OP(C).No.3609/2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** ## **OP(C).No. 3609 of 2017** **AGAINST THE ORDER/JUDGMENT IN OS 846/2010 of PRINCIPAL SUB COURT,ERNAKULAM** ## **PETITIONER/REVIEW PETITIONER/PLAINTIFF:** **C.P.PAUL** **AGED 69 YEARS,S/O.K.P.POULOSE, PAULSON PARK HOTEL,** **COCHIN-682016.** **BY ADVS. SRI.R.SUDHIR SRI.SIVARAM** ## **RESPONDENTS/DEFENDANTS:** - **1 MARY VARKEY W/O.VARKEY,AGED 65 YEARS,SANKARAMANGALAM HOUSE,THIRUVALLA,NOW RESIDING AT JASHEELA PARK,9/579,FEROOK,KOZHIKODE-673631.** - **2 VALSA JACOB W/O.JACOB, AGED 60 YEARS,JASHEELA PARK, 0/579, FEROOK, KOZHIKODE-673631.** - **3 ANAND GOERGE, S/O.LATE ANNIE PAUL, AGED 42 YEARS, AYANATTU HOUSE,CHELAD.P.O,PIN-686681. KOTHAMANGALAM, NOW RESIDING AT 27A, HAWKINS STREET, RUTHERFORD, NSW, 2320, AUSTRALIA REP BY POWER OF ATTORNEY DR.GEORGE PAUL** - **4 ANOOP GEORGE S/O.LATE ANNIE PAUL,AGED 30 YEARS,AYANATTU HOUSE,CHELAD.P.O,PIN-686681,KOTHAMANGALAM,NOW RESIDING AT 66 FOX PLACE,BERGENFIELD,NEW JERSEY07621,USA,REP.BY POWER OF ATTORNEY DR.GEORGE PAUL.** - **5 DR.GEORGE PAUL (HUSBAND OF LATE ANNIE PAUL) S/O PAULOSE,AGED 60 YEARS,AYANATTU HOUSE,BOOTHATHANKETTU.P.O,KEERAMPARA VILLAGE,KOTHAMANGALAM TALUK,ERNAKULAM DIST.-686681. BY ADVS.** - **SRI.JASON VENGATTU JOHNY SRI.PRAMOD KOCHUTHOMMEN.E. SRI.V.VARUN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(C).No.3609/2017 ## **JUDGMENT** The above OP is filed challenging the order in R.P No.13/2017 and IA No.2957 of 2017 in IA No.1898 of 2012 in OS No.846/2010 of the Subordinate Judge's Court Ernakulam. The review petition is filed against a final decree order. 2. The main contention urged by the petitioner is that he filed a suit for partition and a compromise decree had been passed by which he was allotted ½ share over the plaint-schedule property and defendants 1, 2 and 3 were allotted 1/6[th] share each. During the final decree proceedings, an Advocate Commissioner was deputed. He prepared a plan with the help of a Taluk Surveyor. Ext.P3 is the survey plan and the property had been measured and demarcated in metes and bounds. The property was divided into 4 items A, B, C, D and E. A, B and C schedule items were to be allotted to defendants 1 to 3 and the D schedule to the plaintiff. E schedule was considered as a common pathway. The defendants sought for demarcation of the property and for a separate allotment and therefore the Court deputed the Amin to demarcate the said property and to deliver the same in favour of defendants and accordingly defendants got delivery of A, B and C schedule properties. Later on, the plaintiff sought for delivery of his item of property. At that time, the Advocate Commissioner along with the Village Officer has measured the property. Ext.P8 is the report. It was noticed that the side 3 ## O.P.(C).No.3609/2017 measurements in the D plot on the southern side as per the plan is 24.3 and the western side is 25.9. When those measurements were taken, it was noticed that a portion of the building of the hotel and portion of the chimney of the main building is found to be included in the western portion of D plot. Apparently, when the Advocate Commissioner visited the property along with the Amin and Village Officer and measurements of D plot was taken, it was found that there is some discrepancy and accordingly D plot could not be given delivery. It is at that stage petitioner sought for a review _inter alia_ contending that though he was entitled for ½ share of the property and the Advocate Commissioner had specifically stated in Ext.P3 that his entitlement was for 2.73 Ares, as matters stand now, a portion of the said area falls outside the boundary and is in a different survey number. 3. The Court below found that the review petition is not maintainable as there is no error apparent on the face of record. 4. Learned counsel for the petitioner would however contend that when the Advocate Commissioner's report clearly indicates that the petitioner is entitled for 2.73 Ares of land, he has a right to get the said portion itself and there cannot be any difference in the land area to be allotted. If on measurement, it is found to have only a lesser area, the entire property has to be re-measured and the allotment has to be made including A, B and C schedule as well. If at all there is any change in the total area of land, all of them have to sacrifice and the allotment has to 4 O.P.(C).No.3609/2017 be made accordingly. 5. On the other hand, learned counsel appearing for the respondents submitted that their properties had been measured and allotted long back and delivery was effected and at this stage, it shall not be open for the petitioner to contend that the entire property has to be remeasured. That apart, when the Advocate Commissioner had filed a report along with the plan long back and no objection is seen raised and therefore the Court below was justified in dismissing the review petition. 6. The Advocate Commissioner's report forms part of the final decree. The report is Ext.P2 and the plan is produced as Ext.P3. It was observed that when the property was measured and demarcated which is within the compound wall, in the possession of plaintiff and defendants, it is revealed that the property is situated in Sy.No.591/2, 7 and 8. The extent of property situated in Sy.No.591/7 is 14.676 cents, in Sy.No.591/8 is 0.370 cents and in Sy.No.591/2 is 1.013 cents. For effecting partition the property having an extent of 2.73 Ares i.e., 6.745 cents is allotted to the plaintiff and plots A having an extent of 2.248 cents is allotted to the defendants 3 to 5, plots B and C having similar extent have been allotted to defendants 2 and 1 respectively. A pathway has also been set up which is shown as E-schedule. In the plan produced as Ext.P3, A, B, C and D plots are separately shown which comes under Sy.No.591/7. A pathway is also demarcated having an extent of 1.04 Ares which comes under Sy.No.591/7/8/2. 5 O.P.(C).No.3609/2017 7. The contention urged by the petitioner is that when the property was measured at the time of delivery, a portion of the property seems to lie on the south-western boundary. From Ext.P3 plan itself the existence of a compound wall can be seen on the eastern side. A triangular portion can also be seen in the south-eastern part. Even at the relevant time when this plan was available it was rather clear that a portion of the property namely the triangular portion on the southeastern side was beyond the compound wall. In Ext.P6, the report filed by the Village Officer before the court, it is stated that while demarcating the property, south-western boundary of the property to an extent of 1.25 metres falls within a property on the western side, which belongs to the petitioner himself. In the report of the Amin he states that when 'D' plot was measured, it was noticed that the measurement on the southwestern portion encroaches into the next plot for about 1.25 meters and coming under Sy.No.591/9 and therefore there is a reduction in 'D' plot. Since the petitioner objected to the same, delivery could not be confirmed. 8. There is no dispute about the fact that when measurements are taken, as the matter stands now, the 'D' plot encroaches into the property on the western side, which comes under Sy.No.591/9. What exactly is the extent is not known. According to the learned counsel it is about 1 cent. The report would only indicate about the encroachment of 1.25 metres. Two factors are relevant. One is that, even at the time 6 ## O.P.(C).No.3609/2017 when Ext.P3 plan was prepared, a portion of the property coming under Sy.No.591/7 and allotted as 'D' plot was beyond a boundary wall as seen from the plan, which is the triangular portion seen on the south-eastern side of the plan. But when the measurement is now taken, the report indicates that to have the exact 2.73 ares, the property should enter into Sy.No.591/9. In fact the plaint schedule property does not have any property in Sy.No.591/9. Therefore, the reduction might be on account of the fact that the relevance of the triangular portion as seen in southeastern side of the plan was not taken note of by any of the persons concerned and no objection was raised in that regard at the appropriate time. 9. Under such circumstances, when already plots A, B and C had been allotted, demarcated and delivered, at a later stage, it may not be possible to remeasure the entire property nullifying the previous proceedings. 10. Therefore, I don't think that any useful purpose will be served in again measuring the property and making a fresh allotment. This is an instance where, from Ext.P3 plan itself it is clear that a portion of the property coming under item 'D' was beyond the boundary wall, the petitioner ought to have objected to the same. That apart, Ext.P3 itself is a survey plan and it is on that basis that a subsequent measurement had been effected. Probably, the triangular portion which is beyond the boundary would have been the reason for the mistake in the 7 ## O.P.(C).No.3609/2017 measurement. Taking into account all these facts, I don't think it necessary for this Court to interfere at this stage of the proceedings. 11. The learned counsel for the petitioner had also placed before this Court the judgment of the Apex Court in **Board of Control For Cricket in India (BCCI) & Another v. Netaji Cricket Club and Others** ((2005) 4 SCC 741). It is trite that when there is miscarriage of justice the court has to interfere. But each case depends upon it own facts. In this case, this is an instance where there was sufficient opportunity for the petitioner to object to the Commissioner's report and plan which by itself indicated that there would be a shortage of the property for the petitioner on account of the situation aforesaid. No action was taken by the petitioner to challenge the same. Now it is highly belated, in so far as allotment had already been made by dividing the property into A, B, C and D plots. Under such circumstances, it may not be possible to rework the entire final decree proceedings. No grounds are made out for interference. The original petition is dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** True copy Rp/kp ## **JUDGE** P.A. To Judge. 8 O.P.(C).No.3609/2017 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PRELIMINARY DECREE DATED 30.11.2011 ALONG WITH THE MEMORANDUM OF AGREEMENT** **EXHIBIT P2 TRUE COPY OF THE COMMISSION REPORT SUBMITTED BY THE COMMISSIONER** **EXHIBIT P3 TRUE COPY OF THE PLAN SUBMITTED BY THE COMMISSIONER** **EXHIBIT P4 TRUE COPY OF THE FINAL DECREE DATED 27.10.2015 PASSED BY THE SUB JUDGE,ERNAKULAM EXHIBIT P5 TRUE COPY OF THE DELIVERY REPORT DATED 04.04.2017 SUBMITTED BY THE AMIN EXHIBIT P6 TRUE COPY OF THE REPORT FILED BY THE VILLAGE OFFICER,ERNAKULAM DATED 12.04.2017 EXHIBIT P7 TRUE COPY OF THE UNEXECUTED DELIVERY REPORT FILED BY THE AMIN IN RESPECT OF 'D'PLOT IN THE PLAN EXHIBIT P8 TRUE COPY OF THE REPORT DATED 07.04.2017 FILED BY THE ADVOCATE COMMISSIONER EXHIBIT P9 TRUE COPY OF THE MEMORANDUM OF REVIEW PETITION FILED BY THE PETITIONER EXHIBIT P10 TRUE COPY OF THE OBJECTIONS TO THE REVIEW PETITION FILED BY THE RESPONDENTS EXHIBIT P11 TRUE COPY OF THE ORDER DATED 16.10.2017 PASSED BY THE SUBORDINATE JUDGE,ERNAKULAM.** **RESPONDENTS' EXHIBITS: NIL.**