, KOTTAYAM POYIL P.O. PATHAYAMKUNNU, THALASSERY KANNUR DT -670 691 ``` ``` OP(C) NO. 2446 OF 20212 7RAJULA JAIN AGED 49 YEARS W/O. JAIN, KARIPPAKANDI HOUSE, KOTTAYAM POYIL P.O., PATHAYAMKUNNU, THALASSERY, KANNUR DT 670 691 8RAJEESH AGED 46 YEARS S/O.RAGAVAN, KARIPPAKANDI HOUSE, KOTTAYAM POYIL P.O., PATHAYAMKUNNU, THALASSERY, KANNUR DT 670 691 9RAJESH AGED 43 YEARS S/O. RAGAVAN, KARIPPAKANDI HOUSE, KOTTAYAM POYIL P.O., PATHAYAMKUNNU, THALASSERY, KANNUR DT 670 691 BY ADVS. C.BHASKARAN K.SEENA M.PROMODH KUMAR MAYA CHANDRAN NABIL KHADER ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 2446 OF 2021 ``` ``` 3 ``` ## **JUDGMENT** Aggrieved by Ext.P4 order passed in I.A.No.2/2021 in FDIA No.1493/2009 in O.S. No.11/2007 of the Court of the Munsiff, Vatakara, the final decree petitioner has filed the original petition. The respondents in the original petition are the respondents in I.A.No.2/2021. 2. The antecedent facts leading to Ext.P4 order, in a nutshell, are: - (i) The petitioner had filed O.S.No.11/2007 against the respondents. - (ii) The petitioner is residing far away from the plaint schedule property. The 1[st] respondent renovated his house situated in the property. At the time of renovation, the 1[st] respondent encroached into the property allotted to the petitioner having an extent of 1½ cents. - (iii) When the Amin visited the property to effect delivery, the encroachment was noticed. - (iv) The learned Munsiff directed the Advocate ``` OP(C) NO. 2446 OF 20214 ``` Commissioner to report the encroachment and the market price of the property. - (v) A supplementary final decree has not been passed on the basis of the report and plan submitted by the Advocate Commissioner on 26.2.2018. - (vi) The learned Munsiff who passed the order deputing the Commissioner, was transferred. - (vii) Thereafter, the 2[nd] respondent (Janaki) in the final decree application – Janaki – died. Due to the Covid-19 pandemic, there was a delay in deciding the supplementary final decree application. - (viii) The respondents had not objected to Ext.P1 supplementary final decree application. Ext.P2 memo establishes that they have no objection. Ext.P3 is the commission report. - (ix) As per Ext.P3, the respondents 3 to 9 are entitled to an amount of Rs.84,293/- and the petitioner is entitled to an amount of Rs.8,33,438/- as revised owelty. - (x) However, the court below, by the impugned Ext.P4 ``` OP(C) NO. 2446 OF 20215 ``` order, has dismissed Ext.P1 application. (xi) Ext.P4 order is erroneous and wrong. Hence the original petition. 3. The 1[st] respondent has filed a counter affidavit denying the allegations in the original petition, inter-alia, contending that the preliminary decree has attained finality by passing of the judgment by this Court in RSA No.1359/2013 on 16.7.2015. The court below has rightly observed that it is alien to pass a supplementary final decree after the preliminary decree had attained finality. The petitioner is attempting a cut-short method to get over the decree under the of a final disguise seemingly innocuous Ext.P1 application. The decree schedule property is to be acquired by the National Highway authorities to widen the roads. The delivery of the petitioner’s share has already been effected as per order in I.A. No.4/2016 dated 27.3.2018. Ext.R1(b) proceedings issued by the Special Deputy Collector, Land Acquisition, substantiate that the petitioner was given possession of the property and she has submitted all the relevant ``` OP(C) NO. 2446 OF 2021 ``` ``` 6 ``` documents to obtain the compensation. Ext.R1(d) final decree substantiates that the matter has attained finality. This Court in **Thomas K.T.** v. **Anna @ Accamma John and others [2018 (3) KHC 749]** has categorically held that an original petition under Article 227 of the Constitution of India is not maintainable to pass a supplementary final decree. Hence the original petition may be dismissed. 4. Heard; Sri. Zubair Pulikool, the learned counsel appearing for the petitioner; Sri.Nabil Khader, the learned counsel appearing for the 1[st] respondent; Smt. Seena K., the learned counsel appearing for the 2[nd] respondent and Sri. Pramodh Kumar, the learned counsel appearing for the respondents 3 to 9. 5. The question is whether there is any illegality in Ext.P4 order. 6. Ext.R1(c) final decree shows that the final decree was passed on 24.11.2011 in FDIA No.1493/2009. 7. The petitioner has filed I.A. No.2/2021 in FDIA No.1493/2009, on 9.8.2021, to pass a supplementary final ``` OP(C) NO. 2446 OF 20217 ``` decree, that is after six years after the passing of the judgment in R.S.A. No.135/2013, confirming the preliminary decree. 8. This Court, while considering a matter of similar circumstances in **Thomas K.T.** (supra) has observed as follows: “21. There cannot be a dispute for the proposition that in exceptional cases, a supplementary final decree can be passed, provided the original final decree or the final decree passed earlier had not concluded the matters sought to be declared in the supplementary final decree. **Needless to say that there cannot be a supplementary final decree passed touching upon the matters already concluded in the earlier final decree proceedings.** 22. xxx xxx xxx 23. It is a well settled legal proposition that an interlocutory application filed by a party to a partition suit for passing a final decree is only a reminder to the Court for fully and finally discharging its obligations. In other words, since the Court adjourns the case sine die after passing a preliminary decree, an application filed ``` OP(C) NO. 2446 OF 2021 ``` ``` 8 ``` for passing a final decree by one of the parties is only a request to the Court to finally dispose of the case, which amounts to its non-negotiable responsibility. **Notwithstanding that the final adjudication in such an application is captioned normally as an order, in reality it is a final judgment, concluding all the aspects relating to the allotment of properties. Only by such a final judgment, the suit could be said to be concluded. Hence, from this perspective also, the order rejecting an application for passing a final decree becomes appealable under S.96 read with Order XLI of the Code.** 24. However, in the facts of this case, whether a regular appeal will yield any result is an extremely doubtful proposition. From an academic angle, it can be held that an appeal is maintainable against an order refusing to pass a final decree and such an order will fall within the definition of decree in S.2(2) of the Code, because it amounts to a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of a party.” ## 9. Undisputedly, the preliminary decree has attained finality by the judgment passed by this Court in RSA ``` OP(C) NO. 2446 OF 20219 ``` No.1359/2013 (Ext.R1(a)). The allegations raised in Ext.P1 are not matters falling outside the purview of the suit. 10. Going by the law laid down in **Thomas K.T.** (supra), the fact that the preliminary decree has attained finality by Ext.R1(a) judgment, and the final decree having concluded the ‘lis’ and the matter at hand is not an exceptional one, I am of the definite view that Ext.P4 order passed by the court below, dismissing Ext.P1 application to pass a supplementary final decree, does not warrant to be interfered with by this Court under Article 227 of the Constitution of India. In the result, without prejudice to the right of the petitioner to work out her remedies in accordance with law, the original petition is dismissed. Sd/- ## **C.S.DIAS, JUDGE** okb/29.11.22 //True copy// P.S. to Judge ``` OP(C) NO. 2446 OF 202110 ``` ## **`APPENDIX OF OP(C) 2446/2021`** ``` PETITIONER EXHIBITS Exhibit P1THE TRUE COPY OF PETITION FOR SUPPLEMENTAL FINAL DECREE DATED 29.03.2021E Exhibit P2THE TRUE COPY OF HE MEMO, FILED BY THE COUNSEL FOR THE RESPONDENTS 3 TO 10 DATED 25.08.2021 Exhibit P3TRUE COPY OF REPORT SUBMITTED BY ADVOCATE COMMISSIONER DATED 26.02.2018 Exhibit P4ORDER IN IA 2/2021 IN F.D.I.A NO.1493/20199 IN OS NO.11.2007, ON THE FILE OF THE MUNSIFF COURT, VATAKARA DT 25.10.2021 Exhibit P5THE TRUE COPY OF PETITION IN EP 70/2021 FILED BY 1ST RESPONDENT DATED 16.11.2021 Exhibit P6THE TRUE COPY OF ORDER IN C.M.A. 5/2018 ON THE FILE OF SUB COURT VATAKARA DT. 24-1-2019. ```