High Court of KeralaSingle JudgeOriginal petitions disposed with directions: OP...
P.V. RAMAKRISHNAN v. T.K. RATNA BABU (OP(C) Nos.2816 of 2014 & con.cases)
Case / Petition Number:OP(C) No.2816 of 2014 & con.cases
Neutral Citation:/
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- V.G. Arun
- Judgment Date
- 2023-03-02
- Court Decision / Holding
- OP(C) Nos.2816 of 2014: The order in I.A.1785/2014 in O.S.No.15/2008 set aside; the Sub Court Palakkad to reconsider with reasoned order after considering prior judgments. OP(C) 1373/2015: The order in I.A.1227/2015 in O.S.No.45/2015 set aside; court to reconsider maintainability and related issues with a reasoned order. OP(C) No.575 of 2019: The court to consider I.A.402/2017 in O.S.No.45/2015 and pass appropriate orders. OP(C) No.464/2020: Dismissed. OP(C) No.1055/2019: Dismissed. OP(C) No.1033/2019: Dismissed.
- Final Disposition
- Original petitions disposed with directions: OP(C) No.2816/2014 - I.A.1785/2014 in O.S.No.15/2008 to be reconsidered with a reasoned order; OP(C) No.1373/2015 - I.A.1227/2015 in O.S.No.45/2015 to be reconsidered; OP(C) No.575/2019 - I.A.402/2017 to be reconsidered; OP(C) Nos.464/2020, 1055/2019, and 1033/2019 dismissed. The court stayed or stayed-recalled directives as required, and the core identity of the plaint schedule property was treated as concluded by earlier judgments, though certain interlocutory steps were remanded for fresh decisions.
Parties to the Case
Appellants / Petitioners
- P.V. Ramakrishnan
Respondents
- T.K. Ratnababu
Legal Representation & Advocates
Counsels for Petitioners
- • S.V. Balakrishna Iyer
- • P.B. Krishnan
- • P.M. Neelakandan
- • S. Nithin Anchal
- • Sabu George
- • P.B. Subramanyan
Counsels for Respondents
- • R.D. Shenoy
- • Legith T. KottaKKal
- • B. Pramod
- • S. Vinod Bhat
Case Synopsis & Summary
The judgments arise from a long-drawn land dispute concerning 7.97 acres comprising Sy.Nos.126/5, 126/2C and 126/2A in Karingarapully Amsom, Kodumbu, Palakkad. In 1908 a partition deed allotted the property to Ayya Pattar; after his death, his heirs, notably P.A. Viswanathan and successors, sought partition (O.S. Nos. 17/1964 and 337/1989). The final decree in 1991 allotted 2/9 shares and 1.77 acres to the plaintiffs, delivering that portion in 2013, while other attempts to recover 6.20 acres continued. The case traversed issues of verumpattam, oral leases to Mallu, and subsequent transfers of interests by Krishnan @ Kitta, with Taluk Land Board findings ultimately holding that the disputed 7.97 acres were owned/possessed by P.V. Damodara Sharma, excluding them from the ceiling calculations. Multiple petitions (OP(C) Nos.2816/2014 and connected matters) challenged orders relating to appointment of Advocate Commissioners and mutation corrections, and addressed maintainability, evidence, and the genuineness of documentary transfers. The Kerala High Court, under Justice V.G. Arun, held that commission reports are evidence but should not be used to protract litigation, set aside certain interim orders, and remand for reasoned decisions, while dismissing other challenges. The outcome emphasizes that the identity of the plaint schedule property had been conclusively determined by prior judgments, though several interlocutory orders required re-examination.
Provisions of Law Cited
Constitution of India, Article 227CPC, Order XI Rule 1Kerala Land Reforms Act (Section 72)
Legal Doctrines & Maxims
- Res judicata
- Commission reports are evidence (to be used carefully)
Submissions & Arguments
Contentions of Appellants / Petitioners
The applicant(s) contend that the 7.97 acres were not validly leased to Mallu and that the identity and title of the plaint schedule property had already been concluded by the partition suits and final decree in O.S.337/1989, with 1.77 acres delivered to the plaintiffs. They challenge the need for an Advocate Commissioner to delineate title across various documents (Ext. A3, Ext. 403/1964, Ext. 161/1958) and argue that such commissions should not protract litigation; they rely on Land Board findings that the disputed land lies outside the ceiling and that the petitioners’ rights are barred by earlier determinations and the acts of the parties. They urge the court to exercise caution under Article 227, and to set aside or reconsider orders that permitted commissioners or interrogatories while maintaining that the litigation should proceed on the already settled issues of title and possession.
Contentions of Respondents
The respondents defend the lower court’s orders that allowed or refused Commission appointments and interrogatories, arguing that the complex chain of title, leases, and transfers requires clarifications through Commission reports and identity determinations. They contend that maintainability issues and reliefs sought in O.S.45/2015 and related proceedings depend on effective identification of the property as per earlier decrees and transfer entries. They emphasize the necessity of Commission reports to determine disputes over possession, title, and mutation entries, given the long history and conflicting document trails spanning SRO records, Pattahar lease history, and subsequent assignments.
Cited Precedents (6)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Gopal Chettiyar deceased and three others v. P.A.A Shahul Hameed and another | (1988) SCC OnLine Mad. 80 | Positive | Cited to support that Commission reports are ordinarily evidence and that appointments should not be misused to protract litigation; relies on established practice about Commission reports as evidence. |
| Payani Achuthan v. Chamballikundu Harijan Fisheries - Development Co operative Society and others | AIR 1996 Ker. 276 | Positive | Cited to illustrate limits on superintendence and evidentiary value of Commission reports; supports the stance that courts should not unduly hinder best evidence. |
| Mytheen Kunju v. Azeez Kunju | (1992) 1 KLT 713 | Positive | Cited regarding Commission reports becoming evidence and the limits of superintendence; underscores that trial courts retain authority within bounds. |
| Yesudasan Nadar v. Principal Munsiff and others | (1991) 2 KLT SN 33 (C.No.43) | Positive | Cited to support the proposition that Article 227 powers to interfere are rare and should be exercised in exceptional cases. |
| Raj Narain v. Indira Nehru Gandhi | (1972) 3 SCC 850 | Positive | Quotations on relevance of interrogatories under Order XI Rule 1 CPC; supports careful, relevant interrogatories rather than fishing inquiries. |
| Union of India v. Ibrahim Uddin | (2012) 8 SCC 148 | Positive | Cited to explain the object of Order XI CPC and the purpose of obtaining material facts through interrogatories and documents. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 OP(C) NO. 2816 OF 2014**
**OS 15/2008 OF ADDITIONAL SUB COURT, PALAKKAD**
## **PETITIONER/S:**
P.V. RAMAKRISHNAN AGED 72 YEARS S/O.P.A.VENKITARAMA IYER, 18/626, TALI ROAD, KOZHIKODE PIN-673 002 BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN ANCHAL SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN
## **RESPONDENT/S:**
T.K. RATNA BABU AGED 47 YEARS S/O.KITTA & KRISHNAN, THUPPALANKAD KALAM, KARINGARAPPULLY AMSOM, KODUMBU, PALAKKAD DISTRICT PIN-678 551 BY ADVS. SRI.R.D.SHENOY (SR.) SRI.LEGITH T.KOTTAKKAL SRI.B.PRAMOD SRI.S.VINOD BHAT
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06.01.2022, THE COURT ON 02.03.2023, ALONG WITH OP(C).1373 OF 2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) Nos.2816 of 2014 & con.cases
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 OP(C) NO. 1373 OF 2015**
**OS 45/2015 OF ADDITIONAL SUB COURT, PALAKKAD**
## **PETITIONER/S:**
1 V.D.PRAKASH AGED 45 YEARS S/O.P.A.VISWANATHAN, 27/33, MARUTHAM NAGAR, VADAVALLI, COIMBATORE-41,TAMIL NADU.(DIED) 2 RADHA PRAKASH AGED 60 YEARS W/O LATE V.D PRAKASH, DOOR NO.27/33, MARTHAM NAGAR, VADAVALLI, PERUR TALUK, COIMBATORE, TAMAIL NADU. 3 AISHWARYA D AGED 27 YEARS D/O. LATE V.D.PRAKASH, DOOR NO. 27/33, MARUTHAM NAGAR, VADAVALLI, PERUR TALUK, COIMBATORE, TAMIL NADU. BY ADVS. BABU KARUKAPADATH M.A.VAHEEDA BABU P.U.VINOD KUMAR ARYA RAGHUNATH VAISAKHI V. T.M.MUHAMMED MUSTHAQ UNAIS K.P.
## **RESPONDENT/S:**
1 THE STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD DISTRICT, CIVIL STATION, PALAKKAD-678 001. 2 THE VILLAGE OFFICER VILLAGE OFFICE,KODUMBU, PALAKKAD 678 010.
O.P.(C) Nos.2816 of 2014 & con.cases
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3 T.K.MOHAN BABU S/O.KITTA @ KRISHNAN, AGED 48, THALLANKAD KALAM, KARINGARAPULLY P.O, PALAKKAD 678 551. 4 V.MEENAKSHI GRANDHI W/O.P.A.VISWANATHAN, NEW NO.16, FLAT NO.3, PAVANASAM SIVAN ROAD, SANTHOMI, CHENNAI. BY ADVS. GOVERNMENT PLEADER SMT.P.G.BABITHA SRI.M.R.MANIKANTAN SRI.S.SREEKUMAR SR. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06.01.2022, THE COURT ON 02.03.2023, ALONG WITH OP(C). 2816/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) Nos.2816 of 2014 & con.cases
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 OP(C) NO. 575 OF 2019**
**CMA 24/2017 OF II ADDITIONAL DISTRICT COURT, PALAKKAD**
## **PETITIONER/S:**
1 V.D.PRAKASH AGED 56 YEARS S/O.P.A.VISWANATHAN, 27/33, MARUTHAM NAGAR, VADAVALLI, COIMBATORE - 41,TAMIL NADU. 2 V.MEENAKSHI GANDHI AGED 57 YEARS D/O.P.A.VISWANATHAN, RESIDING AT 16-3, WARD 146, PAPANASAM SIVAN ROAD, MYLAPORE, CHENNAI - 600 004, REPRESENTED BY HER POWER-OF-ATTORNEY HOLDER, V.D.PRAKASH, S/O.P.A.VISWANATHAN, AGED 56, 27/33, MARUTHAM NAGAR, VADAVALLI, COIMBATORE - 41, TAMIL NADU. 3 ADDL.P3. RADHA PRAKASH AGED 60 YEARS W/O LATE V D PRAKASH,DOOR NO: 27/33,MARUTHAM NAGAR, VADAVALLI, PERUR TALUK,COIMBATORE - 41, TAMIL NADU 4 ADDL.P4. AISHWARYA.D. AGED 27 YEARS D/O LATE V D PRAKASH,DOOR NO: 27/33,MARUTHAM NAGAR, VADAVALLI, PERUR TALUK,COIMBATORE, TAMIL NADU - 41 (ADDITIONAL PETITIONERS 3 AND 4 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED PETITIONER 1 VIDE ORDER DATED 03.08.2021 IN I.A.NO:2/2021) BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SMT.ARYA RAGHUNATH SMT.VAISAKHI V.
O.P.(C) Nos.2816 of 2014 & con.cases
**==> picture [16 x 9] intentionally omitted <==**
SRI.T.M.MUHAMMED MUSTHAQ SHRI.UNAIS K.P.
## **RESPONDENT/S:**
1 T.K.MOHAN BABU XS/O.KITTA @ KRISHNAN, AGED 51, THRIPALANKAD KALAM, KARINGARAPULLY P.O., PALAKKAD - 678 551. 2 THE STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PALAKAKD DISTRICT, CIVIL STATION, PALAKKAD - 678 001. 3 THE VILLAGE OFFICER VILLAGE OFFICE, KODUMBU, PALAKKAD - 678 551. BY ADV SRI.BINOY VASUDEVAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06.01.2022, THE COURT ON 02.03.2023, ALONG WITH OP(C). 2816/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) Nos.2816 of 2014 & con.cases
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# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944**
**OP(C) NO. 1033 OF 2019**
**OS 45/2015 OF ADDITIONAL SUB COURT, PALAKKAD**
## **PETITIONER/S:**
T.K.MOHAN BABU, AGED 52 YEARS S/O. LATE KITTA @ KRISHNAN, THUPPALAMKADU,KARINGARAPULLY AMSOM DESOM, PALAKKAD-678 559 BY ADV BINOY VASUDEVAN
## **RESPONDENT/S:**
1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR,COLLECTORATE, CIVIL STATION, PALAKKAD-678 001 2 VILLAGE OFFICER, KODUMBU VILLAGE, PALAKKAD-678 559 3 V.D.PRAKASAN, S/O.P.A.VISWANATHAN, AGED ABOUT 59 YEARS, RESIDING AT MARUTHA NAGAR, VADAVALLI, COIMBATORE, TAMIL NADU, 641 041 4 MEENAKSHI GRANDHI, D/O. VISWANATHAN,AGED ABOUT 59 YEARS, PAPANASAM SIVAM ROAD, SANTOMI, CHENNAI, TAMILNADU-641 041 5 RADHA PRAKASH SOUGHT TO BE IMPLEADED 6 AISHWARYA D SOUGHT TO BE IMPLEADED BY ADVS. GOVERNMENT PLEADER SRI.BABU KARUKAPADATH SRI.P.B.KRISHNAN
O.P.(C) Nos.2816 of 2014 & con.cases
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SRI.P.M.NEELAKANDAN SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN SMT.ARYA RAGHUNATH SMT.VAISAKHI V. SRI.MANU VYASAN PETER SHRI.S.N.AMARNATH SRI.T.M.MUHAMMED MUSTHAQ SMT.SNEHA SUKUMARAN MULLAKKAL SRI.SHYAM PADMAN SMT.BOBY M.SEKHAR
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06.01.2022, THE COURT ON 02.03.2023, ALONG WITH OP(C). 2816/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) Nos.2816 of 2014 & con.cases
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 OP(C) NO. 1055 OF 2019**
**OS 222/2015 OF ADDITIONAL SUB COURT, PALAKKAD**
## **PETITIONER/S:**
PREMAKUMARI.T.K AGED 58 YEARS D/O. LATE KITTA @ KRISHNAN, THUPPALAMKADU, KARINGARAPULLY AMSOM DESOM, PALAKKAD - 678 551 BY ADV BINOY VASUDEVAN
## **RESPONDENT/S:**
1 V.D.PRAKASAN AGED 48 YEARS S/O. P.A. VISWANATHAN, RESIDING AT MARUTHA NAGAR, VADAVALLI, COIMBATORE, TAMIL NADU - 641 041 2 MEENAKSHI W/O. VISWANATHAN, RESIDING AT MARUTHA NAGAR, VADAVALLI, COIMBATORE, TAMIL NADU - 641 041 3 MEENAKSHI GRANDHI AGED 50 YEARS D/O. VISWANATHAN, PAPANASAM SIVAM ROAD, SANTOMI, CHENNAI, TAMILNADU - 600 090 4 P.V. RAMAKRISHNAN AGED 69 YEARS S/O. P.A.VENKITARAMA LYER, THALI ROAD, KASABA AMSOM, KOZHIKODE - 673 072 5 P.V.JAYARAMAN AGED 58 YEARS S/O. P.A. VENKITARAMA LYER, 1ST FLOOR, 16TH CROSS, ST.BASATH NAGAR, CHENNAI - 600 090 6 P.V.RANGANAYAKI W/O. SAHASRANAMA LYER, DS/O. P.A. VENKITTARAMA LYER, THIRUNELLAYI GRAMAM, PIRIYARI AMSOM
O.P.(C) Nos.2816 of 2014 & con.cases
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DESOM, PALAKKAD DISTRICT - 678 001 7 P.V.ANANTHALAKSHMI AGED 76 YEARS W/O. L.V.ANANTHAMARYANAN, D/O. P.A.VENKITARAMA LYER, SREENIKETHAN, CHATHAPURAM, PALAKKAD DISTRICT - 678 004 8 P.V. RADHAMANI AGED 64 YEARS W/O. R.SESHAMANI, D/O. P.A. VENKITARAMA LYER, INDIRA NAGAR, THARUVATHUPADI, PIRAYARI AMSOM DESOM, PALAKKAD - 678 004 9 P.V. VENUGOPALAN AGED 52 YEARS S/O. P.A. VENKITESHWARA LYER, RESIDING AT ASHIWAD, 36/363, ST. FRANCIS SAVIOUR CHURCH ROAD, CHAKKAMADAM LANE, KALOOR, COCHIN - 682 017 10 P.V.KRISHNAMOORTHY AGED 48 YEARS S/O. P.A. VENITESHWARA LYER, RESIDING AT ASHIWAD, 36/363, ST. FRANCIS SAVIOUR CHURCH ROAD, CHAKKAMADAM LANE, KALOOR, COCHIN - 682 017 11 P.V. RANGANAYAKI AGED 66 YEARS W/O. N.DEVARAJAN, D/O. P.A. VENKITESHWARA LYER, KAITHARATHUMADAM, EDAYAZHAM, VAZHIVACHUR, VAIKOM, KOTTAYAM DISTRICT - 686 144 12 P.V.SEETHALAKSHMI AGED 52 YEARS W/O. S.K. MANI, D/O. P.A. VENKITESHWARA LYER, XX/II, VANDANA, PULINCHODU STOP, ALUVA, ERNAKULAM DISTRICT - 683 101 13 VENKITESHWARAN @ BALAJI S/O. P.V. DMODARA SHARMA, RESIDING AT ASHIWAD, 36/363, ST. FRANCIS SAVIOUR CHURCH ROAD, CHAKKAMADAM LANE, KALOOR, COCHIN - 682 017 14 VIDHYA AGED 20 YEARS, W/O. SUKUMARAN, K.K. NAGAR, CHENNAI, TAMIL NADU - 600 078 15 T.K.RATNA BABU AGED 48 YEARS S/O. KITTU @ KRISHNAN, THUPPALANGADU, KARINAGAPULLY, PALAKKAD - 678 551 16 T.K.MOHAN BABU
O.P.(C) Nos.2816 of 2014 & con.cases
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AGED 50 YEARS S/O. KITTA @ KRISHNAN, THUPPALANGADU, KARINGARAPULLY, PALAKKAD - 678 551 17 ADDL.R17.RADHA PRAKASH AGED 60 YEARS W/O LATE V D PRAKASH, DOOR NO: 27/33,MARUTHAM NAGAR, VADAVALLI, PERUR TALUK, COIMBATORE, TAMIL NADU 18 ADDL.R18. AISHWARYA.D. AGED 27 YEARS D/O LATE V D PRAKASH, DOOR NO: 27/33,MARUTHAM NAGAR, VADAVALLI, PERUR TALUK,COIMBATORE, TAMIL NADU (ADDITIONAL RESPONDENTS 17 AND 18 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED RESPONDENT 1 VIDE ORDER DATED 03.08.2021 IN I.A.NO:1/2021) 19 P R REMA W/O LATE P V KRISHNAMOORTHY, AGED 49 YEARS, 36/361-B, ASHIRWAD, CHAKKAMADAM LANE ST.FRANCIS CHURCH ROAD, KALOOR KOCHI - 682017 (IS IMPLEADED AS THE LR'S OF DECEASED 10 TH RESPONDENT VIDE ORDER DATED 07.09.2021 IN I.A.NO:1 OF 2019) BY ADVS. SRI.BABU KARUKAPADATH SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SRI.SABU GEORGE SMT.ARYA RAGHUNATH SRI.MANU VYASAN PETER SMT.VAISAKHI V. SRI.SHELLY PAUL SMT.SNEHA SUKUMARAN MULLAKKAL THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06.01.2022, THE COURT ON 02.03.2023, ALONG WITH OP(C). 2816/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) Nos.2816 of 2014 & con.cases
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# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 OP(C) NO. 464 OF 2020**
**OS 38/2015 OF ADDITIONAL SUB COURT, PALAKKAD**
## **PETITIONER/S:**
PREMAKUMARI T.K. AGED 59 YEARS D/O.LATE KITTA @ KRISHNAN, THUPPALAMKADU, KARINGARAPULLY AMSOM DESOM, PALAKKAD-678 551. BY ADV BINOY VASUDEVAN
## **RESPONDENT/S:**
1 P.V. VENUGOPALAN AGED 53 YEARS S/O.P.A.VENKITESHWARA IYER, AGED ABOUT 53 YEARS, RESIDING AT ASHIWAD, 36/363, ST.FRANCIS SAVIOUR CHURCH ROAD, CHAKKAMADAM LANE, KALOOR, COCHIN-682 017. 2 P.V.KRISHNAMOORTHY, S/O.P.A.VENKITESHWARA IYER, AGED ABOUT 53 YEARS, RESIDING AT ASHIWAD, 36/363, ST.FRANCIS SAVIOUR CHURCH ROAD, CHAKKAMADAM LANE, KALOOR, COCHIN-682 017. 3 P.V.RANGANAYAKI, W/O.N.DEVARAJAN, D/O.P.A.VENKITESHWARA IYER, AGED ABOUT 67 YEARS, KAITHARATHUMADAM, EDAYAZHAM, VAZHIVACHUR, VAIKOM, KOTTAYAM DISTRICT-686 144. 4 P.V.SEETHALAKSHMI, W/O.S.K.MANI, D/O.PA.A.VENKITESHWARA IYER, AGED ABOUT 53 YEARS, XX/II, VANDANA, PULINCHODU STOP, ALUVA, ERNAKULAM DISTRICT-683 101. 5 VENKITESHWARAN @ BALAJI, S/O.P.V.DAMODARA SHARMA, RESIDING AT ASHIWAD,
## O.P.(C) Nos.2816 of 2014 & con.cases
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- 36/363, ST.FRANCIS SAVIOUR CHURCH ROAD, CHAKKAMADAM LANE, KALOOR, COCHIN-682 017.
- 6 P.V.RAMAKRISHNAN, S/O.P.A.VENKITARAMA IYER, AGED ABOUT 70 YEARS, THALI ROAD, KASABA AMSOM, KOZHIKODE-673 072.
- 7 P.V.JAYARAMAN, S/O.P.A.VENKITARAMA IYER, AGED ABOUT 59 YEARS, 1ST FLOOR, 16TH CROSS, ST.BASATH NAGAR, CHENNAI-600 090.
- 8 P.V.RANGANAYAKI, W/O.SAHASRANAMA IYER, D/O.P.A.VENKITARAMA IYER, THIRUNELLAYI GRAMAM, PIRIYARI AMSOM DESOM, PALAKAKD DISTRICT-678 001.
- 9 P.V.ANANTHALAKSHMI, W/O.L.V.ANANTHANARAYANAN, D/O.P.A.VENKITARAMA IYER, AGED ABOUT 77 YEARS, SREENIKETHAN, CHATHAPURAM, PALAKKAD DISTRICT-678 004.
- 10 P.V.TADHAMANI, W/O.R.SESHAMANI, D/O.P.A.VENKITARAMA IYER, AGED 65 YEARS, INDIRA NAGAR, THARUVATHUPADI, PIRAYARI AMSOM DESOM, PALAKKAD-678 004.
- 11 C.R.JANAKI, W/O.LATE P.V.DAMODARASARMA, YES YES TEMPLE TOWERS, THIRUVENKITANAGAR, AMPATHUR, TAMILNADU STATE-600 053.
- 12 V.D.PRAKASH, AGED 54 YEARS S/O.LATE P.A.VISWANATHAN, RESIDING AT MARUTHA NAGAR, VADAVALLI, COIMBATORE, TAMIL NADU-641 041.
- 13 V.MEENAKSHI, W/O.P.A.VISWANATHAN(LATE), RESIDING AT 27/33, MARUTHA NAGAR, VADAVALLI, COIMBATORE, TAMIL NADU-641 041.
- 14 MEENAKSHI GRANDHI, D/O.VISWANATHAN, AGED ABOUT 51 YEARS, PAPANASAM SIVAM ROAD, SANTOMI, CHENNAI, TAMILNADU-600 090.
- 15 VIDHYA, W/O.SUKUMARAN, AGED ABOUT 21 YEARS, K.K.NAGAR, CHENNAI, TAMIL NADU-600 078.
BY ADVS.
- SRI.P.B.KRISHNAN
O.P.(C) Nos.2816 of 2014 & con.cases
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SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SMT.B.ANUSREE SRI.MANU VYASAN PETER SMT.MEERA P.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06.01.2022, THE COURT ON 02.03.2023, ALONG WITH OP(C). 2816/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) Nos.2816 of 2014 & con.cases
**==> picture [23 x 8] intentionally omitted <==**
_**(O.P.(C) Nos.2816 of 2014, 1373 of 2015, 575, 1033 & 1055 of 2019, 464 of 2020)**_
## **JUDGMENT**
Dated this the 02[nd] day of March, 2023
These original petitions are the offshoots of a long drawn litigation between the legal heirs of one Ayya Pattar, who was the jenmi of the land which is the subject matter of dispute, and the legal heirs of Mallu, who claims the land to have been leased out to Mallu by Ayya Pattar and to have devolved upon their father, Krishnan @ Kitta. The essential facts are as under;
In the partition deed (Document No.1345 of
1908 dated 25.04.1908 of Kozhikode SRO), executed between Ayya Pattar and his brothers, 7.97 Acres of garden land, comprised in Sy.Nos.126/5, 126/2C and 126/2A in Karingarapully Amsom, Kodumbu Village in Palakkad District was included as A schedule in item No.7 and set apart to the share
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of Ayyar Pattar. After the death of Ayya Pattar, one of his sons by name P.A Viswananthan, filed O.S.No.17 of 1964 before the Subordinate Judge's Court, Kozhikode for partition of the properties allotted to Ayya Pattar. In that suit, the 7.97 Acres was scheduled as item No.7 of plaint A schedule. The two sons of Viswanathan later filed O.S.No.337 of 1989 before the Subordinate Judges Court, Palakkad for partition of the 7.97 Acres and allotment of their 2/9 shares. Apart from the other legal heirs of Ayya Pattar, T.K.Ratnababu, grandson of Mallu and son of Kitta @ Krishnan, was impleaded as defendant No.15 in the suit. Ratnababu was impleaded, since he had been put in possession of the 7.97 Acres by some the legal heirs of Ayya Pattar, based on an agreement of sale executed, without the volition and consent of the plaintiffs in the suit. On his part, T.K.Ratnababu filed a suit for specific
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performance as O.S.No.267 of 1989. The suits were tried jointly and by separate judgments dated 21.10.1991, the suit for partition (O.S.No.337 of 1989)was allowed and a preliminary decree allotting 2/9 shares to the plaintiffs passed and O.S.No.267 of 1989 was dismissed. The decrees were affirmed in appeal by this Court.
2. In the final decree proceedings based on the decree in O.S.No.337 of 1989, 1.77 Acres in Sy.No.126/2C, from out of the total extent of 7.97 Acres, was identified and demarcated for delivery to the plaintiffs. The execution was resisted by a person named Chami @ Ramachandran claiming to be a cultivating tenant of the land, based on a pattacheet for 8.32 Acres, including the 7.97 Acres, executed by Mallu on 12.04.1963. In the claim petition, the legal heirs of Ayya Pattar, as also the legal heirs of Kitta @ Krishnan, son of Mallu were also arrayed as
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respondents. Over and above the lease granted in his favour by Mallu, Chami also relied on Document No.4066 of 2007 executed by the children of Kitta, namely, Mohan Babu and Premakumari, assigning the leased land in his favour and a rectification deed (document No.5721 of 2008)
executed by the assignors.
3. Chami's claim having been rejected, he filed Ex.FA.No.31 of 2012 before this Court.
After elaborate consideration, this Court reached the conclusion that the claim petition by Chami was set up at the instance of T.K.Ratnababu, T.K.Mohan Babu and Premakumari, the legal heirs of Krishnan @ Kitta. For arriving at such conclusion, the learned Single Judge referred to the findings of the Taluk Land Board in SM No.1270 of 1977, with respect to the direction to surrender 9.40 Acres, allegedly held by Krishnan @ Kitta in excess of the ceiling limit. The
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disputed 7.97 Acres was also included in the so called excess land. In the ceiling proceedings, P.V.Damodara Sharma, grandson of Ayya Pattar, appeared in his capacity as landowner and contended that the 7.97 Acres was in the ownership and possession of his family. Krishnan @ Kitta also supported the claim of Damodara Sharma and submitted that 7.97 Acres was not included among the properties given on oral lease to Mallu. The properties in Mallu's possession were partitioned between Mallu and his sons as per Partition Deed No.161/1958 of SRO, Palakkad, but the 7.97 Acres was not included in the partition deed. Subsequently, the verumpattam right held by Mallu was transferred to Krishnan @ Kitta as per Sale Deed No.403/1964. The 7.97 Acres was not included in the sale deed also. All the above transactions had taken place before the Kerala Land Reforms Act came into force and
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Krishnan @ Kitta had filed a J Form application before the Land Tribunal Kollemcode for getting assignment of the leasehold lands in his possession. The 7.97 Acres was not included in the J Form also. Further, in the Authorised Officer's report to the Land Board, it was stated that the 7.97 Acres is owned, held and possessed by P.V.Damodara Sharma and Krishnan @ Kitta has no tenancy right over the lands. Based on these materials and in view of the common stand taken by the parties, the Taluk Land Board found the 7.97 Acres, comprised in Sy.Nos.126/5, 126/2C and
126/2A to be owned and possessed by P.V.Damodara Sharma. Based on the finding, the 7.97 Acres was excluded from the ceiling area and the extent of surplus land held by Krishnan @ Kitta fixed as 1.43 Acres in Sy.Nos.20/7A, 18/1 and 126/3.
4. As regards the contention of Chami based on assignment deed No.4076/07 executed by Mohan
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Babu and Premakumari and the correction deed dated 24.06.2008, it was observed that the original deeds produced on 24.07.2008 along with claim petition were taken back from the court and replaced with certified copies. Suspecting foul play in production of certified copies instead of originals, the execution petitioners filed an application and compelled the claim petitioners to produce the originals. On verification of the originals, it was noticed that the original assignment deeds were executed in favour of Chami @ Ramachandran, S/o.Chathan @ Raman, whereas in the subsequently produced original, the assignee's name is shown as Chami @ Ramachandran, S/o.Chathan @ Chami. It is alleged that the
photograph of Chami @ Ramachandran, S/o.Chathan @ Raman was removed and the photograph of the claimant pasted in its place. After careful analysis of the materials, this Court came to the
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conclusion that clear manipulation or apparent forgery had been practised by the claim petitioner to make it appear that the documents were executed in his name. Referring to C1 report and C3 plan of the Advocate Commissioner, the learned Single Judge found that there is no proof to show that the property described in the pattacheet for 8.32 Acres executed By Mallu on 12.04.1963 included the 7.97 Acres also.
5. On the strength of the judgment in Ex.FA No. 31 of 2012, the plaintiffs in O.S.No.337 of 1989 got delivery of the 1.77 Acres allotted to him on 8.04.2013, that too only after this Court dismissed O.P.(C) No.1239 of 2013 filed by K.Ratnababu and directed the execution court to
deliver the 1.77 Acres on or before 11.04.2013.
6. Thereafter, the legal heirs of Ayya Pattar, including the plaintiffs in O.S.No.337 of
1989 filed as suit for recovery of the balance
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extent of 6.20 Acres outstanding in the possession of T.K.Ratnababu. The suit for recovery is now pending before the Additional Sub Court, Palakkad as No.15 of 2008. In the additional written statement filed in that suit, T.K. Ratnababu took up a contention that the 6.20 Acres sought to be recovered does not form part of A schedule item No.7 of document No.1345 of 1908 or A schedule item No.7 in O.S No.17 of 1964. Ratnababu also filed I.A.No.1785 of 2014 seeking appointment of an Advocate Commission for separately identifying the properties covered by item No.7 in document No.1345 of 1908, item No.7 in the final decree in O.S.No.17 of 1964 and item No.37 in document No.403/1964 executed by Mallu in favour of Kitta. In spite of the objection raised by the legal heirs of Ayyar Pattar, the court below allowed the application. O.P.No.2816 of 2014 is filed by one of the defendants in the
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suit challenging the order allowing the commission application.
7. O.S No.45 of 2015 pending before the Additional Sub Court, Palakkad, is a suit filed by T.K.Mohan Babu, S/o.Krishnan @ Kitta for a direction to the Government and the Village Officer, Kodumbu Village to correct the Thandaper entry with respect to the 1.77 Acres of land in the name of V.D.Prakash and V. Meenakshi, son and
daughter of late P.A.Viswanathan, one of the plaintiffs in O.S.No.337 of 1989. The relief is premised on contentions similar to those raised by T.K.Ratnababu in his written statement in O.S.No.15 of 2008. In the suit, V.D Prakash and Meenakshi, defendants 3 and 4, filed an
interlocutory application requiring the court to consider the question of maintainability of the suit as a preliminary issue, since the suit is barred by the principles of _res judicata_ and issue
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estoppel. Pending that application, the plaintiff, T.K.Mohan Babu filed I.A.No.1227 of 2015 under Order XI Rule 1 of CPC, seeking leave to deliver interrogatories to defendants 3 and 4. Although defendants 3 and 4 objected, contending that the proposed interrogatories are irrelevant and all queries therein are covered by documents and inter party judgments, the trial court allowed I.A.No.1227 of 2015. Aggrieved by the said order, defendant No.3 in O.S.No.45 of 2015 has filed O.P.(C) No.1373 of 2015.
8. O.P.(C) No.575 of 2019 is filed by defendants 3 and 4 in O.S.No.45 of 2015, aggrieved by the order in I.A.No.402 of 2017 whereby their application to vacate the _ex parte_ interim order of injunction granted in favour of the plaintiff was dismissed for the reason of this Court having stayed all further proceedings in the suit as per the order in O.P.(C) No.1373
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of 2015. Although defendants 2 and 3 challenged that order in CMA No.24 of 2017, the appellate court also refused to interfere, since all further proceedings in the suit have been stayed by this Court.
9. T.K.Mohan Babu, the plaintiff in
O.S.No.45 of 2015 has filed OP(C) 1033 of 2019, aggrieved by the order recalling of the Commission Warrant once issued. The Commission
Warrant was recalled for the reason that, since the suit is filed against the Government for deleting the mutation affected in the revenue
records, there is no necessity of appointing an Advocate Commissioner to identify the property.
10. T.K.Premakumari, the daughter of
Krishnan @ Kitta has filed a suit, now pending as O.S.No.222 of 2015 before the Additional Sub Court. The prayer in the suit is to set aside the judgment and decrees passed in O.S.No.337 of
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1989, with respect to 1.77 Acres forming part of the 7.97 Acres. She has also sought a permanent prohibitory injunction restraining the legal heirs of Ayyar Pattar from alienating the 7.97 Acres and committing waste therein. The plaint averment is to the effect that the defendants and their predecessors had obtained the judgment and decrees by playing fraud on the court. It is also contended that the plaint scheduled property in O.S.No.337 of 1989 is not the plaint A schedule property in O.S.No.222 of 2015, which is item No.37 to the assignment deed No.403 of 1964 inherited by she and her brothers from their father Krishnan @ Kitta. Along with the suit, the plaintiff preferred I.A.No.3801 of 2015 for
appointing an Advocate Commissioner and an _ex parte_ order was passed. The Advocate Commissioner filed an interim report and sought assistance of the Taluk Surveyor or private
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Surveyor for effective identification of the property. By Ext.P8 order, the trial court rejected the request, since the interim report itself was found to be a detailed report as to the lie and nature of the property. Aggrieved, T.K.Premakumari, the plaintiff in O.S.No.222 of 2015, has filed OPC No.1055 of 2019.
11. T.K.Premakumari has also filed another suit, now pending as O.S No.38 of 2015 before the Additional Sub Court, Palakkad, seeking a permanent prohibitory injunction, restraining the legal heirs of Ayya Pattar from interfering with the peaceful possession and enjoyment of the plaint scheduled property, having an extent of 2.10 Acres comprised in 126/2C, by the petitioner and her brothers. The averments in that suit are to the effect that the judgment and decree in O.S.No.337 of 1989 was secured by fraud. In the suit, I.A No.526 of 2015 was filed for appointing
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Advocate Commissioner to identify the property in the possession of the plaintiff and her brothers, with reference to item No.28 in A schedule of the property covered by partition deed No.161 of 1958, item No.37 in assignment deed No.403 of 1964 and the property included in the J Form filed before the Kollemcode Land Tribunal in O.A.No.2867 of 1976. The plaintiff also wanted the Advocate Commissioner to identify A schedule
item No.7 in document No.1345 of 1908 or A schedule item No.7 in O.S No.17 of 1964
separately. The court below dismissed the
application, finding appointment of Advocate Commissioner to be unnecessary for considering the prayer for setting aside the judgement and decrees in O.S.No. 337 of 1989. Aggrieved,
T.K.Premekumari, the plaintiff in O.S.No.38 of 2015, has filed OP(C) No.464 of 2020.
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12. Senior Adv.S.V.Balakrishna Iyer, ably instructed by Adv.Babu Karukapadath, put forth detailed arguments in support of the challenge raised in OP(C) Nos.2816 of 2014, 1373 of 2015 and 575 of 2019. The counter arguments, and challenge against the orders impugned in O.P. (C)Nos.1033 of 2019, 1055 of 2019 and 464 of 2020, were led by Senior Advocate S.Sreekumar, with the skilful assistance of Adv.Binoy Vasudevan. Advocate Vinod Bhatt also put forth erudite arguments in support of the Mallu faction.
13. Before proceeding to consider the
contentions on merits, I have to deal with the caveat raised by Sr.Adv. S. Sreekumar and Adv. Vinod Bhat, about the impropriety in this Court entering into the merits of the suits while exercising the power of superintendence under Article 227 of the Constitution of India. In
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support of the contention as to the limits on exercising the power of superintendence, especially with respect to the orders appointing or refusing to appoint Advocate Commissioner, reliance is placed on the decisions in _**Payani Achuthan v Chamballikundu Harijan Fisheries - Development Co operative Society and others [AIR 1996 Ker.276], Mytheen Kunju v. Azeez Kunju [1992(1) KLT 713] and Yesudasan Nadar v. Principal Munsiff and others [1991(2) KLT SN 33 (C.No.43)]**_ . In _**Mytheen Kunju** (supra)_ , it is held that the Commission report becomes evidence by operation of law and is nothing more than evidence. The trial court possesses the authority to appoint a Commission, refused to appoint commissioner, cancel or refuse to cancel the commission. If the trial judge acted within his authority, the power of superintendence or revisional jurisdiction shall not be exercised.
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In _**Payani Achuthan** (supra)_ , it was held that the court should not prevent a party from adducing the best evidence, if such evidence can be gathered with the help of the Commissioner.
_**Yesudasan Nadar** (supra)_ , is pressed into service in support of the proposition that direction under Article 227 would be justified only in rare and appropriate cases in which the judicial discretion is found to be exercised in a patently and perverse manner and no other remedy is available.
14. In reply, Senior S.B.Balakrishna Iyyer submitted that the instant is a classic example of abuse of the judicial process, which by itself, is sufficient for this Court to invoke the power under Article 227. It is contended that the disputes raised by the legal heirs of Krishnan @ Kitta are not sustainable in view of Krishnan’s specific stand before the Taluk Land
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Board that the disputed 7.97 Acres was not given on lease by Ayya Pattar to Mallu. So also, in the partition suit, O.S. No.337 of 1989, the court has conclusively held the 7.97 Acres to have devolved upon the legal heirs of Ayya Pattar. The plaintiffs in the partition suit were allotted 2/9 share and 1.77 Acres out of the 7.97 Acres identified, demarcated and delivered to them based on that finding. In the judgment dismissing Ex.FA, this Court had found that the claimant Chami was set up by the three children of
Krishnan @ Kitta. The legal heirs were also found to have committed forgery. On merits, it is contended that the Commission report are being insisted upon with the sole intention of
protracting the proceedings.
15. There cannot be any doubt regarding the
proposition that Commission reports are only pieces of evidence. Normally, the appointment,
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refusal or acceptance of Commission report would not be interfered with either under the revisional or supervisory jurisdiction. But, the instant cases are not the normal ones. The inter parte judgments and orders passed by courts and tribunals have to be looked into for deciding the legality or otherwise of the impugned orders. That exercise I have undertaken in the previous paragraphs.
16. The essential facts discussed above
clearly indicate that the right of the legal heirs of Ayya Pattar over 7.97 Acres of land comprised in Sy.Nos.126/5, 126/2A and 126/2C of Karingarapully Amsom in Kodumbu Village in Palakkad District and the identity of that property stands concluded by the judgment and decree in O.S.No.337 of 1989 and delivery of 1.77 Acres out of that property pursuant to the judgment in Ex.FA No.31 of 2012. In this regard
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it will be worthwhile to read paragraph 7 of the judgment in O.S.No.337 of 1989 extracted hereunder;
_“7. Issue Nos. 1 to 3: The 1[st] defendant, Venkiteswara lyer and Venkitarama lyer are the sons of P. V. Ayya pattar. The plaintiffs are the sons of the 1[st] defendant. Defendants 2 to 8 are the wife and children of Venkitarama Iver. Defendants 9 to 14 are the wife and children of Venkiteswara Iyer. The plaint allegation is that the plaint schedule properties are properties lying adjacent to the agricultural lands that belonged to the family of Ayya Pattar. It is stated that in the replication that the plaint-scheduleproperties are actually the ancestral properties of Ayya Pattar. In the written statement the contention raised is that the plaint schedule properties are the self acquisitions of Ayya Pattar and as such the plaintiffs have no right to share by birth over the properties. I shall consider this contention a little later. In the written statement, a contention is raised by the 15[th] defendant who is the grandson of one Mallu that the plaint schedule properties were in the possession of the family of Mallu from_
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_long back. There is no dispute that the agricultural lands that belonged to the family of Ayya Pattar situated near the plaint schedule properties were leased out to Mallu and Mallu was in possession and enjoyment of the same. According to the 15[th] defendant by or around the same time possession of the plaint schedule properties was also given to the family of Mallu on the understanding that the plaint schedule properties would be sold to him later. Subsequently land legislations were enacted and it was agreed that the plaint schedule properties would be sold to the family of Mallu after the family filed ceiling return. Later Ext.A3 agreement for sale was executed between defendants 1 to 14 on the one side and the 15[th] defendant on the other side in 1982. According to the 15[th] defendant he continued in possession of the plaint schedule properties. In Ext.A3 what is stated is that only the properties scheduled in Ext.A3 agreement for sale were in the possession of Ayya Pattar. After his death the properties are in the possession and enjoyment of defendants 1 to 14. It is further recited in Ext.A3 agreement that the possession of the properties was being given to the 15[th] defendant on the date of_
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_execution of Ext.A3 agreement for sale. In the light of Ext.A3 agreement the 15[th] defendant cannot contend that his family was in possession of the plaint schedule properties from long time back as contended in the written statement. In Ext.A3 agreement plaintiffs are not parties. Their rights if any over the plaint schedule properties will not therefore be affected by the recitals in the agreement. The plaintiffs also produced Ext A4 copy of the order of the Taluk Land Board Palghat dated 24-9-82. The contention of the assessee who was the father of the 15[th] defendant and the son of Mallu was that 7.97 acres of properties comprised in survey Nos. 126/2A, 2C and 5 included in the ceiling case were not held by him but were held by the Land Owner. Land Owner P. V. Damodara Sarma claimed that the said lands were held by his family and the assesses had no tenancy right over the land. The land Board upheld the contention of the assessee for the following reasons. The properties held by Mallu were partitioned between Mallu and his son who was the assessee, and two of his brothers as per partition deed No. 161/53 of the Sub Registrar's Office, Palghat. The properties in question were not included in the_
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_partition deed. Verumpattom right held by Mallu was transferred to the assesses as per sale deed No. 40364. The properties in dispute were not included in the sale deed also. The Land Board observed that all the above transaction were long prior to the coming into force of the K. L R. Act. The assessee had filed a J. form Application before the Land Tribunal Kollengode to get assignment of the properties held by him as tenant under section 72 of the K. L. R. Act. The lands in question were not included in the J. From also. The report of the authorised officer was also relied on by the Taluk Land Board in holding that the properties referred to above were not held by the assessee who is the father of the 15[th] defendant. It is obvious that the 15[th] defendant or his predecessors in interest never claimed possession of the plaint schedule properties prior to the agreement, for sale. The recitals in the agreement for sale are also clear. Therefore at the most the 15[th] defendant can claim that he is in possession of the plaint schedule properties only from the date of Ext. A3 agreement for sale. But such possession cannot but be for and on behalf of the plaintiffs, if as a matter of fact the plaintiffs have right to_
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_share by birth over the plaint schedule properties. In this context it is this aspect of the matter that is important in this case. The genuineness of the agreement dated 3-7-82 is not really in dispute in this case.”_
17. It is also essential to note that the
only contention raised by T.K.Ratnababu, the 15[th] defendant in the suit, was that Ext.A3 agreement of sale dated 31.07.1982, executed in his favour by some of the legal heirs of Ayya Pattar, is valid, the 7.97 Acres covered by that document being the self acquired property of Ayya Pattar. In OP(C) No.2209 of 2012 filed by T.K.Ratnababu and decided along with Ex.FA No.31 of 2012, this Court categorically held that the petitioner has no right, title or interest to resist the execution petitions. It is hence doubtful whether the other legal heirs of Krishan @ Kitta can set up any independent title over the 7.97 Acres, particularly when they are parties to the
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judgment in Ex.FA No.31 of 2012. Yet another crucial factor is the decision of the Taluk Land Board in SM No.1270 of 1977, wherein Krishnan @ Kitta, the predecessor-in-interest of T.K.Ratnababu, T.K.Mohan Babu and
T.K.Ratnakumari, had specifically contended that he has no tenancy right over the 7.97 Acres of land, as the said property was not entrusted to his father Mallu on oral lease. In such
circumstances, the trial court could not have mechanically allowed the prayer for appointment of Advocate Commissioner in O.S.No.15 of 2008 filed by the legal heirs of Ayya Pattar, seeking recovery of 6.20 Acres of land in the possession of T.K.Ratnababu, after delivery of the 1.77
Acres as per the judgment and decree in O.S.No.337 of 1989. The trial court was bound to consider whether the appointment of Advocate Commission would help the court in elucidating
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any matter in dispute. In this context, the prayer in the application for appointment of commission assumes importance. The prayer is to separately identify the properties covered by item No.7 in document No.1345 of 1908, item No.7 in the final decree in O.S.No.17 of 1964 and item No.37 in document No.403/1964 executed by Mallu in favour of Kitta. Only if the court found that such identification is necessary for the purpose of elucidating any matter in dispute before it, the Commission application could have been allowed (see _**Gopal Chettiyar deceased and three others v. P.A.A Shahul Hameed and another [(1988**_
_**SCC OnLine Mad. 80]**_ . Generally, a Commissioner is appointed to assist the court by placing a report of local investigation. However, an order appointing a Commissioner should not become a lever for protracting the litigation. Therefore, in a case like the one at hand, having a long
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drawn litigative history and inter parte judgments/orders, the trial court should have considered all essential factors before allowing the commission applications. Unfortunately, the impugned order (Ext.P7) in O.P.(C) No.2816 of 2014 does not reveal any such exercise having been undertaken by the court. Therefore, I am compelled to set aside the order in I.A.No.1785 of 2014 in O.S.No.15 of 2008 on the files of the Additional Sub Court, Palakkad. Consequently, the Sub Court is directed to reconsider the application for appointment of Commissioner submitted by T.K.Ratnababu, the first defendant in the suit and pass a reasoned order thereon after adverting to the concluded judgments/orders as well as the observations herein.
18. By the impugned order in OP(C) No.1373 of 2015, the learned Sub Judge allowed the application under Order XI Rule 1 CPC filed by the plaintiff in O.S.No.45 of 2015 and directed
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defendants 3 and 4 to answer the interrogatories. It is essential to note that the relief sought in O.S.No.45 of 2015 is to delete the mutation effected in the name of V.D.Prakash and Meenakshi as per Transfer Registry No.1428 of Kodumbu Village Office. Indisputably, the entry is made pursuant to this court's direction in OP(C) No.1239 of 2013. That original petition was filed by the brother of the plaintiff in O.S.No.45 of 2015, who was the 15[th] defendant in O.S.No.337 of 1989. While dismissing OP(C) No.1239 of 2013, this Court came down heavily on the petitioner
therein, for having approached the court without revealing all essential facts and directed to effect delivery of the 1.77 Acres on or before
11.04.2013. A perusal of the interlocutory
application under Order II Rule 1 CPC shows most of the interrogatories pertain to previous litigations, the documents of which can be
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obtained by submitting applications for certified copies. Further, the learned Sub Judge ought to have decided whether the interrogatories are relevant for the purpose of deciding the suit and whether the answers to the interrogatories would aid in speedy disposal of the suit. As held in
## _**Raj Narain v. Indira Nehru Gandhi [(1972) 3 SCC 850],**_
“26. Questions that may be relevant during cross-examination are not necessarily relevant as interrogatories. The only questions that are relevant as interrogatories are those relating to “any matters in question”, The interrogatories served must have reasonably close connection with “matters in question”.
The object of Order XI Rule 1 CPC has
been dealt with in _**Union of India v. Ibrahim**_
## _**Uddin [(2012) 8 SCC 148]**_ , the relevant portion
of which reads as under;
_“21. Order 11 CPC contains certain provisions with the object to save expense by obtaining information as to material facts and to obtain_
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_admission of any fact which he has to prove on any issue. Therefore, a party has a right to submit interrogatories relating to the same matter in issue. The expression “matter” means a question or issue in dispute in the action and not the thing about which such dispute arises. The object of introducing such provision is to secure all material documents and to put an end to protracted enquiry with respect to document/material in possession of the other party. In such a fact situation, no adverse inference can be drawn against a party for non-production of a document unless notice is served and procedure is followed.”_
19. The court below also committed an
illegality by deciding the application under Order XI Rule 1, without passing orders on the application submitted by defendants 3 and 4, requiring the court to decide the
maintainability of the suit as the preliminary issue. For the aforementioned reasons, the order in I.A.No.1227 of 2015 in O.S.No.45 of 2015 is set aside with a direction to reconsider the
interlocutory application and pass a fresh
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reasoned order after passing order on the decision on the maintainability issue raised by defendants 3 and 4.
20. OP(C) No.575 of 2019 has lost its
relevance in view of the decision rendered in OP(C) No.1373 of 2015, as the Sub Court had
refused to vacate the ex parte interim injunction
for reason of this Court's order in O.P.(C) No.1373 of 2015, staying further proceedings in the suit. Since O.P.(C) No.1373 of 2015 itself is disposed of, the interim order granted by this Court does not subsist. Hence, the Sub Court has to necessarily consider I.A.No.402 of 2017 filed in O.S.No.45 of 2015.
21. I find no reason to interfere with the order in I.A.No.526 of 2015, which is under challenge in OP(C) No.464 of 2020, the court below having rightly found that there is no necessity of inspection by Advocate Commissioner
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since the pleadings in the plaint are with respect to an alleged fraud committed by the legal heirs of Ayya Pattar. There is no specific averment in the plaint regarding any dispute as to the identity of the plaint scheduled property.
At the same time, the Commission is sought to identify the property in the possession of the plaintiff and her brothers, with reference to item No.28 in A schedule of the property covered by partition deed No.161 of 1958, item No.37 in assignment deed No.403 of 1964 and the property included in the J Form filed before the
Kollemcode Land Tribunal in O.A.No.2867 of 1976. It is hence evident that the matters sought to be elucidated through the Advocate Commissioner are way beyond the relief sought in the suit. Therefore, the court below was justified in dismissing the application. Hence, OP(C) No.464 of 2020 is dismissed.
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22. The challenge in OP(C) No.1055 of 2019 cannot also be countenanced since the court, in exercise of its discretion, has found the matters elucidated by the Commissioner to be sufficient for deciding the dispute. In this regard, it is essential to note that the prayer in OP(C) No.1055 of 2019 is to set aside the judgment and decrees in O.S.No.337 of 1989 and for a permanent prohibitory injunction restraining the defendants from alienating B Schedule property having an extent of 7.97 Acres, comprised in Re.Sy.Nos.126/5, 126/2A and 126/2C. As rightly held by the court below, the interim commission report contains the details required for deciding the prayers. Therefore, it is not essential to identify the properties based on the title deed Nos.161/1958 and 403/1964 of Palakkad SRO or partition deed No.1345/1908 of Kozhikode SRO and the final decree in O.S.No.17/1964 of the Sub
## O.P.(C) Nos.2816 of 2014 & con.cases
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Court, Kozhikode. Moreover, the property
described as plaint B Schedule was identified by the Advocate Commissioner appointed in O.S.No.337 of 1989 and a portion of that property admeasuring 1.77 Acres demarcated and delivered to the plaintiffs in that suit. Hence, OP(C) No. 1055 of 2019 is also liable to be dismissed.
23. The challenge in OP(C)No. 1033 of 2019
is against the order in I.A.No.616 of 2015 in
O.S.No.45 of 2015. The challenge is found to be unsustainable, O.S.No.45 of 2015 being a suit against the Government for deleting the mutation effected in the revenue records. The order in OP(C) No.1373 of 2013, based on which mutation was effected, was rendered after protracted litigation, during which the property was identified and demarcated. Hence, O.P.(C) No. 1033 of 2019 also dismissed.
## O.P.(C) Nos.2816 of 2014 & con.cases
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In the result, original petitions are decided as under;
**OP(C) No.2816 of 2014:** The order in
I.A.No.1785 of 2014 in O.S.No.15 of 2008 on the
files of the Additional Sub Court, Palakkad is set aside. The court below is directed to reconsider I.A.No.1785 of 2014 in O.S.No.15 of
2008 and pass a reasoned order thereon, after
adverting to the observations in this judgment.
**OP(C) No.1373 of 2015:** The order in
I.A.No.1227 of 2015 in O.S.No.45 of 2015 is set aside. The court below is to reconsider the
interlocutory application and pass a fresh reasoned order, after taking a decision on the maintainability issue raised by defendants 3 and 4.
**OP(C) No.575 of 2019:** The court below is
directed to consider I.A.No.402 of 2017 filed in
O.P.(C) Nos.2816 of 2014 & con.cases
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O.S.No.45 of 2015 and pass appropriate orders thereon.
**OP(C) No.464 of 2020:** Dismissed. **OP(C) No.1055 of 2019:** Dismissed. **OP(C)No. 1033 of 2019:** Dismissed.
Sd/-
**V.G.ARUN JUDGE**
Scl/
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## **APPENDIX OF OP(C) 2816/2014**
## PETITIONER EXHIBITS
EXT.P1 - TRUE COPY OF THE JUDGMENT IN E.F.A. NO.31 OF 2012 DATED 7-8-2012 EXT.P2 - TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE RESPONDENT IN OS NO.15 OF 2008 DATED 30-6-2014
EXT.P3 - TRUE COPY OF THE COMMISSION APPLICATION, IA NO.1785 OF 2014 IN OS NO.15 OF 2008 DATED 30-6-2014 EXT.P4 - TRUE COPY OF THE OBJECTION TO IA NO.1785 OF 2014 IN OS NO.15 OF 2008 DATED 7-7-2014 EXT.P5 - TRUE COPY OF THE JUDGMENT IN OS NO.337 OF 1989, SUB COURT, PALAKKAD DATED 21-10-1991 EXT.P6 - TRUE COPY OF THE ORDER OF THE TALUK LAND BOARD, PALAKKAD IN S.M. NO.1270 OF 1977 DATED 24-9-1982 EXT.P7 - TRUE COPY OF THE ORDER IN IA NO.1785 OF 2014 IN OS NO.15 OF 2008 DATED 13-11-2014
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## **APPENDIX OF OP(C) 1373/2015**
|PETITIONER EXHIBITS|PETITIONER EXHIBITS|
|---|---|
|EXHIBIT P1|TRUE COPY OF THE JUDGEMENT IN Ex FA|
||No.31 of 2012|
|EXHIBIT P2|TRUE COPY OF THE JUDGEMENT IN OS No.|
||337 of 1989, SUB COURT, PALAKKAD|
|EXHIBIT P3|DATED 14-07-2014 IN IA No.3115 of 2011|
||IN OS No.15 OF 2008 OF THE SUB COURT,|
||PALAKKAD|
|EXHIBIT P4|DATED 24-09-1982, TRUE COPY OF THE|
||ORDER OF THE TALUK LAND BOARD,|
||PALAKKAD IN SM No.1270 of 1977|
|EXHIBIT P5|DATED 09-04-2015, TRUE COPY OF THE|
||PLAINT IN OS No.45 of 2015, SUB COURT,|
||PALAKKAD|
|EXHIBIT P6|DATED 26-09-2014, TRUE COPY OF IA|
||No.2718 OF 2014 IN OS 45 OF 2015 SUB|
||COURT PALAKKAD|
|EXHIBIT P7|DATED 28-05-2015, TRUE COPY OF IA|
||No.1227/2015 IN OS NO.45 OF 2015 SUB|
||COURT,PALAKKAD|
|EXHIBIT P8|DATED 1-6-2015, TRUE COPY OF THE|
||OBJECTION FILED TO EXT.P7|
|EXHIBIT P9|DATED 6-6-2015, TRUE COPY OF THE ORDER|
||IN IA No.1227/2015 IN OS No.45 OF|
||2015, SUB COURT, PALAKKAD|
|EXHIBIT P10|DATED 7-3-2017, TRUE COPY OF THE|
||JUDGEMENT OF THIS HON'BLE COURT IN AS|
||No.318 OF 1992|
|EXHIBIT P11|DATED 28-05-2007, TRUE COPY OF THE|
||SALE DEED No.1852 SRO PALAKKAD|
|EXHIBIT P12|DATED 10-06-2008, TRUE COPY OF THE|
||RECTIFICATION DEED No.5127 SRO|
||PALAKKAD|
|RESPONDENT EXHIBITS||
||P1.DATED 07.08.2012 TRUE COPY OF THE|
||JUDGMENT IN EFA NO.31/2012|
||P2.DATED 21.10.1991 TRUE COPY OF THE|
||JUDGMENT IN OS.NO.337/1989 SUB COURT,|
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## PALAKKAD
P3.DATED 14.07.2014, IN IA.NO.3115/2011 IN OS.NO.15/2008 OF THE SUB COURT, PALAKKKAD.
P4.DATED 24.09.2015 TRUE COPY OF THE ORDER OF THE TALUK LAND BOARD, PALAKKAD IN SM.NO.1270/1977
P5.DATED 09.04.2015 TRUE COPY OF THE PLAINT IN OS.NO.45/2015 SUB COURT, PALAKKAD
P6.DATED 26.09.2014 TRUE COPY OF IA.NO.2718/2014 IN OS.NO.45/2015 SUB COURT, PALAKKAD
P7.DATED 28.05.2015 TRUE COPY OF IA.NO.1227/2015 IN OS.NO.45/2015 SUB COURT, PALAKKAD
P8.DATED 01.06.2015, TRUE COPY OF THE OBJECTION FILED TO EXT P7
P9.DATED 06.06.2015 TRUE COPY OF THE ORDER IN IA.NO.1227/2015 IN OS.NO.45/2015 SUB COURT, PALAKKAD
P10.DATED 07.03.2007 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN AS.NO.318/1992
P11.DATED 28.05.2007 TRUE COPY OF THE SALE DEED NO.1852 SRO PALAKKAD
P12.DATED 10.06.2008 TRUE COPY OF THE RECTIFICATION DEED NO.5127 SRO PALAKKAD
O.P.(C) Nos.2816 of 2014 & con.cases
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## **APPENDIX OF OP(C) 575/2019**
|PETITIONER|EXHIBITS|
|---|---|
|EXHIBIT P1|DATED 9/4/2014, TRUE COPY OF THE|
||PLAINT IN O.S.NO.300 OF 2014 ON THE|
||FILE OF THE MUNSIFF COURT PALAKKAD|
||RENUMBERED AS O.S.NO.465 OF 2015 OF|
||THE ADDL.SUB COURT, PALAKAKD.|
|EXHIBIT P2|DATED NIL 5-2014, TRUE COPY OF THE|
||WRITTEN STATEMENT FILED BY DEFENDANTS|
||3 AND 4 IN O.S.NO.300 OF 2014 ON THE|
||FILE OF THE MUNSIFF COURT PALAKKAD|
||RENUMBERED AS O.S.NO.45 OF 2015 OF THE|
||ADDL. SUB COURT, PALAKAKD.|
|EXHIBIT P3|DATED 9/4/2014, TRUE COPY OF|
||I.A.NO.1313 OF 2015 IN O.S.NO.300 OF|
||2014 ON THE FILE OF THE MUNSIFF COURT|
||PALAKAKD RENUMBERED AS O.S.NO.45 OF|
||2015 OF THE SUB COURT, PALAKKAD.|
|EXHIBIT P4|DATED 19/4/2014, TRUE COPY OF THE|
||ORDER IN I.A.NO.1313 OF 2014 IN|
||O.S.NO.300 OF 2014 ON THE FILE OF THE|
||MUNSIFF COURT PALAKKAD RENUMBERED AS|
||O.S.NO.45 OF 2015 OF THE ADDL.SUB|
||COURT, PALAKKAD.|
|EXHIBIT P5|DATED 6/2/2017, TRUE COPY OF|
||I.A.NO.402 OF 2017 IN O.S.NO.45 OF|
||2015 OF THE ADDL.SUB COURT, PALAKKAD.|
|EXHIBIT P6|DATED 20/2/2017, TRUE COPY OF THE|
||ORDER IN I.A.NO.402 OF 2017 IN|
||O.S.NO.45 OF 2015 OF THE ADDL.SUB|
||COURT, PALAKKAD.|
|EXHIBIT P7|DATED 21/12/2018, TRUE COPY OF THE|
||JUDGMENT IN C.M.A.NO.24 OF 2017 ON THE|
||FILE OF THE ADDL.DISTRICT JUDGE'S|
||COURT-II, PALAKKAD.|
## O.P.(C) Nos.2816 of 2014 & con.cases
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## **APPENDIX OF OP(C) 1033/2019**
|PETITIONER|EXHIBITS|
|---|---|
|EXHIBIT P1|TRUE COPY OF THE PLAINT IN|
||O.S.NO.300/2014 ON THE FILE OF THE|
||PRINCIPAL MUNSIFF'S COURT,PALAKKAD|
||WHICH WAS SUBSEQUENTLY RENUMBERED AS|
||O.S.NO.45/2015 ON THE FILE OF THE|
||COURT OF THE ADDITIONAL SUBORDINATE|
||JUDGE PALAKKAD|
|EXHIBIT P2|TRUE COPY OF THE WRITTEN STATEMENT|
||PREFERRED BY THE DEFENDANTS 3 AND 4 IN|
||O.S.NO.300/2014 ON THE FILE OF THE|
||PRINCIPAL MUNSIFFS COURT,PALAKKAD|
||WHICH WAS SUBSEQUENTLY RENUMBERED AS|
||O.S.NO.45/2015 ON THE FILE OF THE|
||COURT OF THE ADDITIONAL SUBORDINATE|
||JUDGE, PALAKKAD|
|EXHIBIT P3|TRUE COPY OF THE ORDER IN|
||I.A.NO.1227/2015 IN O.S.NO.45/2015|
|EXHIBIT P4|TRUE COPY OF THE ORDER OF INJUNCTION|
||IN I.A.NO.1313/2014 IN O.S.NO.300/2014|
||GRANTED BY THE COURT OF THE PRINCIPAL|
||MUNSIFF,PALAKKAD|
|EXHIBIT P5|TRUE COPY OF I.A.NO.402/2017 IN|
||O.S.NO.45/2015 SEEKING TO VACATE THE|
||ORDER OF INUNCTION|
|EXHIBIT P6|TRUE COPY OF THE ORDER DATED|
||20.02.2017 IN I.A.NO.402/2017IN|
||O.S.NO.45/2015 ON THE FILE OF THE|
||COURT OF THE ADDITIONAL SUBORDINATE|
||JUDGE, PALAKKAD|
|EXHIBIT P7|TRUE COPY OF THE JUDGMENT DATED|
||21.12.2018 IN C.M.A.NO24/2017 ON THE|
||FILE OF THE COURT OF THE SECOND|
||ADDITIONAL DISTRICT JUDGE,PALAKKAD|
|EXHIBIT P8|TRUE COPY OF THE ORDER IN|
||I.A.NO.616/2015 IN O.S.NO.45/2015 DATE|
||01.03.2019 PALAKKAD|
O.P.(C) Nos.2816 of 2014 & con.cases
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## **APPENDIX OF OP(C) 1055/2019**
PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.222/2015 ON THE FILE OF THE COURT OF THE ADDITIIONAL SUBORDINATE JUDGE, PALAKKAD. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.222/2015 FILED BY THE DEFENDANTS 1 TO 14. EXHIBIT P3 TRUE COPY OF I.A.NO.3801/2015 IN O.S.NO.222/2015 EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE DEFENDANTS IN I.A.NO.3801/2015. EXHIBIT P5 TRUE COPY OF I.A.NO.689/2016 SEEKING TO RECALL THE ORDER APPOINTING ADVOCATE COMMISSIONER. EXHIBIT P6 TRUE COPY OF THE INTERIM REPORT OF ADVOCATE COMMISSIONER DATED 14-01-2016 EXHIBIT P7 TRUE COPY OF THE ORDER IN O.P. (TRANSFER) NO.66/2018 ON THE FILE OF THE DISTRICT COURT, PALAKKAD. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 01-032019 IN I.A.NO.3801/2015 IN O.S.NO.222/2015 ON THE FILE OF THE COURT OF THE ADDITIONAL SUBORDINATE JUDGE, PALAKKAD
O.P.(C) Nos.2816 of 2014 & con.cases
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## **APPENDIX OF OP(C) 464/2020**
|PETITIONER|EXHIBITS|
|---|---|
|EXHIBIT P1|TRUE COPY OF THE PLAINT IN OS|
||NO.38/2015 (PREVIOUS OS 320/2013) OF|
||ADDITIONAL SUBORDINATE JUDGE,|
||PALAKKAD.|
|EXHIBIT P2|TRUE COPY OF THE WRITTEN STATEMENT IN|
||OS NO.38/2015 (320/2013).|
|EXHIBIT P3|TRUE COPY OF THE REPLICATION FILED BY|
||THE PETITIONER.|
|EXHIBIT P4|TRUE COPY OF THE IA 527/2015 PREFERRED|
||BY THE RESPONDENTS.|
|EXHIBIT P5|TRUE COPY OF IA NO.526/2015 PREFERRED|
||BY THE PETITIONER.|
|EXHIBIT P6|TRUE COPY OF THE ORDER IN IA|
||NO.527/2015 IN OS NO.38/2015.|
|EXHIBIT P7|TRUE COPY OF THE ORDER DATED|
||06.04.2019 IN IA NO.526/2015 IN OS|
||NO.38/2015.|