M.N. Balakrishnan Nair and T. Sukumaran v. Vijayan Menon and Ansal Buildwell Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 WP(C).No. 15484 of 2010(O) -------------------------IA NO.902/2010 IN OS NO.654/2007 OF II ADDL.SUB COURT, ERNAKULAM PETITIONER(S): --------------- 1. M.N. BALAKRISHNAN NAIR, S/O. BALAKRISHNA PANICKER,'SANKERS'P.O., THIRUVANANKULAM, ERNAKULAM DISTRICT. 2. T.SUKUMARAN, S/O. NARAYANAN, CHITHIRA' THAMARAKULANGARA, P.O.THRIPUNITHURA, ERNKAULAM DISTRICT. (BOTH PETITIONERS THROUGH POWER OF ATTORNEY HOLDER M/S.ANSAL BUILDWELL LIMITED THROUGH THE GENERAL MANAGER, M.P.MATHEWS, S/O.M.O.PHILIP) BY ADV. SRI.T.KRISHNANUNNI, SENIOR ADVOCATE SRI.SAJU.S.A RESPONDENT(S): --------------- 1. VIJAYAN MENON, S/O. KUNJAN MENON, KUNNAPPALLY, SANSKRIT COLLEGE ROAD, THRIPUNITHURA, ERNAKULAM. 2. ANSAL BUILDWELL LIMITED, ANSAL RIVER DALE, EROOR P.O., THRIPUNITHURA, ERNAKULAM DISTRICT. ADV. SRI.T.K.VENUGOPALAN FOR R1 SRI SHIBU JOSEPH FOR R1 SRI ABRAHAM MARKOSE FOR R2 SRI MAHEW K.UTHUPPACHAM FOR R2 SRI BINU MATHEW FOR R2 SRI TERRY V.JAMES FOR R2 SRI JOHN PRAKASH FOR R2 SRI TOM THOMAS KAKKUZHIYIL FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.15484/2010 ORDER ON IA NO.6876/2010 DISMISSED 25.11.2010 Sd/-THOMAS P. JOSEPH, JUDGE APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS 654/07 ON THE FILE OF COURT OF SUBORDINATE JUDGE OF ERNAKULAM DATED 2.8.2007 EXTP2 TRUE OPY OF THE PARTITION DEED NO.1265/1971 EXT.P3 TRUE COPY OF THE ASSIGNMENT DEED NO.2098/2005 EXT.P4 TRUE COPY OF THE WRITTEN STATEMENT OF THE 2ND RESPONDENT, DATED 14.9.2007 EXT.P5 TRUE COPY OF JUDGMENT OF THIS COURT IN WP(C) 37530/2008 DATED 11.1.2010 EXT.P6 TRUE COPY OF IA 902/2010 ION OS 654/2007 DATED 16.2.2010 OF SUB COURT, ERNAKULAM EXT.P7 TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE PLAINTIFF DATED 22.3.2010 EXT.P8 TRUE COPY OF ORDER DATED 3.4.2010 IN IA 902/2010 IN OS 654/2007 OF SUB COURT, ERNAKULAM RESPONDENTS' EXHIBITS: EXTR1(a) A TRUE COPY OF THE AGREEMENT FOR SALE EXT.R1(b) A TRUE COPY OF POWER OF ATTORNEY EXT.R1(c) A TRUE COPY OF IA 2168/2008 EXT.R1(d) A TRUE COPY OF COUNTER AFFIDAVIT IN IS 2168/2008 EXT.R1(e) A TRUE COPY OF IA NO.1741/2010 //TRUE COPY// ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------W.P.(C) No.15484 of 2010 -------------------------------------Dated this the 25[th] day of November, 2010.** ## **JUDGMENT** Petitioners in I.A.No.902 of 2010 in O.S.No.654 of 2007 of the court of learned Additional Sub Judge-II, Ernakulam challenge order dated April 3, 2010 declining to implead them as additional defendants in the suit. Respondent No.1/plaintiff filed the suit for recovery of possession of 56 cents on the strength of his title impleading M/s. Ansal Buildwell Limited, a construction company as defendant. According to respondent No.1, suit property was allotted to his share as F schedule in Ext.P2, partition deed No.1265 of 1971 and while he was in possession and enjoyment of the property the defendant trespassed into the said property and hence the suit. Defendant filed Ext.P4, written statement contending that respondent No.1 has no right, title or interest in the suit property and that the suit property belonged in jenm to Kunnappally Kunjan Menon from whom one Varkey took it on lease in the year, 1938. Varkey assigned his lease hold right to Kumari as per document No.1095 of 1966. (In the year, 1971 legal representatives of Kunjan Menon, the jenmy partitioned his properties as per Ext.P2, partition deed.) Kumari assigned her right over the property to one Paily and Paily in turn, assigned his right to one Mathai as per assignment deed No.871 of 1985. Mathai is said to have sold the property to the petitioners in I.A.No.902 of 2010 as per assignment deed No.2098 of 2005. They contended that as per an agreement they entered into with the defendant, property was put **WP(C) No.15484/2010** 2 in the possession of defendant for development by construction of building. On the strength of Ext.P3, assignment deed No.2098 of 2005 petitioners in I.A.No.902 of 2010 sought their impleadment in the suit as additional defendants claiming title over the property. That application was resisted by respondent No.1 contending that petitioners have no right, interest or title over the property and asserting his own right over the property as per Ext.P2, partition deed. In the meantime on the plea of tenancy raised by the defendant in its written statement learned Sub Judge framed an issue regarding tenancy. Defendant wanted question of tenancy to be referred to the Land Tribunal for a finding. Learned Sub Judge allowed the prayer. Respondent No.1/plaintiff challenged that order in this Court in W.P.(C) No.37350 of 2008. This Court vide judgment dated January 11, 2010 allowed the Writ Petition mainly observing that even as per the contention raised by the defendant, it does not claim title over the property and according to the defendant the property belonged to the petitioners and in such a situation no question of tenancy genuinely arose for a decision at the instance of the defendant. Accordingly this Court found that reference of the question raised by defendant is not necessary, set aside the order of learned Sub Judge and directed that issue regarding tenancy to be deleted. It is while so, that petitioners filed I.A.No.902 of 2010 as aforesaid seeking their impleadment. In the meantime defendant sought for and obtained amendment of its written statement incorporating paragraph Nos.4(a) to 4(d). Learned Sub Judge vide Ext.P8, order referring to the contention raised in paragraph No.4(d) of the amended written statement held that property has already been sold to certain **WP(C) No.15484/2010** 3 other persons and hence impleadment of petitioners is not required. Consequence was a dismissal of I.A.No.902 of 2010. Petitioners (represented by defendant as power of attorney holder) challenge the said order in this petition. Learned Senior Advocate appearing for the petitioners contended that learned Sub Judge culled out a particular statement alone from paragraph No.4(c) of the amended written statement to hold that petitioners have no right, interest or title over the property and hence their impleadment is not necessary. This being a suit for recovery of possession of property on the strength of tile, presence of petitioners who have a real claim of title over the property is required. Learned Senior Advocate has placed reliance on the decisions in **Razia Begum v. Sahebzadi Anwar Begum and others (AIR 1958 SC 886)** and **Beepathumma v. Thankamma (1993 (2) KLT 152)** to contend that though respondent No.1 is the master of the suit and may choose the person against whom he should seek relief, it is not as if the court has no power to order impleadment of necessary or even proper parties if their presence is necessary for a proper and effective adjudication of the dispute involved. According to the learned Senior Advocate, documents produced by petitioners vide memo (this day), would indicate that still, petitioners have right over a portion of the suit property. At any rate and even if it is assumed that they have assigned a portion of the suit property to the persons referred to in paragraph No.4(c) of the amended written statement, it is not as if petitioners as assignors are not entitled to be impleaded as necessary or proper parties. It is pointed out that so far as the assignee is concerned, he may seek impleadment with **WP(C) No.15484/2010** 4 permission of the court. But that does not take away right of the assignor to get impleaded in the suit to defend the suit for and on behalf of the assignee as well. Learned counsel for respondent No.1 contended that this Court is not justified in interfering with the order passed by learned Sub Judge after consideration of the materials on record including the contention raised by the defendant in the additional written statement and that supervisory power conferred on this Court under Article 227 of the Constitution does not extent to reappreciation of the evidence unless a grave injustice has been committed by the court below and placed reliance on the decisions in **Subodh Kumar Gupta and others v. Alpana Gupta and others((2005) 11 SCC 578), Radhey Shyam and another v. Chhabi Nath and others((2009) 5 SCC 616), Sneh Gupta v. Devi Sarup and others ((2009) 6 SCC 194)** and **Jai Singh and others v. Municipal Corporation of Delhi and another((2010) 9 SCC 385)** . 2. No doubt, in the decisions referred to by the learned counsel for respondent No.1 the Supreme Court has drawn the limits within which jurisdiction under Article 227 of the Constitution could be exercised by the High Court. It was held that under Article 227 of the Constitution the High Court has jurisdiction to ensure that all statutory/quasi-judicial Tribunals exercised powers vested in them within the bounds of their authority. It is however well to remember the well known adage that greater the power, greater the care and the **WP(C) No.15484/2010** 5 caution in exercise thereof. The High Court therefore is expected to exercise such wide powers with great care, caution and circumspection. The Supreme Court pointed out that exercise of jurisdiction must be within the well recognised constraints and that it cannot be exercised like a “bull in a china shop”, to correct all errors of judgment of a court, or Tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. I shall proceed in the matter as guided by the decisions of the Supreme Court referred to above by learned counsel. 3. No doubt an earlier attempt on the part of the defendant to get the question of tenancy referred to the Land Tribunal was shot down by this Court by Ext.P5, judgment but that was on a finding that defendant had no claim of title over the property and hence no question of tenancy could arise. That does not mean that subsequent claim of petitioners or subsequent events are not to be looked into. It is seen from the order under challenge that learned Sub Judge disallowed the prayer for impleadment of petitioners for the reason that in the amended written statement it was contended that in the year 2006, 2007 and 2009 sales deeds were executed (obviously by petitioners) in respect of the suit property and that property is in the possession of one Augustine, Leslie Augustine, Deepak Tikku, Ambir Singh and the defendant. Copies of the said documents were produced by the defendant in the court of learned Sub Judge. Learned Sub Judge observed that defendant is claiming under the petitioners **WP(C) No.15484/2010** 6 and that petitioners would be helpful to prove the case of defendant (that, defendant is not a trespasser into the suit property but is holding the property under the agreement executed between it and petitioners who according to the defendant are the lawful owners). Observing so, the application was dismissed. 4. Learned Senior Advocate has referred me to the description in item No.5 of F schedule to the partition deed No.1265 of 1971 under which respondent No.1 is claiming absolute right and title over the property. It is stated that the said property is oustanding in the possession of one Assariparambil Kumaran who, it is argued is the husband of Kumari who is said to have acquired right from Varkey as per document No.1095 of 1966. It is the said Kumari who assigned the property in favour of one Paily as per document No.2188 of 1983 who in turn assigned property to Mathai as per assignment deed No.871 of 1985 and it is from the said Mathai that petitioners (allegedly) obtained right over the suit property as per Ext.P3, assignment deed No.2098 of 2005. Learned Senior Advocate has also referred to me the amendment to written statement incorporated by paragraph Nos.4(a) to (d). In paragraph No.4 (a) there is reference to the alleged derivation of title by the petitioners as aforesaid and as contended in the original written statement and in paragraph No.4(b), there is reference to two documents executed by the petitioners on 01.11.2006 (prior to the institution of the suit) and 28.03.2007 in favour of Augustine and Lesli Augustine concerning 12.306 cents each. The third document referred to in paragraph No.4 (b) is a document executed by petitioners in favour of the defendant regarding 18 cents. Assuming so, it **WP(C) No.15484/2010** 7 would appear that petitioners have a claim of title over the remaining 13.388 cents (out of the 56 cents referred to in the plaint schedule), it is contended by learned Senior Advocate appearing for petitioners. In response it is contended by learned counsel for respondent No.1 that it is not clear in the light of averments in the amended written statement whether rest of the suit property has also been assigned by petitioners in favour of strangers. True in paragraph No.4(d) of the amended written statement there is a contention raised by the defendant that “the defendant has secured the tenancy right in the plaint schedule vested in T.Sukumaran and M.N.Balakrishnan Nair”(they are the petitioners before me). But it is contended by learned Senior Advocate that the said statement alone cannot be culled out from the pleadings to hold that petitioners have no subsisting right over the property. According to the learned Senior Advocate that contention must be read in continuation of the contentions raised in paragraph Nos.4(a) to (c) as to the derivation of title. Learned Senior Advocate contends that even if a portion of the property has been assigned, it is well within the right of petitioners atleast on behalf of the assignees and on their behalf to get impleaded in the suit. 5. It is seen from the impugned order that learned Sub Judge took the view that by sale deeds referred to in the amended written statement petitioners have sold their right over the property so that they are not required to be made parties in the suit. Learned Sub Judge has not adverted to all aspects of the matter which I have stated above. Learned Sub Judge has not considered the question Learned Sub Judge has not considered the question of **WP(C) No.15484/2010** 8 rival claims to title to the property, in view of derivation of title claimed by them are necessary or atleast proper parties to the suit. That amounts a jurisdictional error which is required to be corrected. In view of that, the matter has to go back to the learned Sub Judge for a fresh decision. If respondent No.1 has a contention that in view of any other assignment deed executed by petitioners the latter could not claim any right in the suit property it is open to him to produce such document in the court below. 6. In the light of what I have stated above, I consider that the order under challenge cannot be sustained as it is not passed after considering all relevant aspects of the matter and considering all materials in which circumstance Article 227 of the Constitution permits this Court to interfere even going by the decisions of the Supreme Court referred to above. It follows that order under challenge is liable to be set aside. Resultantly this petition is allowed by way of remand. Ext.P8, order is set aside and Ext.P6, application (I.A.No.902 of 2010) is remitted to the court below for fresh decision after giving opportunity to both sides to adduce further evidence in respect of their respective contentions in I.A.No.902 of 2010. **THOMAS P.JOSEPH, Judge.** **cks**