OP(C) No.2460 of 2013 (O)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 22ND DAY OF OCTOBER 2013/30TH ASWINA, 1935** ## **OP(C).No. 2460 of 2013 (O)** **---------------------------** **(JUDGMENT AND DECREE IN O.S.NO.460/2001 OF THE COURT OF MUNSIFFMAGISTRATE, SULTHAN BATHERY DATED 22.8.2006)** ## **PETITIONERS/DEFENDANTS 1 AND 3 TO 4 IN THE SUIT.:** **-----------------------------------------------** **1. VISWANATHAN NAIR, SON OF LATE KUTTYKRISHNAN NAIR, CHEERAL AMSOM DESOM BATHERY TALUK, WAYANAD.** **2. P.K.CHANDRAN NAIR, SON OF LATE KUTTYKRISHNAN NAIR, CHEERAL AMSOM DESOM BATHERY TALUK, WAYANAD.** **3. P.K.BHASKARAN NAIR, SON OF LATE KUTTYKRISHNAN NAIR, CHEERAL AMSOM DESOM BATHERY TALUK, WAYANAD.** **BY ADVS.SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE** ## **RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT:** **-----------------------------------------** **1. MEENAKSHI, SWASTHAM, KOODATHINGAL VEED, D/O.GOVINDAN NAIR CHEERAL AMSOM DESOM, BATHERY TALUK-673592.** **2. KOODATHINGAL VIJAYALAKSHMI, SWASTHAM, CHEERAL AMSOM DESOM, BATHERY TALUK-673592.** **3. VIJESH, SON OF MEENAKSHI, SWASTHAM, CHEERAL AMSOM DESOM BATHERY TALUK-673592.** **4. P.K.BALAKRISHNAN NAIR, SON OF KUTTIKRISHNAN NAIR, CHEERAL AMSOM DESOM SULTHAN BATHERY TALUK, WAYANAD-673592.** **R1 -R 4 BY ADV. SRI.A.K.SRINIVASAN R1 -R 3 BY ADV. SRI.A.S.BENOY** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **APPENDIX** **OP(C).No. 2460 of 2013 (O) ---------------------------** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1: COPY OF APPLICATION DATED 9.2.1970 FOR PATTAYAM SUBMITTED BY KUTTIKRISHNAN NAIR.** **EXHIBIT P2: COPY OF NOTE DATED 1.4.1970.** **EXHIBIT P3: COPY OF NOTE DATED 28.5.1970.** **EXHIBIT P4: COPY OF ORDER IN FORM NO.1 DATED 3.6.1970 ISSUED TO KUTTIKRISHNAN NAIR BY THE ASSESSING AUTHORITY.** **EXHIBIT P5: COPY OF PATTA IN FORM NO.II DATED 25.6.1970 ISSUED TO KUTTIKRISHNAN NAIR BY THE ADMINISTRATIVE OFFICER.** **EXHIBIT P6: COPY OF PLAINT DATED NIL. FILED BY RESPONDENTS 1 TO 3 FOR PARTITION OF THE PROPERTIES COVERED BY THE PATTA.** **EXHIBIT P7: COPY OF DECREE DATED 22.8.2006 IN O.S.NO.460 OF 2001 OF THE COURT OF MUNSIFF-MAGISTRATE, SULTHAN BATHERY.** **EXHIBIT P8: COPY OF THE DEPOSITION DATED 7.12.2011 OF THE SURVEYOR.** **EXHIBIT P9: COPY OF DEPOSITION DATED 8.3.2011 OF THE ADVOCATE COMMISSIONER.** **EXHIBIT P10: COPY OF DEPOSITION DATED 21.3.2012 OF THE VILLAGE OFFICER.** **EXHIBIT P11: COPY OF DEPOSITION DATED 14.3.2012 OF THE TAHSILDAR.** **EXHIBIT P12: COPY OF COMMISSION REPORT DATED 31.5.2011 FILED BY THE COMMISSIONER IN I.A.NO.583 OF 2009 IN O.S.NO.460 OF 2001.** **EXHIBIT P13: COPY OF OBJECTION DATED 18.6.2011 FILED ON BEHALF OF THE PETITIONERS.** **EXHIBIT P14: COPY OF ORDER DATRRED 231.7.2012 IN I.A.NO.699 OF 2011 IN O.S.NO.460 OF 2001 OF THE COURT OF MUNSIFF-MAGISTRATE, SULTHAN MATHERY.** **EXHIBIT P15: COPY OF REVIEW PETITION DATED 10.8.2012 FILED BY THE PETITIONERS IN O.S.NO.460 OF 2001.** **EXHIBIT P16: COPY OF ORDER DATED 9.4.2013 ISSUED BY THE COURT OF MUNSIFF-MAGISTRATE, SULTHAN BATHERY.** **EXHIBIT P17: COPY OF ORDER DATED 9.4.2013 IN I.A.NO.741 OF 2012 ISSUED BY THE COURT OF MUNSIFF-MAGISTRATE, SULTHAN BATHERY.** **EXHIBIT P18: COPY OF COMMUNICATION DATED 9.11.2011 ISSUED BY THE TAHSILDAR, SULTHAN BATHERY.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **TRUE COPY** **PA TO JUDGE** **SCL.** ## **P. N. RAVINDRAN, J.** ## **---------------------------** ## **O.P.(C) No.2460 of 2013 ------------------------------Dated this the 22[nd] day of October, 2013** ## **JUDGMENT** The petitioners are defendants 1, 3 and 4 respectively in O.S.No.460 of 2001 on the file of the Court of the Munsiff Magistrate of Sulthan Bathery. Respondents 1 to 3 are the plaintiffs and the fourth respondent is the second defendant therein. The suit for partition was originally instituted in the Court of the Munsiff of Kalpetta as O.S.No.6 of 1991. After trial, it was dismissed by judgment delivered on 31.1.1992. Aggrieved by the decree and the judgment dismissing the suit, the plaintiffs preferred A.S.No.34 of 1992 in the Court of the Subordinate Judge of Sulthan Bathery. The appeal was allowed and the suit was remanded for fresh trial and disposal by judgment dated 25.3.1994. After remand, the suit was transferred to the Court of the Munsiff Magistrate of Sulthan Bathery where it was taken on file and numbered as O.S.No.460 of 2001. After fresh trial, a preliminary decree for partition was passed on 22.8.2006. Though defendants 1, 3 and 4 filed A.S.No.41 of 2006 in the Court of the Subordinate Judge of Sulthan Bathery, the appeal was dismissed by judgment delivered on 29.11.2008. R.S.A No.358 O.P.(C) No.2460 of 2013 2 of 2009 filed by them in this Court was dismissed by judgment delivered on 1.6.2009. The preliminary decree passed in the suit has thus attained finality. 2. The suit instituted by respondents 1 to 3 was for partition and separate possession of two items of properties described in the plaint schedule. Item No.1 is described as a parcel of land 6.20 acres in extent, situate in Sy.No.2908/2 of Cheeral Village, Bathery Taluk, Wayanad District. Item No.2 is described as a parcel of land 2.47 hectres in extent (paddy fields) situate in Sy.No.1368 (New Sy.No.2886/1) of Cheeral Village, Bathery Taluk, Wayanad District. Ext.P6 is a copy of the plaint in the instant case. Respondents 1 to 3 had in the plaint averred that they are the wife and the children respectively of late Velayudhan Nair, a sibling of the defendants, who passed away on 27.3.1983. They contended that the plaint schedule properties belonged to late Kuttikrishnan Nair, father of the defendants and late Velayudhan Nair (the predecessor-in-interest of the plaintiffs), that he was in possession and enjoyment thereof and that he passed away on 20.2.1983, while he was in possession and enjoyment thereof. In paragraph 4 of the plaint, the plaintiffs had averred that item No.I belonged to late Kuttikrishnan Nair as per Patta No.315 of O.P.(C) No.2460 of 2013 3 1970 issued under the Wynad Colonisation Scheme Rules, 1969. As regards item No.2, the plaint averment was that it belonged to late Kuttikrishnan Nair. They contended that on the death of late Kuttikrishnan Nair on 20.2.1983, the plaint schedule property devolved on the defendants and late Velayudhan Nair, husband of the first plaintiff and the father of plaintiffs 2 and 3, but notwithstanding the demands for partition made directly and through mediators, they have not been given their rightful share. In the plaint, the plaintiffs prayed for partition and separate possession of their 1/5[th] share in the plaint schedule properties. 3. On receipt of summons, the defendants entered appearance and filed a written statement resisting the suit. They contended _inter alia_ that the first plaintiff is not the wife of deceased Velayudhan Nair, that late Velayudhan Nair was a bachelor and that the plaintiffs have no relationship with him. They contended that during his life time, late Kuttikrishnan Nair had given some share to Velayudhan Nair who was in financial difficulties and that after the death of Kuttikrishnan Nair, the defendants became the sole owners of the plaint schedule property. They contended that though deceased Velayudhan Nair had right over the plaint schedule property, those O.P.(C) No.2460 of 2013 4 rights devolved on the defendants on his death. After trial, the suit was dismissed by judgment delivered on 31.1.1992. On appeal filed by the plaintiffs as A.S.No.34 of 1992, the Court of the Subordinate Judge of Sulthan Bathery set aside the decree and judgment of the trial court and remanded the suit for fresh trial and disposal by judgment delivered on 25.3.1994. The trial court was directed to frame an issue as regards the status of the appellants/plaintiffs. The suit was thereafter transferred to the Court of the Munsiff-Magistrate of Sulthan Bathery where it was re-numbered as O.S. No.460 of 2001. After remand, the following issues were framed: - _(a) Whether the first plaintiff is the wife of deceased Velayudhan Nair?_ - _(b) Whether plaintiffs 2 and 3 are the children of deceased Velayudhan Nair?_ - _(c) Whether plaint schedule properties are patible, if so, what is the share of plaintiffs and defendants?_ - _(d) Whether plaintiffs entitled to get mesne profits? (e) Relief and Cost._ 4. After fresh trial, the trial court decreed the suit as per judgment dated 22.8.2006. The trial court held relying on the evidence, oral and documentary available in the case that the first plaintiff is the wife of late Velayudhan Nair who is admittedly the son of late Kuttikrishnan Nair. The trial court placed reliance on the affidavit O.P.(C) No.2460 of 2013 5 dated 8.8.2006 sworn to by the second defendant wherein he had admitted the said fact and the further fact that plaintiffs 2 and 3 are the children of his brother late Velayudhan Nair. Relying on that affidavit and other documentary evidence available in the case, the trial court also held that plaintiffs 2 and 3 are the children of late Velayudhan Nair and the first plaintiff. In view of the admitted fact that the plaint schedule property belonged to late Kuttikrishnan Nair, a preliminary decree for partition was passed. The said decree was affirmed by the Court of the Subordinate Judge of Sulthan Bathery in A.S.No.41 of 2006 by judgment delivered on 29.11.2008 and this Court by judgment delivered on 1.6.2009 in R.S.A.No.358 of 2009. 5. After the preliminary decree attained finality, the plaintiffs filed F.D.I.A.No.583 of 2009 for the passing of a final decree for partition. In the final decree proceedings, an Advocate Commissioner was appointed by order passed on 8.10.2009. He inspected the plaint schedule property with the assistance of a surveyor after notice to both sides on 18.12.2009, 14.1.2010, 25.1.2010 and 15.1.2011 and with the assistance of the Assistant Executive Engineer, PWD Building Division, Sulthan Bathery on 18.11.2010. After inspection, he submitted Ext.P12 report and account dated 31.5.2011. The Advocate O.P.(C) No.2460 of 2013 6 Commissioner has in para 2 of his report stated that though the plaint schedule item No.1 is described as parcel of land 6.20 acres in extent situate in Sy.No.2908/2, on measurement, it was found that the total extent is 6.37 acres. He reported that though in the plaint and the decree, item No.2 is shown to have an extent of 2.33 acres, the actual extent of land is only 2.22 acres. He also reported that item No.2 is situated about 100 metres away from item No.1, that item No.2 was not seen cultivated at the time of inspection, but item No.1 was found cultivated with coffee, pepper, arecanut, coconut, tea, etc. After the Advocate Commissioner filed his report, the petitioners filed Ext.P13 objections dated 18.6.2011 wherein for the first time they raised a contention as per the Patta issued to late Kuttikrishnan Nair under the Wynad Colonisation Scheme Rules, 1969, he was assigned only 2.1718 hectares of land, that the plaint item No.1 is the property thus assigned that in the plaint the extent was wrongly mentioned as 6.20 acres and that instead of identifying and demarcating the land covered by the patta, the Advocate Commissioner measured the properties as per the decree and in that process included within item No.1 of the plaint schedule property, the land situate in Sy.No.2908/3, having an extent of 0.3682 hectares and lying to the west of the lands assigned O.P.(C) No.2460 of 2013 7 to late Kuttikrishnan Nair in WCS 315/1970. They contended that the allotment made by the Commissioner is therefore liable to be set aside. They also filed I.A.No.699 of 2011 to set aside the report and plan submitted by the Advocate Commissioner or to remit the report and plan to the Advocate Commissioner, raising substantially the same contentions as in Ext.P13 objections. The plaintiffs filed a counter affidavit contending that no such plea was raised in the suit, that the defendants had no case in the written statement that late Kuttikrishnan Nair did not possess 6.20 acres of land and therefore they are barred from raising such a plea. They also denied and disputed the exclusive right put forward by the petitioners in respect of the lands situate in Sy.No.2908/3. The trial court after considering the rival contentions, dismissed the application by Ext.P14 order passed on 31.7.2012. Shortly thereafter, the petitioners filed R.P.No.741 of 2012 seeking a review of the preliminary decree for partition passed in the suit accompanied by I.A.No.744 of 2012 to condone the delay of 2149 days in filing the review petition. The principal contention raised in R.P.No.741 of 2012 was that late Kuttikrishnan Nair had right over only 2.1718 hectares (5.37 acres) of land in Sy.No.2908/2, which was assigned to him as per the Wynad Colonisation Scheme Rules and O.P.(C) No.2460 of 2013 8 therefore, the preliminary decree for partition is liable to be suitably modified. In the affidavit filed in support of the application to condone the delay of 2149 days in filing R.P.No.741 of 2012, it was stated that after Ext.P14 order was passed dismissing the application filed by them to remit Ext.P12 report submitted by the Advocate Commissioner, they consulted a senior counsel at Ernakulam who after such consultation pointed out that there is a material error in the preliminary decree for partition as regards the extent of item No.1 of the plaint schedule property. It was however admitted that the defendants had failed to point out the said mistake in their written statement or during the trial. The court below considered the rival contentions and dismissed I.A.No.744 of 2012 by Ext.P16 order passed on 9.4.2013. Consequently, by Ext.P17 order passed on the very same day in I.A No.741 of 2012 seeking a review of the preliminary decree for partition was also dismissed. 6. In this original petition filed under Article 227 of the Constitution of India, defendants 1, 3 and 4 in O.S.No. 460 of 2001 challenge Exts.P16 and P17 orders. The principal contention raised in the original petition is that as the patta issued to late Kuttikrishnan Nair was only in respect of 2.1718 hectares of dry land (item No.1) O.P.(C) No.2460 of 2013 9 and 0.9440 hectares of paddy land (item No.2) the court below ought to have held that the preliminary decree for partition could not have been passed in respect of a larger extent of land. It is contended that as there was no dispute as regards the patta issued in favour of late Kuttikrishnan Nair, the court below ought to have allowed the application for review. With reference to the order of assignment on registry issued in favour of late Kuttikrishnan Nair, a copy of which is produced as Ext.P4, it is contended that the western boundary of item No.1 of the plaint schedule property is shown as lands situate in Sy.No.2908/3 and the total extent is shown as 2.1718 hectares only and that the court below erred in ignoring the said aspects. 7. I heard Sri.S.Easwaran, learned counsel appearing for the petitioners and Sri.A.K.Srinivasan, learned counsel appearing for the respondents. Sri.S.Easwaran, learned counsel appearing for the petitioners contended relying on the decisions of the Apex Court in **Prema v. Nanje Gowda and Others** [2011 (6) SCC 462] and **Ganduri Koteshwaramma and Another v. Chakiri Yanadi and Another** [2011 (9) SCC 788] that by virtue of the preliminary decree passed by the trial court, which was affirmed by the lower appellate court and this Court, the issues decided therein will be deemed to have O.P.(C) No.2460 of 2013 10 become final but as a partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed and that, if the rights of parties undergo a change either by operation of law or otherwise, the court dealing with the final decree proceedings is not only entitled but is duty-bound to take note of such changes and pass appropriate orders. The learned counsel appearing for the petitioners contended relying on Ext.P1 application for assignment stated to have been made by late Kuttikrishnan Nair under the Wynad Colonisation Scheme Rules, 1969, Exts.P2 and P3 endorsements made by the officials concerned and Ext.P4 order of assignment on registry that the plaint schedule properties were assigned on registry to late Kuttikrishnan Nair, that item No.1 has an extent of only 2.1718 hectares and item No.2 has an extent of only 0.9440 hectares and therefore, no land other than the lands covered by the patta issued to late Kuttikrishnan Nair can form the subject matter of the suit and the decree. The learned counsel contended that though late Kuttikrishnan Nair had applied for assignment of 7 acres of land, consisting of 5 acres of dry land and 2 acres of wet land, assignment was granted only for a lesser extent of 6.27 acres, but in the plaint a larger extent of land was included and O.P.(C) No.2460 of 2013 11 that as there was no dispute about the ownership of late Kuttikrishnan Nair over the lands covered by the patta, the court below ought to have gone by the description in the patta instead of the description in the plaint schedule. 8. Per contra, Sri.A.K.Srinivasan, learned counsel appearing for the respondents submitted with particular reference to the second page of Ext.P4 order of assignment on registry that though the order is dated 3.6.1970, the despatch seal shows the year as 1969, that Ext.P4 is suspect and therefore, no reliance can be placed on the documents now produced as Exts.P1 to P5 to enter a finding that late Kuttikrishnan Nair had right over only a lesser extent of land in Sy.No.2908 than the extent mentioned in plaint schedule item No.1. The learned counsel for the respondents also contended that as the preliminary decree has merged with the decree and judgment passed by the lower appellate court in A.S.No.41 of 2006 and by this Court in R.S.A. No.358 of 2009, the application for review was not maintainable in the trial court and therefore for that reason also, the application for review was liable to be dismissed. The learned counsel also contended that even assuming that what is now alleged is factually correct it is a defence which ought to have been taken in the suit and that having O.P.(C) No.2460 of 2013 12 not been done, on the principles of constructive res judicata the petitioners are barred from raising such a plea at this distance of time. 9. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. It is not in dispute that the preliminary decree for partition which was passed after remand on 22.8.2006 was affirmed in appeal by the Court of the Subordinate Judge of Sulthanbathery in A.S.No.41 of 2006. R.S.A.No.358 of 2009 filed in this Court was dismissed after hearing learned counsel on both sides by judgment delivered on 1.6.2009. The preliminary decree and judgment passed by the trial court has thus merged with the appellate decree passed by the Court of the Subordinate Judge of Sulthanbathery and by this Court in R.S.A.No.358 of 2009. In the light of the principles laid down by a Full Bench of this Court in **Kannan v. Narayani** (1980 KLT 9), the application for review was therefore not maintainable in the trial court and was liable to be dismissed on that short ground. Even assuming that R.S.A.No.358 of 2009 was summarily dismissed under rule 11 of Order XL and what was sought was only a correction of a clerical error, the application could have been filed only in the first appellate court and not in the trial court. O.P.(C) No.2460 of 2013 13 That apart, on the merits also I am of the opinion that the petitioners must fail on two grounds. The plaint contained a detailed description of both the items. The extent and boundaries were separately mentioned therein. As regards item No.1 it was specifically mentioned that it was obtained by late Kuttikrishnan Nair under patta No.WCS 315/70 and that it has an extent of 6.20 acres. The petitioners did not for reasons best known to them dispute the said fact. In the decree also the same description was given. It was only after the Advocate Commissioner submitted his report on 31.5.2012 stating that plaint schedule item No.1 which is shown to have an extent of 6.20 acres was found on measurement to have an extent of 6.37 acres and item No.2 which is shown to have an extent of 2.33 acres has an extent of only 2.23 acres, that the plaintiffs came forward with the plea which they have now raised that item No.1 has an extent of only 5.36 acres. Even assuming that it is factually correct it was a plea which was available to the petitioners even before the trial of the suit. For reasons best known to them they did not put forward such a plea. They did not also cause production of the records relating to the grant of patta in favour of late Kuttikrishnan Nair or take steps to produce the patta. They had also no case that the original of the patta is not in their possession. O.P.(C) No.2460 of 2013 14 On the principles of constructive res judicata, the petitioners are therefore estopped from raising the plea which is now sought to be raised namely that item No.1 in the plaint schedule has a lesser extent of 5.37 acres and not 6.20 acres as stated in the plaint. 10. There is also yet another reason why the petitioners are not entitled to succeed. Ext.P4 order which is stated to be a copy of the order of assignment on registry, assigning 2.1718 hectares of land in S.No.2908 and 0.9440 hectares of land in S.No.2886 to late Kuttikrishnan Nair bears the date 3.6.1970. The despatch seal affixed to it (page 19 of the paper book) shows the year as 1969. The assigning authority has affixed his signature on 3.6.1970. The application for assignment, a copy of which is on record, is dated 9.2.1970. It cannot therefore be said that the application along with the accompanying papers was forwarded in 1969. On the face of it Ext.P4 is suspect and no reliance can in my opinion be placed on it. That apart, there are also corrections therein. The correction in the extent of land situated in S.No.2908 is not authenticated. The trial court has after adverting to the corrections in the order of assignment on registry observed in paragraph 7 of Ext.P14 order that the corrections therein are not authenticated. The trial court had also held O.P.(C) No.2460 of 2013 15 in that order that the sub division shown in Ext.P3 survey sketch cannot also be relied on. The petitioners have not for reasons best known to them challenged Ext.P14 order whereby the trial court had upheld the report and plan submitted by the Advocate Commissioner after rejecting the very same contentions which were raised in the petition for review. The suit was instituted in the year 1991. For nearly 22 years the petitioners did not have a case that their predecessor-ininterest was entitled only to a lesser extent of land than the extent mentioned in the plaint schedule. The application for review was in my opinion rightly dismissed by the trial court. I accordingly hold that there is no merit in the instant original petition. It fails and is dismissed. No costs. **Sd/P.N.RAVINDRAN JUDGE** ## **scl/vpv**