OP(C).894/21

_**OP(C).894/21**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944** **OP(C) NO. 894 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OS 372/1992 OF SUB COURT, PERUMBAVOOR PETITIONER/S:** 1 BABU. K.THOMAS AGED 54 YEARS S/O LATE THOMAS, KULAPPURAM HOUSE, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, PIN-683541. 2 ROY K.THOMAS, AGED 49 YEARS S/O LATE THOMAS, KULAPPURAM HOUSE, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, PIN-683541. 3 BIJU.K.THOMAS. AGED 49 YEARS S/O LATE THOMAS, KULAPPURAM HOUSE, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, PIN-683541. 4 BINDU.K.THOMAS. AGED 44 YEARS D/O LATE THOMAS, KULAPPURAM HOUSE, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, PIN-683541. 5 BEENA BABY @ TEENA BABY AGED 51 YEARS D/O LATE THOMAS, MAMBAKKATT VEETTIL, AIRAPURAM KARA, AIRAPURAM P.O, KUNNATHUNADU TALUK, PIN683541. _**OP(C).894/21**_ 2 6 ANNAMMA AGED 75 YEARS W/O LATE THOMAS, KULAPPURAM HOUSE, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, PIN-683541. BY ADVS. S.KARTHIKA SMT.PREETHY KARUNAKARAN SMT.ANJANA M VADHYAR ## **RESPONDENT/S:** 1 MATHAI AGED 56 YEARS S/O YACOB, MUKKANAMCHERY HOUSE, IRINGOLE KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PIN-683542. 2 SALY AGED 60 YEARS D/O YACOB, MUKKANAMCHERY HOUSE, IRINGOLE KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PIN-683542. 3 ANNIE AGED 58 YEARS D/O YACOB, MUKKANAMCHERY HOUSE, IRINGOLE KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PIN-683542. 4 EALIYAMMA AGED 84 YEARS W/O YACOB, MUKKANAMCHERY HOUSE, IRINGOLE KARA, _**OP(C).894/21**_ 3 PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PIN-683542. 5 BABY AGED 55 YEARS S/O SARAMMA, KUNNATHU HOUSE, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, PIN-683541. 6 MARY AGED 61 YEARS D/O SARAMMA, KUNNATHU HOUSE, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, PIN-683541. BY ADVS. VARGHESE C.KURIAKOSE SUSANTH SHAJI THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22.10.2021, THE COURT ON 30.3.3022 DELIVERED THE FOLLOWING: _**OP(C).894/21**_ 4 ## **V.G.ARUN, J. ----------------------------------------------O.P(C).No. 894 of 2021 ----------------------------------------------Dated this the 30[th] day of March, 2022** ## **JUDGMENT** The petitioners are the legal heirs of deceased Thomas, who had filed O.S.No.372 of 1992 before the Sub Court, North Paravur for a decree of partition of his half share in the plaint schedule property, on the strength of Gift Deed No.6301 of 1983. Yakoob, the predecessor of respondents 1 to 4, had filed O.S.No.28 of 1994 before the Sub Court, North Paravur for declaring the Gift Deed as void and for consequential reliefs. The suits were tried together and by common judmgent dated 29.11.1995, preliminary decree was passed in the suit for partition and the suit for declaration, dismissed. The defendants in the partition suit challenged the judgment and decree up to the Supreme Court, but without success. The preliminary decree for partition attained finality on dismissal of the Special Leave Petition by order dated 6.11.2017. 2. Due to the long pendency of the case, the original records in the court was getting faded and damaged. Therefore, on 22.11.2019, the petitioners filed an application before the Additional Sub Court, North Paravur seeking return of the documents and the application was allowed. 3. In the meanwhile, a new Sub Court had been established at _**OP(C).894/21**_ 5 Perumbavoor and jurisdiction over cases pertaining to Kunnathunadu Taluk was made over to that court. Therefore, the petitioners filed final decree application (I.A.No.411 of 2019) in O.S.No.372 of 1992 before the newly established Sub Court at Perumbavoor and by order dated 28.1.2020, the learned Sub Judge appointed an Advocate Commissioner for effecting partition. At that stage, the respondents filed I.A.No.2 of 2020 raising the question of maintainability of the final decree application before the Sub Court, Perumbavoor, since the preliminary decree had been passed by the Sub Court, North Paravur. By Exhibit P5 order, the court below dismissed the final decree application. For the application was found to be maintainable. The application was found to be not maintainable in the light of the decisions in _**Kunhalan Kutty v. Pathumma and Others**_ [1970 KHC 340] and _**Pathumma v. Kunhalan Kutty**_ [AIR 1981 SC 1683]. 4. Learned Counsel for the petitioner contended that, with establishment of the Sub Court at Perumbavoor, the jurisdiction to decide cases arising out of Kunnathunadu Taluk got vested with the newly established court. Further, all pending files pertaining to Kunnathunadu Taluk were transferred from the Sub Court, Paravur to the Sub Court, Perumbavoor. As per Section 150 CPC, when the business of any court is transferred to another court, the court to which the business is so transferred will have the same powers and can perform the same duties as _**OP(C).894/21**_ 6 the court from which the business is transferred. As per Section 9 of the Civil Courts Act, the local limits of the jurisdiction of the Subordinate Judge's Court is fixed by the Government in consultation with the High Court. The local limits of Sub Court, Perumbavoor having thus been fixed by including Kunnathunadu Taluk, the Sub Court, Paravur got denuded of jurisdiction over matters pertaining to Kunnathunadu Taluk. As per Section 16 of CPC, suits are to be instituted before the court within which the subject matter is situated. Therefore, the final decree in a suit pertaining to immovable property has to be filed before the court within the territorial limits of which the property is situated. It is contended that the facts in _**Kunhalan Kutty**_ (supra) is different and the dictum of that decision cannot be applied to the case at hand. Moreover, while affirming that decision, the Apex Court in _**Pathuma,**_ did not decide on the correctness of the finding of the High Court that a subsequently established court had no territorial jurisdiction to take cognizance of an application for passing final decree. It is hence contended that the impugned order of the Sub Court, Perumbavoor, refusing to entertain the final decree application filed by the petitioners, is patently illegal and liable to be interfered with. 5. Learned Counsel for the respondent supported the findings in the impugned order by contending that, mere adjustment of territorial limits will not confer jurisdiction on a court. Section 150 of CPC will have application only if the business of the Sub Court, North Paravur was _**OP(C).894/21**_ 7 transferred to the Sub Court, Perumbavoor. Mere transfer of pending files from one court to another does not amount to transfer of business of the court. These aspects were considered in detail in _**Kunhalan Kutty**_ and that decision having attained finality, it will be improper for this Court to hold otherwise. 6. To resolve the issue involved, the Registry was directed to make available the records pertaining to the establishment of the Sub Court at Perumbavoor and the Official Memorandums, if any, transferring the business of the Sub Court, North Paravur to the Sub Court, Perumbavoor. In spite of best efforts, the Registry was able to procure only a copy of an Official Memorandum dated 17.3.2007, extracted hereunder for easy reference; “ _The District Judge, Ernakulam is informed that the date of inauguration of the Sub Court, Perumbavoor is fixed on 31.3.2007. He is directed to transfer all cases arising out of the Kunnathunadu Taluk, now in the files of the Sub Court at N.Paravoor and Muvattupuzha to the new Sub Court at Perumbavoor giving due notice to the counsel. He is also permitted to depute staff from the Sub Court, N.Paravur to the new Court.”_ From a reading of the above O.M., it can be seen that no mention is made about the transfer of business from the Sub Court, North Paravur to the Sub Court, Perumbavoor. 7. Section 5(1) of the Kerala Civil Courts Act, 1957 dealing with the _**OP(C).894/21**_ 8 ## establishment of the Subordinate Judge's Court reads as under; “ _5(1):The Government may, in consultation with the High Court establish in each District such number of Subordinate Judge's Court and Munsiff Courts as they deem necessary. Section 9 confers on the Government the power fixed and varied the local limits of the jurisdiction of any subordinate judges Court in consultation with the High Court. Apparently, the establishment of the Subordinate Judges Court at Muvattupuzha and fixing of local limits of the newly established court would have been under Sections 5 and 9 of the Civil Courts Act._ 8. The short question is whether that will amount to transfer of business from the Sub Court, North Paravur to the Sub Court, Perumbavoor. This question was elaborately considered in _**Kunhalan Kutty**_ with reference to Section 150 of CPC. The relevant portion of the judgment is extracted hereunder for convenience; para 11 and 12 9. Of course, as contended by the learned Counsel for the petitioner, in _**Kunhalan Kutty**_ , the question of territorial jurisdiction was considered in the appeal filed against the final decree rendered by the transferee court. But, the situation was similar or even identical, inasmuch as the preliminary decree was passed by the Munsiff's Court, Parappanangadi and the final decree application filed before the subsequently established Munsiff's Court at Manjeri. After considering the decisions of other High Courts, the learned Single Judge categorically held that, by the mere _**OP(C).894/21**_ 9 establishment of a new Munsiff's Court at Manjeri, the business of the Munsiff's Court, Parappanangadi was not transferred. Here the exact notification by which the Sub Court, Perumbavoor was established, is not available. The available O.M does not give any indication regarding transfer of business from the Sub Court, North Paravur to Sub court, Perumbavoor. In the absence of such material, it will be inappropriate for this Court to hold that the business of the Sub Court, North Paravur, with respect to the cases pertaining to Kunnathunad Taluk, stood transferred to newly established court at Perumbavoor. In this regard, it is also pertinent to note that, even when the final decree application was filed before the Sub Court, Perumbavoor, the original suit was pending before the Sub Court, North Paravur itself. 10. In _**Kunhalan Kutty,**_ the learned Single Judge had referred to Order 20 Rule 18 CPC, providing for passing of preliminary decree to hold that the effect of filing the application for final decree will amount to a request for continuing the suit. It was held that the jurisdiction of the court to pass final decree will depend upon the pendency of the suit and not whether the court has territorial jurisdiction over the subject matter of the application for passing the final decree. 11. Being in respectful agreement with the legal position laid down in _**Kunhalan Kutty,**_ I find that the Sub Judge, Perumbavoor was correct in rejecting the application for passing of final decree. _**OP(C).894/21**_ 10 For the aforementioned reasons, the original petition is dismissed, leaving open the petitioner's remedy of filing the application for passing of final decree before the Sub Court, North Paravur. **Sd/-** **V.G.ARUN, JUDGE** _vgs_ _**OP(C).894/21**_ 11 ## **APPENDIX OF OP(C) 894/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DECREE DATED 29/11/1995 IN OS NO. 372/1992 ON THE FILE OF THE ADDITIONAL SUB COURT, NORTH PARAVUR. EXHIBIT P2 TRUE COPY OF I.A.NO.411/2019 IN OS NO372/1992 ON THE FILE OF SUB COURT, PERUMBAVOOR. EXHIBIT P3 TRUE COPY OF I.A.NO.2/2020 IN I.A.NO.41/2019 IN OS NO.372/1992 ON THE FILE OF SUB COURT, PERUMBAVOOR. EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED 13.03.2020 FILED IN I.A.NO.2/2020 IN I.A.NO.411/2019 IN OS NO.372/92 ON THE FILE OF SUB COURT, PERUMBAVOOR. EXHIBIT P5 TRUE COPY OF THE COMMON ORDER DATED 18/12/2020 IN I.A.NO. 2/2020 AND I.A.411/2019 IN OS NO.372/92 OF THE SUB COURT, PERUMBAVOOR.