V. Jaikumar v. G.P. Selvaraj and others, W.P.(C) No. 238 of 2010

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** ## **TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932** ## **WP(C).NO. 238 OF 2010(O)** **-----------------------------------OS.591/2008 OF ADDL.SUB COURT, PALAKKAD** **PETITIONER(S):** **----------------------** **V. JAIKUMAR, S/O. K. VENUGOPAL, NAICKER THOTTAM, NAICKER PADI, AGALI, MANNARKAD TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN** ## **RESPONDENT(S):** **-------------------------** **1. G.P. SELVARAJ, S/O. PONNUSAMY, NAICKDER PADI, AGALI, MANNARKAD TALUK, PALAKKAD DISTRICT.** **2. SEBASTIAN ALIAS DEVASSIKUTTY, S/O. KUNCHACKO, PALLIPPADOM HOUSE, KANJOORKARAYIL, KIZHAKKUMBHAGOM VILLAGE, ALUVA TALUK.** ## **3. P.C. CHACKO, S/O. -DO-** **4. M. PRABHASANKAR, ADVOCATE, PALAKKAD, COURT RECEIVER APPOINTED BY THE ADDITIONAL SUB COURT, PALAKKAD.** **ADV. SRI.K.MOHANAKANNAN FOR R2 SMT.A.R.PRAVITHA FOR R2 SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 SRI.P.S.APPU FOR R1 SRI.A.R.NIMOD FOR R1 SRI.C.A.ANOOP FOR R1 SRI.K.MOHANAKANNAN FOR R3** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **--------------** ## **PETITIONER'S EXHIBITS: ----------------------------------** **EXHIBIT P1 TRUE COPY OF DOCUMENT NO.1724 OF 1953 OF SRO MANNARGHAT, DATED 25.6.1953.** **EXHIBIT P2 TRUE COPY OF THE ORDER OF THE TALUK LAND BOARD, MANNARGHAT DATED 30.8.1979 IN S.M. NO.696/1974. EXHIBIT P3 TRUE COPY OF THE SKETCH OF SY.NO.583 OF AGALI VILLAGE. EXHIBIT P4 TRUE COPY OF THE SKETCH DEMARCATING 10 ACRES. EXHIBIT P5 TRUE COPY OF THE RECEIVER'S REPORT NO.3/2009 IN O.S. NOS.S590 AND 591 OF 2008. EXHIBIT P6 TRUE COPY OF REPORT NO.4/2009. EXHIBIT P6(A) TRUE COPY OF THE SKETCH ENCLOSED WITH EXT.P6.** **EXHIBIT P7 TRUE COPY OF THE APPLICATION I.A. NO.3441 OF 2009 IN O.S. NO.591 OF 2008 DAT3D 23.10.2009.** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P(C) NO.31137 OF 2009 DATED 3.11.2009. EXHIBIT P9 TRUE COPY OF THE APPLICATOIN MADE BY THE PETITIONER BEFORE RECEIVER DATED 6.11.2009. EXHIBIT P10 TRUE COPY OF REPORT NO.5/2009 DATED 3.11.2009. EXHIBIT P11 TRUE COPY OF REPORT NO.6/2009 DATED 7.11.2009. EXHIBIT P12 TRUE COPY OF THE APPLICATION I.A. NO.3843 OF 2009 IN O.S. NO.591 OF 2008 DATED 17.11.2009. EXHIBIT P13 TRUE COPY OF OBJECTION TO EXT.P7 FILED BY RESPONDENT NO.3 DATED 4.11.2009.** **EXHIBIT P14 TRUE COPY OF OBJECTION TO EXT.P12 FILED BY RESPONDENT NO.3 DATED 20.11.2009.** **EXHIBIT P15 TRUE COPY OF COMMON ORDER IN I.A. NO.3441 AND 3843 OF 2009 IN O.S. NO.591 OF 2008 DATED 4.12.2009.** **EXHIBIT P16 TWO PHOTOGRAPHS SHOWING THE EXISTENCE OF THE ROAD. EXHIBIT P17 PHOTOGRAPH INDICATING THE GATE OF THE ROAD SIDE.** **EXHIBIT P18 PHOTOGRAPH SHOWING THE SOUTHERN SIDE OF THE FENCING BLOCKING ACCESS TO THE PETITIONER'S PROPERTY.** **RESPONDENT'S EXHIBITS: ----------------------------------NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.238 of 2010 ==================================== Dated this the 13[th] day of July, 2010** ## **J U D G M E N T** Writ Petition is in challenge of common order passed by learned Sub Judge, Palakkad on I.A. Nos.3441 and 3843 of 2009 in O.S. No.591 of 2008. As per Ext.P7 (I.A. No.3441 of 2009) petitioner requested learned Sub Judge to issue appropriate orders to safeguard right of petitioner and members of his family to continue to use petition schedule property (described as a way having width of 7 metres, length of 13 metres and bounded by properties of Sundar Raj on the east, Venugopal on the south, Narayanaswamy on the west and Mannarcaud-Coimbatore road on the north), for short, “the disputed way” to reach their farm land, and to transport farm products in motor vehicles. Request made in Ext.P12 (I.A. No.3849 of 2009) is to appoint an Advocate Commissioner to identify the disputed way. It is the case of petitioner that on the immediate east of property belonging to him and other members of the Hindu Undivided Family (for short, “the HUF”) is the Siruvani River and the only access to the said property (plot ‘C’ in Ext.P4, sketch) is the disputed way. Petitioner claimed that the entire property of about 100 acres in Sy.Nos.583/1 to 10 ## **W.P(C) No.238 of 2010** ## -: 2 :- of Agali Village was taken on lease from Mooppil Nayar as per lease deed No.1724 of 153 dated 25.06.1953 in the name of Narayanaswamy, the then eldest member of HUF and while so, as per an oral partition 10 acres shown in Ext.P4, sketch as plot C was allotted to the share of Venugopalan, father of petitioner and others. That oral partition and allotment of 10 acres were approved by the Taluk Land Board, Mannarcaud in SMP No.679 of 1974. In Ext.P4, the said plot C is shown as bounded by plot 'A' allotted to Narayanaswamy on the west, rest of plot 'A' and plot 'F' (alloted to Sundar Raj) on the north, plot 'D' allotted to Selvaraj on the south and Siruvani River on the east. The disputed way is shown in Ext.P4 as originating from plot 'C' and leading to the Mannarcaud-Coimbatore road on the extreme north. It is the case of petitioner that respondent No.1 filed O.S. No.591 of 2008 against respondent Nos.2 and 3 seeking a declaration that the sale deeds and lease deed executed by him in favour of respondent Nos.2 and 3 are invalid and for consequential injunction. Respondent No.2 filed O.S.No.590 of 2008 against respondent No.1. In O.S. No.591 of 2008 learned Sub Judge appointed a Receiver (Respondent No.4) to take possession of the property referred to therein. Receiver took possession of the ## **W.P(C) No.238 of 2010** ## -: 3 :- property including the disputed way (which according to the petitioner was not subject matter of the suits). Petitioner asserted that subject matter of the said suits was only plot 'A' in Ext.P4. It is the case of petitioner that right from the time of lease as per document No.1724 of 1953, before and thereafter there were several roads in existence in the 100 acres which were being used by the members of the HUF and public at large and through the disputed way petitioner has a right of access to plot 'C' in Ext.P4 which property devolved on petitioner and others on the death of Venugopal. Alleging that Receiver has taken possession of the disputed way also, petitioner filed Ext.P7, application before learned Sub Judge for a direction as above stated and I.A. No.3843 of 2009 to appoint an Advocate Commissioner to identify the disputed way. Learned Sub Judge as per the impugned common order held that it is not clear from the averments in I.A.No.3441 of 2009 (Ext.P7) what exactly is the right claimed by petitioner, no evidence in that line is adduced and declined to grant relief prayed for but allowed the application granting permission to the petitioner to sue the Receiver, respondent No.4 in separate suit. Exhibit P12, application for the issue of commission was dismissed. The common order is under **W.P(C) No.238 of 2010** -: 4 :- challenge in this Writ Petition. 2. Learned Senior Advocate, Shri S.V. Balakrishna Iyer appearing for petitioner contended that learned Sub Judge failed to note that as per the averments in I.A.No.3441 of 2009 (Ext.P7) and schedule description therein disputed way did not form part of subject matter of O.S. Nos.590 and 591 of 2008 and hence learned Sub Judge was not correct in directing the Receiver (Respondent No.4) to take possession of the disputed way. It is also contended that at any rate averments in I.A. No.3441 of 2009 (Ext.P9) are sufficient enough to make out a claim of easement by way of necessity or at least quasi easement in relation to the disputed way in so far as it is stated in the affidavit in support of the application that right from the lease and thereafter members of the HUF including petitioner were in use of the disputed way (which formed part of the 100 acres over which leave was created) and continued that user even after oral partition allotting plot ‘C’ to the father of petitioner. It is the contention of learned Senior Advocate that there are sufficient averments in I.A. No.3441 of 2009 (Ext.P7) that except the disputed way petitioner and other co-owners of plot 'C' of Ext.P4, sketch have no other access to that plot, they have been using **W.P(C) No.238 of 2010** ## -: 5 :- the disputed way before and after the oral partition for ingress and egress to plot 'C' from the Mannarcaud-Coimbatore road and those averments are sufficient to make out a case of easement by way of necessity or quasi easement. These matters are not considered by the learned Sub Judge. According to the learned Senior Advocate it is not the case of petitioner that Receiver (Respondent No.4) has done anything unauthorisedly, Receiver has taken possession of the disputed way only as per orders passed by the learned Sub Judge and hence it is not a case where petitioner has to work out his remedy against Receiver (Respondent No.4) in a separate suit. Learned Senior Advocate argued that learned Sub Judge ought to have allowed Exts.P7 and P12, applications. 3. Shri V. Chitambaresh, learned Senior Advocate appearing for respondent No.1 raised a preliminary objection to the maintainability of the Writ Petition. It is argued that order allegedly removing petitioner from possession of the disputed way and impugned order on I.A. No.3843 of 2009 are covered by Rule 1(b) and sub-rule (2) of Order XL of the Code of Civil Procedure (for short, “the Code”) which are appealable under Order XLIII Rule 1(s) of the Code and hence this Court shall not exercise its ## **W.P(C) No.238 of 2010** ## -: 6 :- supervisory jurisdiction under Article 227 of the Constitution of India. Learned Senior Advocate has placed reliance on the decisions in **Chiruthakutty v. Chandukutty** (1958 KLT 204), **Hiralal Patni v. Loonkaran Sethiya** (AI 1962 SC 21), **Raghavan Nair v. Appu Kidavu** (1979 KLT 458) and **Madhavan Sunanda v. Krishnan Chethoharan** (AIR 1988 Kerala 228) in support of his contention that the order under challenge is appealable under Order XLIII Rule 1(s) of the Code. Alternatively it is argued that going by the order under challenge and in particular paragraph 16 of the said order that there was no valid plea made by petitioner to be enquired into by the learned Sub Judge, it is not clear what exactly is the right claimed by petitioner and in the circumstances court below though ought to have dismissed I.A. No.3441 of 2009 in toto was kind enough to permit petitioner to sue the Receiver (Respondent No.4) in a separate proceeding and establish right claimed by him. According to the learned Senior Advocate, Writ Petition deserves a dismissal. Learned counsel for respondent Nos.2 and 3 supported arguments advanced by the learned Senior Advocate for respondent No.1. ## **W.P(C) No.238 of 2010** -: 7 :- 4. Order XL Rule 1 of the Code empowers the court when it appears to it to be just and convenient to appoint a Receiver. Rule 1(b) empowers the court to remove any person from the possession or custody of “the property”. Sub-rule (2) states that nothing in Rule (1) shall authorise the court to “remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove”. According to the learned Senior Advocate appearing for respondent No.1 going by the averments in I.A. No.3441 of 2009 (Ext.P7) petitioner has been removed from possession or use of the disputed way and as such order of removal comes Order XL Rule 1(b) of the Code in which case remedy is to file appeal under Order XLIII Rule 1(s) of the Code and not to file a Writ Petition. 5. Argument is certainly attractive and requires deeper consideration. Going by sub-rule (2) of Rule (1) of Order XL of the Code power under Rule 1 cannot be exercised to remove any person from possession or custody of property of whom any party to the suit has not a present right so to remove. Court has the power to remove any person from possession or custody of property but not a person whom any party to the suit has no present right to so remove. For instance, the court cannot **W.P(C) No.238 of 2010** ## -: 8 :- remove a person who has a paramount title over the property as against parties to the suit, from possession or custody of the property. In cases covered by Rule 1 of Order XL, an appeal is provided under Order XLIII Rule 1(s) of the Code. But question arises whether order removing petitioner from possession or preventing his user of the disputed way or the order on Ext.P7, application falls under Rule 1(b) or sub-rule (2) of Order XL of the Code so that appeal is the remedy. Rule 1(b) of Order XL states about removal of any person from the possession or custody of “the property” (emphasis supplied). There can be no doubt that “property” referred to in sub-rule (2) is “the property” referred to in Rule 1(b). Order XL Rule 1(b) in my view can and shall apply only to “the property”, i.e., property which is subject matter of the suit. Otherwise there was no necessary to give the article “the” before the word “property” in Rule 1(b) of Order XL. Hence the order contemplated in Rule 1(b) and sub-rule (2) of Order XL and which is appealable under Order XLIII Rule 1(s) should relate to removal of a party or other person from possession or custody of property which is subject matter of the suit. Reason also persuades me to think so. For, notwithstanding whether a third person has a paramount title or not as against any of the parties ## **W.P(C) No.238 of 2010** -: 9 :- to a suit, court is not vested with the power to remove such person from possession or custody of property which is not subject matter of the suit. I am not persuaded to think that it is within the power of court to authorise removal of any party or other person in possession of a property which is not the subject matter of the suit and take possession of such property. 6. Decisions relied on by the learned Senior Advocate do not take any different view in that regard. In **Chiruthakutty v. Chandukutty Nambiar** (supra) in paragraph 3 it is stated that when property of a third party is interfered with by an officer of court like the Receiver, party has ordinarily two remedies. He may apply to the court for a summary order restraining the Receiver from interfering or may ask leave of the court to sue the Receiver and restrain him from interfering and for any other appropriate relief. It is held that order under Rule 1(b) of Order XL is appealable under Order XLIII Rule 1(s) of the Code. But that case concerned claim of a third party over an item of property which was subject matter of the suit. In **Hiralal Patni v. Loonkaran Sethiya** (supra) in paragraph 13 after referring to sub-rule (2) of Rule 1 of Order XL it is stated that Receiver is an officer or representative of court and he functions under ## **W.P(C) No.238 of 2010** ## -: 10 :- directions and that court may for the purpose of enabling Receiver to take possession and administer the property, by order remove any person from the possession or custody of the property. It is also stated that such power shall not be exercised if the plaintiff in suit has not a present right to remove such third person from the property but sub-rule (2) cannot apply if removal is of a party to the suit. There again, property involved was subject matter of the suit. In **Raghavan Nair v. Appu Kidavu** (supra) in paragraph 14 after referring to Order XL Rule 1(2) it is stated that the rule will enable a court to hold an enquiry when a third person in possession of a property “in respect of which a Receiver was appointed” objected to deliver possession to the Receiver with a view to ascertain whether he was liable to be removed from present possession of the property (which was subject matter of the suit). The decision in **Madhavan** ## **Sunanda v. Krishnan Chethoharan** (supra) also does not deviate from the above view. In my view, orders contemplated under Rule 1 of Order XL and which are made appealable under Order XLIII Rule 1(s) of the Code concern subject matter of the suit. I am unable to accept the contention of learned Senior Advocate, Shri V.Chitambaresh that even if Receiver has removed ## **W.P(C) No.238 of 2010** ## -: 11 :- a third party from possession of a property which is not subject matter of the suit Order XL Rule 1(b) and consequently Rule 1(2) shall apply. Even otherwise if the order impugned is apparently illegal and/or unjust and the subordinate court has refused to exercise jurisdiction conferred on it and instead has relegated the person aggrieved by its own action of taking possession or preventing user of a property (by a third party) which has not part of subject matter of the suit, it is open to this Court to correct that mistake in the exercise of its supervisory jurisdiction under Article 227 of the Constitution. 7. Then the question is whether court below was justified on the facts and circumstances of the case in directing petitioner to institute a separate suit by granting permission to sue the Receiver (Respondent No.4). Learned Senior Advocate has taken me through the various reports submitted by the Receiver. It is seen that Receiver was not able to identify the suit property even with assistance of a Surveyor and a report to that effect was submitted to the learned Sub Judge. It is seen from the report that property was identified and taken possession by the Receiver as pointed out by respondent Nos.2 and 3. Respondent No.1plaintiff in O.S. No.591 of 2008 was nowhere in the picture. It ## **W.P(C) No.238 of 2010** ## -: 12 :- would appear that property was taken possession by the Receiver as pointed out by respondent Nos.2 and 3. Though it is not so specifically stated, it is not as if no claim of right is discernible from the affidavit in support of I.A. No.3441 of 2009. It is alleged that right from the lease and thereafter petitioner and other members of the HUF and others were using the disputed way. It is stated that even after the oral partition petitioner and other co-owners of plot 'C' in Ext.P4, sketch were using the disputed way for ingress and egress to that property. It is possible to discern from the said averments a claim of easement by way of necessity or a quasi easement. It is not necessary for me to enter into a finding in that regard in view of the ultimate direction I propose to issue in the matter and since claim of right made by petitioner is to be decided by the learned Sub Judge. 8. Learned Senior Advocate appearing for respondent No.1 has a further contention that though subsequent to the common order under challenge in this Writ Petition learned Sub Judge has disposed of the suits and hence learned Sub Judge has become functus officio so far as Exts.P7 and P12, applications are concerned. 9. It is not disputed that in O.S.No.591 of 2008 a decree ## **W.P(C) No.238 of 2010** ## -: 13 :- has been granted in favour of respondent No.1 setting aside the assignment deeds and lease deeds referred to therein and allegedly executed in favour of respondent Nos.2 and 3 while O.S. No.590 of 2009 ended in a dismissal. Learned Sub Judge disposed of those suits after learned Sub Judge disposed of Exts.P7 and P12, applications by the impugned common order under challenge in this Writ Petition. Petitioner is not a party to the suit. He has made a claim over the disputed way pleading that it is not part of the subject matter of the suit and alternatively that himself and other co-owners have a right of access through the disputed way. That application has to be treated as a claim petition. Subsequent disposal of the suits cannot affect jurisdiction of the court to decide the claim. The expression “functus officio” is of Latin origin. Trayner’s Latin Maxims, 4[th] Edn., gives that expression the following meaning: “Having discharged his official duty. This is said of any one holding a certain appointment, when the duties of his office have been discharged. Thus a Judge, who has decided a question brought before him, is functus officio and cannot review his own decision.” ## **W.P(C) No.238 of 2010** -: 14 :- In Wharton’s Law Lexicon, 14[th] Edn., the expression ‘functus officio’ is given the meaning, “A person who has discharged his duty, or whose office or authority is at an end.” P.Ramanatha Aiyar’s Law Lexicon gives the expression the meaning, “A term applied to something which once has had a life and power, but which has become of no virtue whatsoever. Thus when an agent has completed the business which he was entrusted his agency is functus officio.” The Author also refers to the meaning (of the expression) given in _**Board of School Trustees of Washington City Aministrator Unit v. Benner**_ (222 NC 566) thus, “Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority.” 10. True that the two suits are disposed of by learned Sub ## **W.P(C) No.238 of 2010** ## -: 15 :- Judge but Exts.P7 and P12, applications were filed when the suits were pending before learned Sub Judge. The suits are disposed of only after learned Sub Judge passed the impugned common order. The mere fact that after disposal of Exts.P7 and P12, applications, the suits are disposed of does not mean that learned Sub Judge has become 'functus officio' so far as these applications (of which, Ext.P7 application is in form of a claim petition) are concerned. Viewed in that line contention of learned Senior Advocate for respondent No.1 that the learned Sub Judge has become functus officio and hence cannot consider Exts.P7 and P12, applications afresh cannot be accepted. Petitioner has a grievance that by the order of learned Sub Judge, Receiver (Respondent No.4) has prevented him and other persons from using the disputed way which according to him is not part of subject matter of the suits and that petitioner and others have no other means of access to plot 'C' of Ext.P4, sketch. Petitioner has produced certain photographs to show the difficulties being experienced by petitioner and others. I think, it may not be proper for me to refer to the merit of the claim made by petitioner since that is a matter to be decided by the learned Sub Judge. Having gone through the averments in the affidavit in support of ## **W.P(C) No.238 of 2010** ## -: 16 :- I.A. No.3441 of 2009 (Ext.P7) and the order under challenge and on hearing learned Senior Advocates and learned counsel for respondent Nos.2 and 3 I consider it a fit case where learned Sub Judge ought to have conducted an enquiry as provided under law into the claim made by petitioner rather than relegating him to another suit. Having regard to the facts and circumstances of the case I am persuaded to hold that order under challenge cannot be sustained and is liable to be set aside. Consequently the applications (Exts.P7 and P12) are to be sent back to the learned Sub Judge for fresh decision after conducting appropriate enquiry. Resultantly, this Writ Petition is allowed. Common order on I.A. Nos.3441 and 3843 of 2009 is set aside and those applications are remitted to the court of learned Sub Judge for fresh decision after conducting enquiry as provided under law giving both sides opportunity to adduce evidence. Parties shall appear in the court below on 12.08.2010. ## **THOMAS P. JOSEPH, JUDGE.** vsv