P.R. Balathilakan v. P.R. Ravithilac and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, ``` ``` 1944 ``` ``` CRP NO. 944 OF 2018 ``` ``` AGAINST THE ORDER in E.P.NO.79/2017 IN OS NO.110/1985 OF THE ADDITIONAL SUB COURT,KOTTAYAM ``` ## **`REVISION PETITIONER/DECREE HOLDER/ DEFENDANT NO.2:`** ``` P.R.BALATHILAKAN AGED 77 YEARS S/O. RAGHAVAN, REJEEV MANDHIRAM, MEEANDU KARA, VETTIKKUNNIVILA VILALGE, CHATHANNUR TALUK, CHATHANNUR P.O., KOLLAM DISTRICT, KERALA STATE 681 572 BY ADVS. P.MOHANKUMAR SMT.CELINE JOSEPH ``` ## **`RESPONDENTS/JUDGMENT DEBTOR:`** ``` 1P.R.RAVITHILAC PLAKKATTIL HOUSE (MERRY BANGLOW), ERAVIMANGALAM, MAJOOR VAIKOM, KOTTAYAM 686 141 2BIJU, MATTAPPALLY HOUSE, ERAVIMANGALAM, MANJOOR, VAIKOM KOTTAYAM 686 141 ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRP NO. 944 OF 2018 ``` **==> picture [20 x 22] intentionally omitted <==** ## **ORDER** The revision petitioner is defendant No.2 in O.S.No.110/1985 on the file of the Additional Subordinate Judge’s Court, Kottayam. The suit was for partition. The preliminary decree was passed on 10.02.1986 directing partition of plaint ‘A’ schedule property in the suit into seven equal shares and declaring that the plaintiff therein and defendant No.6 are entitled to 1/7 shares each and defendants 1 to 5 are jointly entitled to the balance 5/7 shares. 2. Pursuant to the preliminary decree, the plaintiff filed final decree application as I.A.3329(a) of 2004. A final decree was passed on 13.09.1996. Thereafter, at the instance of the revision petitioner, the final decree was set aside and the application was taken up for consideration afresh. During the course of proceedings, the plaintiff filed application stating that she along with the respondents therein and revision petitioner measured ``` CRP NO. 944 OF 2018 ``` **==> picture [20 x 22] intentionally omitted <==** the property and divided the same into seven parts by mutual consent and a deed of partition was executed on 05.04.2004. The revision petitioner was not a party to the partition deed as he was living away in Delhi. However, he was also agreeable for a division of the properties as per the partition deed. A final decree was passed in the proceedings on 30.03.2005 based on the partition deed. A plan regarding the allotment of shares to the different sharers was also appended to the decree. 3. The revision petitioner filed E.P.No.79/2017 before the Court below for delivery and separate possession of the share allotted to him as per the final decree. 4. The Court below appointed an Advocate Commissioner and Surveyor to measure out and locate the property. The Commissioner filed a report stating that the properties could not be identified. The Court below dismissed the execution petition holding that the decree is unexecutable for the following reasons:- (a) an ``` CRP NO. 944 OF 2018 ``` **==> picture [20 x 22] intentionally omitted <==** elaborate enquiry on the identity of the property is not contemplated in the execution proceedings; (b) the persons now in possession of the property are not parties to the proceedings; (c) the power of the Executing Court cannot be extended to have an identity of the property so long as the persons now in possession of the property are not parties to the proceedings. The above said order is under challenge in this Revision Petition. 5. Notice of the revision petition was served on the respondents. They failed to appear. 6. Heard Shri. P.T. Mohankumar, the learned counsel appearing for the revision petitioner. The preliminary decree in this case was passed as early as on 10.02.1986 directing partition of the plaint ‘A’ schedule property to the different sharers including the revision petitioner. The final decree sought to be executed was passed on 30.03.2005 based on a consensus. During the course of final decree proceedings, the parties had executed a partition deed dated 05.06.2004 [Ext.A2] by ``` CRP NO. 944 OF 2018 ``` ..5.. , which they divided the property into seven parts. A plan was also produced along with the partition deed. The final decree passed based on the partition deed reads thus:- “The plaint schedule properties are to be divided into seven equal parts and the items shown as F schedule in Ext.A2 partition deed is allotted to the plaintiff (petitioner), the item of property mentioned as A scheduled in Ext.A2 partition deed is allotted to the 2[nd] defendant (2[nd] respondent), the item of property mentioned as D schedule in Ext.A2 partition deed is allotted to R3, the item mentioned as C schedule in Ext.A2 partition deed is allotted to R4, the item of property mentioned as F schedule in Ext.A2 partition deed is allotted to R5, the item of property mentioned as E schedule in Ext.A2 partition deed is allotted to R1 and the item of property mentioned as F schedule to Ext.A2 partition deed is allotted to R6. R7(D7) is dead, and plaintiff and defendants 1 to 6, that is, R1 to R6 are his only legal heirs. Hence final decree is passed as per the allotment mentioned in Ext.A2 partition deed. Ext.A1 plan regarding the allotment of the properties is to be appended to the final decree. The parties are entitled to get their separate shares as allotted above.” 7. The revision petitioner filed E.P.No.79/2017 before the court below for execution of the final decree. A commissioner was appointed by the court below to locate, identify and demarcate plaint ‘A’ schedule property in ``` CRP NO. 944 OF 2018 ``` ..6.. , Ext.A2 partition deed with reference to Ext.A1 plan. The Commissioner concluded thus:- “പട്ടിക വസ്തുവിലെ നിലവിലുള്ള അതിർ ലകഷങ്ങൾ വചച വിധി ഉടമസ്ഥന്റെ കൈവശം Q, 1, B, 3, 4, 5, A, D, 2, P, Q എന്ന വസ്തുഭാഗം നിലവിലുള്ളതും ആയതിൽപ്പെട്ട D, 2, P, D എന്ന വസ്തുഭാഗം (0.0043 Hr) Exhibit A1 പ്ലാൻ പ്രകാരം 1-ആം വിധി കടക്കാരന്റെ ഉടമസ്ഥതയിൽ ഉള്ളതും എന്നാൽ നിലവിൽ വിധി ഉടമസ്ഥന്റെ കൈവശത്തിൽ ഇരുനന വരുന്നതുമാകുന്നു. Exhibit A1 പ്ലാനിലെ ഓഫ്സെററ മെഷര്മെനറ പ്രകാരം അളന്നതിൽ വചച അന്യകൈവശത്തിലും, ഉടമസ്ഥതയിലുമുള്ള വസ്തുക്കൾ ഒഴിചച ഇപ്പോൾ വിധി ഉടമഥൻ കൈവശം തെക്കുവശം 3.6 മീറ്റർ വീതിയുള്ള വഴിയുൾപ്പെടെ ഇതതോടടൊപ്പമുള്ള പ്ലാനിൽ വിവരിച്ചിട്ടുള്ള Q, 1, B, 3, 4, 5, A, D, P, Q ൽ കിടന്നുവരുന്ന 25.920 സെനറ വസ്തുവുള്ളതും തെക്കുഭാഗം വഴി ഉൾപ്പെടാതെ 23.128 സെനറ വസ്തുമാത്രം കൈവശത്തിൽ കാണപ്പെടുന്നതുമാകുന്നു. പട്ടിക വസ്തു ഉൾപ്പെടുന്ന Exhbt A2 ഭാഗപത്രത്തിലെ മററ വസ്തുക്കൾ മുഴുവനായി അളന്നാൽ മാത്രമേ വിധി ഉടമസ്ഥൻ വക ബാക്കി വസ്തുക്കൾ ആരുടെ കൈവശത്തിലാണെനന തിട്ടപ്പെടുത്താൻ സാധിക്ുയുള്ളു.” 8. Based on the report of the Commissioner, the Court below passed the impugned order holding that the decree is found to be unexecutable. 9. The learned counsel for the revision petitioner contended that the approach of the court below is against the settled principles of law. The learned counsel contended that the law empowers the Execution Court to execute the decree even by venturing to take steps to identify the property. Relying on Section 51(e) of Code of ``` CRP NO. 944 OF 2018 ``` **==> picture [20 x 21] intentionally omitted <==** Civil Procedure, the learned counsel contended that the Execution Court may, on the application of the decree holder, order execution of the decree in such manner as the nature of the relief granted may require. The learned counsel relied on **Rahul S. Shah v. Jinendra Kumar Gandhi and others** [2021 KHC 6252], **Kurian v. Thulasidas** [2003 KHC 579] and **Prasannakumari C. v. C. Sudhakaran and another** [2012(1) KHC 594] to substantiate his contentions. In **Kurian v. Thulasidas** (Supra) following **Dr. Madhukar Trimbak Gore v. Vasant Ramkrishna Kollhatkar** [AIR 1983 Bombay 277] and **Rahim Bux v. Mohammad Shafi** [AIR 1971 All.16] this Court held that when in execution, a question arises as to the identity of the property of which possession has to be delivered to the decree holder, obviously such a question would relate to the execution of the decree. This Court in **Prasannakumari C v. C. Sudhakaran and another** [Supra] following **Kurian v. Thulasidas** (Supra), while dealing with a decree for ``` CRP NO. 944 OF 2018 ``` ..8.. , fixation of boundary, held that if the decree can be executed by fixing the boundary after ascertaining the same as per a Survey Commission, the Executing Court is bound to execute the decree, after following such a procedure. It was further held that the Court cannot reject the prayer for issuing a commission on the ground that the same should have been done in the trial stage. 10. In **Rahul S. Shah v. Jinendra Kumar Gandhi and others** (Supra) the Apex Court held that for deciding a question of fact, the execution Court may resort to methods like appointment of Commissioner etc. 11. The learned counsel for the revision petitioner contended that, the Court below has not assigned sound reasons for holding that the decree is unexecutable. It is nobody’s case that the decree is void. The learned counsel for the revision petitioner submitted that as Ext.A2 partition deed is the basis of allotment of the shares in the final decree, measurement of the property with the aid of Ext.A2 partition deed is highly required. ``` CRP NO. 944 OF 2018 ``` **==> picture [20 x 22] intentionally omitted <==** The learned counsel for the revision petitioner further submitted that the court below ought to have granted a further opportunity to the revision petitioner to take steps to identify the property as per the final decree. It is agitated that a proper enquiry as to the question with regard to the identity of property has not been done in the court below. Determination of question as to the identity of property sought to be delivered to the revision petitioner may not result in traversing beyond the decree or causing any prejudice to any of the parties or delivering property not included in the partition. 12. It appears form the report of the Commissioner that only less extent of land than sought to be delivered is available on the land. If any property which is not partible is included in the partition deed and any of the allottees sustains loss of any of the properties allotted to him by reason of the fact that they were not partible or the properties allotted to any sharer are lost to him by reason of a claim of a superior title holder, the other ``` CRP NO. 944 OF 2018 ``` **==> picture [26 x 22] intentionally omitted <==** parties are bound to compensate such allottees, who suffered loss and to that extent the partition can be reopened. 13. Having regard to the facts and circumstances of the case, this Court is of the view that the revision petitioner shall be given a further opportunity to take steps to determine the identity of the property involved. Resultantly, the Revision Petition is allowed. Order dated 27.10.2018 in E.P.No.79/2017 in O.S.No.110/1985 of the Additional Sub Court, Kottayam is set aside. The matter is remitted to the court below for consideration afresh untrammelled by any of the observations made above. Sd/- **K. BABU, JUDGE** kkj