P.V. Cherian v. T. Churuly Raj and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 23RD DAY OF SEPTEMBER 2014/1ST ASWINA, 1936** ## **WP(C).No. 25150 of 2010 (O)** **----------------------------** **AGAINST THE ORDER/JUDGMENT IN OS 44/1998 of SUB COURT,KATTAPPANA E.A. No.55/2006 IN E.P.NO.26/2001 OF SUB COURT, KATTAPPANA.** **PETITIONER(S):** **--------------------------** ## **P.V.CHERIAN, S/O VARGHESE,** **PULLUKETT HOUSE, VAKATHANAM, CHANGANASSERI KOTTAYAM.** ## **BY ADVS.SRI.M.NARENDRA KUMAR SMT.LAYA SIMON** ## **RESPONDENT(S):** - **----------------------------** **1. T.CHURULY RAJ, S/O THIRUMALAISAMY, MAKANAKRISHNAN PATTY, THEVARAM, UTHAMAPALAYAM TALUK PIN-671 319.** **2. PARVATHY AMMAL, W/O.T.CHURULY, MAKANAKRISHNAN PATTY, THEVARAM, UTHAMAPALAYAM TALUK PIN-671 319.** **3. PENNAMMA, W/O.NAPOLEAN, RESIDING AT PALAM, POOPPARA KARA, POOPPARA VILLAGE PIN-685 619.** **4. NAPOLEAN, S/O.SREENIVASAN, RESIDING AT PALAM, POOPPARA KARA, POOPPARA VILLAGE PIN-685 619.** **R4 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.) R4 BY ADV. SRI.A.S.SAJUSH PAUL** **R4 BY ADV. SRI.THOMAS JAMES MUNDACKAL R4 BY ADV. SRI.BOBBY THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) NO.25150/2010 ## APPENDIX PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF APPLICATION DATED 09.10.2006 FILED BY THE PETITIONER. EXT.P2 TRUE COPY OF CLAIM STATEMENT FILED IN L.A.R. 11/2007 OF THE SUB COURT,THRISSUR. EXT.P3 TRUE COPY OF OBJECTION FILED BY 1ST AND 3RD RESPONDENTS EXT.P4 TRUE COPY OF OBJECTION FILED BY 2ND RESPONDENTS EXT.P5 TRUE COPY OF ORDER IN LAR 11/97 OF THE II ADDL. SUB COURT,THRIOSSUR. RESPONDANTS'S EXHIBITS NIL [TRUE COPY] ## **B.KEMAL PASHA, J.** ................................................................ W.P.(C) No.25150 of 2010 ............................................................... Dated this the 23[rd] day of September, 2014 ## **J U D G M E N T** Challenging order dated 31.03.2010 passed by the Subordinate Judge's Court, Kattappana in E.A.No.55/06 in E.P.No.26/2001, the petitioner in the E.A., who is the decree holder, has come up with this present writ petition. 2. The decree is one for specific performance of a contract for sale. Originally, through the plaint in O.S.44/98 of the Subordinate Judge's Court, Kattappana, the plaintiff had sought for specific performance of the contract for sale in respect of 4.65 acres of property in Sy.No.28/1 of the Rajakumari Village, scheduled as plaint 'A' schedule, 9 cents in Sy.No.28/1 of the said Village scheduled as 'B' schedule, and 75 cents in Sy.No.28/1 of the said Village, scheduled as 'C' schedule. The decree was passed in tune W.P.(C) No.25150 of 2010 -: 2 :- with the plaint schedule descriptions. After obtaining the decree, the petitioner got the sale deed executed through court. The survey numbers of all the said properties shown in the sale deeds are the survey numbers shown in the decree. When the petitioner attempted to get the properties mutated, the same was objected to by the Revenue authorities by saying that the survey numbers of the properties covered by 'A' and 'B' schedules to the documents are not correct, and further that sufficient extent of land is not available in Sy.No.28/1 as contained in the sale deed. 3. According to the petitioner, on getting reliable information that the correct survey numbers of plaint 'A' schedule items in the decree are 28/1, 15/1 and 22/1 and the correct survey number of 'B' schedule item is 219-A, he has applied before the court below for getting a rectification deed executed. He produced Ext.P7 draft rectification deed also along with E.A.55/2006 in E.P.26/2001. It seems that W.P.(C) No.25150 of 2010 -: 3 :- the court below has passed an order thereby dismissing the E.A and advising the petitioner to prefer a fresh suit by referring to the decision reported in _**Sarojini v. Narayani -**_ . _**2008 (1) KLT 516**_ 4. Heard the learned counsel for the petitioner Sri.M. Narendra Kumar and the learned Senior Counsel Sri.Chandran Pillai for the 4[th] respondent. The other respondents are not contesting. 5. It was based on the agreement for sale, the survey numbers were entered in the plaint in the three schedules. It seems that the decree was also passed in tune with the plaint schedule descriptions which were based on the agreement for sale. It seems that totally different survey numbers are sought to be included with regard to plaint 'A' schedule properties as well as 'B' schedule property. At the same time, it has to be noted that there is no change at all with regard to the boundary descriptions of the properties. W.P.(C) No.25150 of 2010 -: 4 :- 6. It seems that the aforesaid EA was filed only for getting a rectification deed executed, without seeking correction of the decree or the plaint. 7. When there is a dispute with regard to the survey number in a case wherein there is no dispute with regard to the boundaries, it is trite that the boundaries will prevail as far as descriptions of the properties are concerned. If specific boundaries are there, the survey numbers with regard to that property has to be applied. Here, there is no serious challenge with regard to the boundaries of the properties. 8. The learned Senior Counsel for the petitioner has pointed out that there is a change in the northern boundary of plaint 'B' schedule property. According to the learned Senior Counsel, what is shown in the decree as the northern boundary of 'B' schedule is store building of Baby John. In the agreement, even though the name of the person shown as the person to whom the store building belongs, is not W.P.(C) No.25150 of 2010 -: 5 :- legible, it seems that it is a store building belongs to some body. Apart from that trivial change, there is no other difference in the boundaries contained in the agreement for sale and the decree. Even if it is found that a rectification deed has to be executed in the matter, a rectification deed can be executed only in tune with the decree. 9. Strangely enough, it seems that the petitioner has not sought for an amendment of the decree. As the said mistakes in the survey numbers had occurred even prior to the decree, that is, even at the very inception, along with the decree, the petitioner ought to have applied for the correction of the plaint also. Of course, with the aid of S.152 of CPC, it is open to the petitioner to apply before the concerned court for getting the plaint as well as the decree amended by incorporating the said survey numbers especially when, there is no change in the boundaries at all. Only after the correction of the plaint and the decree, the petitioner can move the execution court for execution of the W.P.(C) No.25150 of 2010 -: 6 :- rectification deed in question. 10. On hearing both sides, this Court is of the view that the matter requires reconsideration for which the impugned order passed by the court below has to be set aside. All the contentions of both the sides can be considered afresh by the court below. The court below shall keep the matter pending, for enabling the petitioner to get the plaint as well as the decree amended first, for getting its survey numbers corrected. Only after that, the execution court shall consider the said E.A. Of course, if the parties are so advised, they can let in evidence also. They can also file further pleadings in the matter. 11. In the result, this writ petition is allowed and the impugned order is set aside. E.A.55/06 in EP 26/2001 is revived and restored. The court below shall keep the matter pending, for enabling the petitioner to seek for the above said amendments in the plaint as well as the decree in question. W.P.(C) No.25150 of 2010 -: 7 :- It is made clear that even though an application for that may be filed under Section 152 CPC, it is also open to challenge and the parties are free to file objections. The parties shall appear before the court below on 27.10.2014. ## **Sd/- B.KEMAL PASHA, JUDGE** ul/- [True copy] P.S. to Judge