Mannambath Ammad and others v. Mathath Tharuvayi Haji and others

OP(C) NO. 1722 OF 2022 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944 OP(C) NO. 1722 OF 2022** **AGAINST THE ORDER/JUDGMENT IN IA 28/2022 OF MUNSIFF COURT,** **NADAPURAM** ## **PETITIONER/S:** 1 MANNAMBATH AMMAD,S/O.KALANTHAN, AGED 69 YEARS VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673506 2 ETAKKANDY PATHU AGED 72 YEARS, SWASTHAM, VALAYAM AMSAM AND DESAM, VALAYAM P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673517 3 MANNAMBATH AALI, S/O KALANTHAN AGED 63 YEARS, BUSINESS VELLIYODE AMSAM AND DESAM KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT,KERALA STATE PIN - 673506 4 MANNAMBATH THARUVAYI, S/O KALANTHAN AGED 52 YEARS VELLIYODE AMSAM AND DESAM KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673506 BY ADVS. P.A.AUGUSTINE(AREEKATTEL) RONY AUGUSTINE CRISTO S.PARIYARAM **RESPONDENT/S:** OP(C) NO. 1722 OF 2022 2 1 MATHATH THARUVAYI HAJI, S/O AALI,AGED 75 YEARS, BUSINESS,VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 2 MATHATH KUNHIPATHU HAJJUMMA, D/O AALI, AGED 79 YEARS, SWASTHAM, VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 3 MATHATH BIYYATHU HAJJUMMA, D/O AALI, AGED 72 YEARS VELLIYODE AMSAM AND DESAM, SWASTHAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN – 673506 4 MATHATH ALIYUMMA HAJJUMMA AGED 69 YEARS, D/O AALI, SWASTHAM VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 5 MANNAMBATH SOOPPY, S/O KALANTHAN, AGED 65 YEARS, BUSINESS, VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 6 KAKKATAN VEETTIL ALIYUMMA, D/O AMMAD, AGED 72 YEARS, SWASTHAM, VALAYAM P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE, PIN - 673517 7 VELUTHANKANDY BASHEER, S/O AMMAD, AGED 45 YEARS, BUSINESS, VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 8 CHAMNKANDI BEEKKUTTY, D/O MOIDEEN, AGED 82 YEARS, SWASTHAM, CHEKKIAD AMSAM PULIYAVU DESAM, CHEKKIAD P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE OP(C) NO. 1722 OF 2022 3 PIN - 673509 - 9 EROTH ALIYUMMA, D/O MOIDEEN, AGED 77 YEARS, SWASTHAM, VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 10 KANGANNIRAVUMMAL AYISSU, D/O MOIDEEN AND W/O MOIDU, VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN – 673506 - 11 ALATHAMKANDY KATHEESAD/O MOIDEEN AND W/O ASSAN HAJI, SWASTHAM, VANIMAL AMSAM PERKKADAVU DESAM, VANIMAL P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 12 PUTHIYOTTIL PONNANDI SUMAYYA, D/O AALI HAJI AND W/O MOIDU, AGED 42 YEARS, SWASTHAM, VELLIYODU AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 13 PUTHIYOTTIL PONNANDI FOUSIYA, D/O AALI HAJI AND W/O YUSAF,AGED 40 YEARS, SWASTHAM, VELLIYODU AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 14 PUTHIYOTTIL PONNANDI SAMEERA, D/O AALI HAJI AND W/O ABDUL KHADAR, AGED 38 YEARS VELLIYODU AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 15 KIZHAKKUMPURATH AYISSU, W/O THARUVAYI HAJI, AGED 72 YEARS, SWASTHAM,VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 16 KIZHAKKUMPURATH KUNHAMMAD, S/O THARUVAYI HAJI, AGED 51 YEARS, BUSINESS, OP(C) NO. 1722 OF 2022 4 VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 17 KIZHAKKUMPURATH SOOPPY, S/O THARU VAYI HAJI, AGED 49 YEARS, SWASTHAM, VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 18 KIZHAKKUMPURATH KUNHALI, S/O THARU VAYI HAJI, AGED 47 YEARS, BUSINESS, VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 19 KIZHAKKUMPURATH MYMOONATH, D/O THARU VAYI HAJI, AGED 45 YEARS, KODANCHERI HOUSE, SWASTHAM, VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 20 KIZHAKKUMPURATH SAUDHA, D/O THARU VAYI HAJI, AGED 43 YEARS, SWASTHAM, MURINGOLI HOUSE, NARIPATTA AMSAM THINOORE DESAM, NARIPATTA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 21 KIZHAKKUMPURATH ABDUL JALEEL, S/O THARU VAYI HAJI, AGED 40 YEARS, BUSINESS VELLIYODE AMSAM AND DESAM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 22 PALOLI MOIDU HAJI, S/O SOOPY, AGED 72 YEARS, BUSINESS VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE PIN - 673506 - 23 PALOLI KUNHABDULLA HAJI, S/O SOOPY, AGED 70 YEARS, BUSINESS, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE OP(C) NO. 1722 OF 2022 5 PIN - 673506 |24|PALOLI AALI, S/O SOOPY,| |---|---| ||AGED 67 YEARS, BUSINESS,| ||VELLIYODE AMSOM AND DESOM, KODIYURA P.O.,| ||VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE| ||PIN - 673506| |25|NELLIYAMPURATH THAMASIKKUM PALOLI MAMI| ||AGED 65 YEARS, S/O SOOPY,SWASTHAM,| ||VELLIYODE AMSOM AND DESOM, KODIYURA P.O.,| ||VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE| ||PIN - 673506| |26|ENCHEETAVIDA THAMASIKKUM PALOLI AYISSU, , D/O| ||SOOPY,| ||AGED 62 YEARS, SWASTHAM,| ||VELLIYODE AMSOM AND DESOM, KODIYURA P.O.,| ||VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE| ||PIN - 673506| |27|VANIYANTAVIDA THAMASIKKUM PALOLI ALEEMA, D/O| ||SOOPY,| ||AGED 61 YEARS, SWASTHAM,| ||VELLIYODE AMSOM AND DESOM, KODIYURA P.O.,| ||VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE| ||PIN - 673506| |28|KANNAMPOYIL THAMASIKKUM PALOLI KADEESA, D/O SOOPY,| ||AGED 59 YEARS, SWASTHAM,| ||VELLIYODE AMSOM AND DESOM, KODIYURA P.O.,| ||VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE| ||PIN - 673506| |29|THAYYIL THAMASIKKUM PALOLI MARIYAM, D/O SOOPY,| ||AGED 57 YEARS, SWASTHAM,| ||POONATH P.O., NADUVANNOOR, KOYILANDY TALUK,| ||VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE| ||PIN - 673601| |30|VALIYAPARAMBATH THAMASIKKUM PALOLI SAKEENA, D/O| ||SOOPY,AGED 53 YEARS, SWASTHAM| ||AROORE AMSOM AND DESOM, AOORE P.O.,| ||VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE| OP(C) NO. 1722 OF 2022 6 PIN - 673507 ## **OTHER PRESENT:** ADV RK MURALEEDHARAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1722 OF 2022 7 ## **JUDGMENT** The original petition is filed challenging the order in IA No.28/2022 (Ext.P10) in O.S. No.191/2014 of the Court of the Munsiff, Nadapuram. 2. The antecedent facts, relevant for the determination of the original petition, are: - (i) The petitioners are the plaintiffs and the respondents are the defendants in the above suit which is filed for partition. - (ii) At the time of filing the suit, an Advocate Commissioner was appointed, and Ext.P2 commission report and Ext.P3 plan were filed in the suit. At the instance of the respondents 22 to 30, who objected to Exts.P2 and P3 by filing I.A.No.1061/2017, the report and plan were remitted. Then, the Advocate Commissioner filed OP(C) NO. 1722 OF 2022 8 Ext.P4 report. Subsequently, on the request of the Advocate Commissioner in Ext.P4 report, the Taluk Surveyor was directed to render assistance to the Commissioner, and Ext.P5 report and Ext.P6 plan were filed in the suit. - (iii) In the meantime, the defendants filed their written statement contending that the property belongs to Velliyode Juma Masjid Palli Committee. - (iv) Aggrieved by Exts.P5 and P6, the petitioners filed IA No.750/2019 to set aside the report and plan. But, the application was dismissed. - (v) The petitioners also filed IA No.2/2020 to amend the survey number stated in the plaint as 29/1A1 and 29/1A2 instead of Re-Sy No.30. The said application was also dismissed. - (vi) Thereafter, the petitioners filed IA No.22/2021 to OP(C) NO. 1722 OF 2022 9 remit the commission report and plan. Again, the court below dismissed the said application. - (vii) The petitioners challenged the orders in IA Nos.2/2020 and 22/2021 before this Court by filing OP(C) No.136/2022. This Court by Ext.P7 judgment partly allowed the original petition by permitting the petitioners to file a fresh application for the purpose of identifying the plaint schedule property based on the title deed descriptions and old survey plan and resurvey number in relation to the old survey plan. The petitioners were also granted leave to file an application to amend the pleadings after getting the new commission report. (viii) Based on Ext.P7 judgment, the petitioners filed IA No.27/2022 (Ext.P8) to appoint a Commissioner. As Ext.P8 was not considered, the petitioners filed IA. OP(C) NO. 1722 OF 2022 10 No.28/2022 (Ext.P9) to appoint an Advocate Commissioner, who has experience on the civil side. The court below, by the impugned Ext.P10 order, dismissed Ext.P9 application. Ext.P10 is erroneous and wrong. Hence, the original petition. 3. Heard; Sri.P.A.Augustine, the learned counsel appearing for the petitioner and Sri.R.K.Muraleedharan, the learned counsel appearing for the contesting respondents 22 to 30. In view of the order I propose to pass and considering the fact that only the respondents 22 to 30 are the contesting respondents, I dispense with notice to the respondents 1 to 21. 4. The point is whether there is any error or illegality in Ext.P10 order passed by the court below. 5. The court below, on the application of the petitioners, had permitted an exparte Advocate Commissioner to inspect the property, who filed Ext.P2 OP(C) NO. 1722 OF 2022 11 report and Ext.P3 plan. Subsequently, at the request of the respondents 22 to 30, Exts.P2 and P3 were remitted back. The Advocate Commissioner by Ext.P4 report, requested the assistance of the Taluk Surveyor, which was allowed. Consequently, Ext.P5 report and Ext.P6 plan were placed on record. 6. Then the petitioners filed IA No.750/2019 to set aside Exs.P5 and P6. However, the application was dismissed. 7. In the meantime, the respondents had filed a written statement denying the assertion that the property belongs to the petitioners. They contended that the property belongs to the Velliyode Juma Masjid Palli Committee. 8. Immediately, the petitioners filed IA. No.2/2020, seeking leave to amend the plaint by substituting the resurvey number in the plaint. The said application was OP(C) NO. 1722 OF 2022 12 also dismissed. 9. Later, the petitioners filed IA. No.22/2021 to remit Exts.P5 and P6 to the Advocate Commissioner, which was also dismissed. 10. It was challenging the orders passed in IA No.2/2020 and 22/2021, the petitioners filed OP(C) No.136/2022 before this Court. This Court, by Ext.P7 judgment, allowed the original petition by holding thus: “7. Therefore, I am of the view that Ext.P10 order required to be interfered, with permission to the plaintiffs to file another application for identifying the plaint schedule items based on the title deed descriptions and old survey plan, mentioning resurvey number in relation to the said old survey plan. Permitting the plaintiffs to do so, Ext.P10 is set aside. Coming to Ext.P9 order in IA No.2/2020, I am inclined to confirm the same. However, I leave the liberty to the plaintiffs to file an amendment application, in the event, after getting a new survey commission report based on old survey plan of the properties in tune with description of the same in the partition karar No.1269/53, and on measurement based on title deed OP(C) NO. 1722 OF 2022 13 and old survey number, the plaint schedule items are identified. The original petition is disposed of as above”. 11. On the strength of Ext.P7 judgment, the petitioners initially filed IA.No.27/2022, to identify the plaint schedule property based on the title deed descriptions and old survey number. Alleging that the court below did not consider the application, the petitioners filed IA.No.28/2022 (Ext.P9) to appoint an Advocate Commissioner, who has experience on the civil side. 12. The court below after a threadbare analysis of the antecedent facts by the impugned Ext.P10 order dismissed Ext.P9 application, inter-alia, holding that there is no necessity to appoint a fresh Advocate Commissioner, since the earlier Advocate Commissioner is the best person to inspect and file a report as directed by this Court in Ext.P7 judgment. OP(C) NO. 1722 OF 2022 14 13. Admittedly, the petitioners had earlier filed I.A.No.750/2019 to set aside Exts.P5 report and P6 plan. The said application was dismissed and was not challenged by the petitioners. 14. Later, the petitioners filed IA No.22/2021 to remit Exts.P5 and P6. The said application was also dismissed by the court below. 15. It is this order that was partly set aside by this Court by Ext.P7 judgment, granting liberty to the petitioners to file a fresh application for the purpose of identifying the plaint schedule property based on the title deed descriptions and old survey plan mentioned in the resurvey number in relation to the old survey plan. 16. The petitioners had not sought to set aside Exts.P5 and P6 or appoint a new Advocate Commissioner in I.A.No.22/2021, instead only sought for remission, which was allowed by this Court. Therefore, I OP(C) NO. 1722 OF 2022 15 am of the view that the liberty granted by this Court in Ext.P7 judgment has to be confined and limited to the same relief that was sought for in I.A.No.22/2021 with an additional relief to identify the plaint schedule property based on the title deed descriptions and old survey plan. Otherwise, it will unsettle the earlier reports and plans that are on record, and is also impermissible in law, in the light of the law laid down by a Division Bench of this Court in **Francis Assissi vs. Sr.Breesiya** [2017 (1) KLT 1041]. Even otherwise, the dismissal of the earlier application to set aside Exts.P5 and P6 operate as res-judicata and the petitioners cannot aspire to get a new Advocate Commissioner appointed, which will tantamount and have the effect of setting aside Exts.P5 and P6 indirectly. What the petitioners could not achieve directly cannot be permitted to be done indirectly. On a consideration of the pleadings and materials OP(C) NO. 1722 OF 2022 16 on record, I am of the firm view that the petitioners can seek for a relief within the four corners of I.A.No.22/2021 and Ext.P7 judgment and nothing more. Nonetheless, the petitioners and the respondents would be at liberty to file their work memos before the Advocate Commissioner, who shall with the assistance of the Taluk Surveyor inspect the properties and report the matters requested in IA No.22/2021, the work memos and Ext.P7 judgment. I do not find any error or illegality in Ext.P10 order, warranting interference by this Court under Article 227 of the Constitution of India. With the above observations, the original petition is dismissed. Sd/- ## **C.S.DIAS, JUDGE** rkc/16.09.22 OP(C) NO. 1722 OF 2022 17 ## **APPENDIX OF OP(C) 1722/2022** PETITIONERS' EXHIBITS EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.191/14 OF THE MUNSIFFS COURT, NADAPURAM EXT.P2 TRUE COPY OF COMMISSION REPORT DT.6.12.14 IN OS NO.191/14 OF THE MUNSIFF'S COURT, NADAPURAM EXT.P3 TRUE COPY PLAN SUBMITTED BY TEH COMMISSIONER IN EXT.P2 COMMISSION REPORT EXT.P4 TRUE COPY OF COMMISSION REPORT IN OS NO.191/14 OF TEH MUNSIFF'S COURT, NADAPURAM EX.P5 TRUE COPY OF REPORT DT.8.8.19 SUBMITTED BY TEH ADVOCATE COMMISSIONER IN OS NO.191/14 OF THE MUNSIFF'S COURT, NADAPURAM EXT.P6 TRUE COPY OF PLAN SUBMITTED BY THE TALUK SURVEYOR IN OS O.191/14 OF THE MUNSIFF'S COURT, NADAPURAM EXT.P7 TRUE COPY OF JUDGMENT DT.11.2.22 PASSED BY THIS HO'BLE COURT IN OPC NO.136/22 EXT.P8 TRUE COPY OF IA NO.27/22 IN OS NO.191/14 FILED BEFORE THE MUNSIFF'S COURT, NADAPURAM EXT.P9 TRUE COPY OF IA NO.28/22 IN OS NO.191/14 FILED BEFORE THE MUNSIFF'S COURT, NADAPURAM EXT.P10 TRUE COPY OF ORDER DT.10.822 PASSED IN IA NO.28/22 IN OS NO.191/14 OF THE MUNSIFF'S COURT, NADAPURAM