Allowed

Thankam Ramachandran v. Raghuraman

Kerala HC6 Aug 2012OP(C)/1673/2012

Case brief

AI extract

What is this about?

The Kerala High Court accepted a settlement agreement reached between the petitioners and respondents in a property partition suit. The court accepted the agreed share list and plans, directed the trial court to pass a final and supplementary final decree accordingly, and set aside the impugned order challenging the Advocate Commissioner's report while retaining its valuation value for stamp duty

What did the court decide?

Original petition disposed of by accepting settlement; directions issued to Sub Judge to pass final and supplementary final decree in accordance with settlement; Advocate Commissioner's report set asi

Thankam Ramachandran Vs Raghuraman — Partition | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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MONDAY, THE 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934

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OP(C).NO. 1673 OF 2012 (O)

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--------------------------

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I.A. NO.1701 OF 2010 IN I.A. NO.1666 OF 2001 IN OS.21/1998 OF SUB COURT, TIRUR

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PETITIONER(S):

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1. THANKAM RAMACHANDRAN, AGED 62 YEARS W/O.LATE RAMACHANDRAN NAIR, 1ST BLOCK, 5B BRINDAVAN, 175 EVR LINE, PH ROAD KILPARK,CHENNAI.

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2. RENUKA RAMACHANDRAN D/O.LATE RAMACHANDRAN NAIR, 1ST BLOCK, 5B BRINDAVAN, 175 EVR LINE, PH ROAD KILPARK, CHENNAI (PETITIONERS THROUGH POWER OF ATTORNEY HOLDER -K.UNNIKRISHNAN S/O.MADHAVA MENON, PADMA, ADYITT LANE POOTHOLE, TRICHUR - 4).

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BY ADVS.SRI.SAJU.S.A SMT.MEENA.A. SRI.K.C.KIRAN

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RESPONDENT(S):

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1. RAGHURAMAN S/O.LATE KAMALAKSHY AMMA, PUTHENPURA HOUSE KUTTIPPURAM P.O., MALAPPURAM DISTRICT,PIN - 679 571.

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O.P(C) No.1673 of 2012

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2. SHYLAJA D/O.LATE KAMALAKSHY AMMA, PUTHENPURA HOUSE KUTTIPPURAM P.O., MALAPPURAM DISTRICT,PIN - 679 571.

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ADDITIONAL RESPONDENT IMPLEADED:

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---------------------------------------------------------

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3. P.K. ANWAR, S/O.KUNJHIBAVA, KUTTAMANGALAM, EDATHIRUTHI, THRISSUR.

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ADDITIONAL THIRD RESPONDENT IS IMPLEADED AS PER ORDER DATED 06.08.2012 ON I.A. NO.10861 OF 2012

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BY ADV. SRI.SANTHEEP ANKARATH BY ADV. SRI.SUMODH MADHAVAN NAIR BY ADV. SRI.P.K.MOHANAN(PALAKKAD)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX

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(O.P(C) NO.1673 OF 2012)

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PETITIONER(S)' EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE GOVERNMENT NOTIFICATION WITH RESPECT TO THE LAND VALUE PUBLISHED IN KERALA GAZETTE. EXHIBIT P2 TRUE COPY OF THE PLAN AND REPORT FILED BY THE ADVOCATE COMMISSIONER DATED 16.12.2008. EXHIBIT P3 TRUE COPY OF I.A. NO.227 OF 2009 IN O.S. NO.21 OF 1984 DATED 21.1.2009. EXHIBIT P4 TRUE COPY OF REPORT FILED BY ADVOCATE P.VISWANATHAN DATED 21.1.2010. EXHIBIT P5 TRUE COPY OF THE REPORT OF COMMISSIONER OBTAINED ON THE TRIAL SIDE IN O.S. NO.21 OF 1984 DATED 17.8.1984. EXHIBIT P6 TRUE COPY OF I.A. NO.1701 OF 2010 DATED 16.3.2010. EXHIBIT P7 TRUE COPY OF THE ORDER ON DATED 24.2.2012 DISMISSING I.A. NO. 1701 OF 2010.

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RESPONDENT(S)' EXHIBITS:

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EXHIBIT R2(A) TRUE COPY OF PROPERTY SCHEDULE AND PLAN PREPARED FOR THE SAKE OF SETTLEMENT.

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TRUE COPY

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P.S. TO JUDGE

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THOMAS P.JOSEPH, J.

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==================================== O.P(C) No.1673 of 2012 ====================================

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Dated this the 06^th day of August, 2012

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J U D G M E N T

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Additional third respondent is impleaded as per the order passed this day on I.A. No.10861 of 2012.

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Additional third respondent appeared through counsel.

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This Original Petition is in challenge of Ext.P7, order

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passed by the learned Additional Sub Judge, Tirur on I.A.No.1701 of 2010 in I.A. No.1666 of 2001 in O.S. No.21 of 1984.

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The learned Sub Judge passed a preliminary decree in O.S. No.21 of 1984. Respondents 1 and 2 filed I.A. No.1666 of 2001 for passing the final decree. Exhibit P4 is the report submitted by the Advocate Commissioner in the trial court. Petitioners filed I.A. No.1701 of 2010 to set aside Ext.P4, report on various grounds including that no share was allotted to the petitioners in the property at Kuttippuram and challenging valuation of the properties. There was also a challenge to the valuation of the buildings and at any rate a direction to allot landed property for the excess amount which the petitioners were made liable to pay to respondents 1 and 2. The learned Sub Judge

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O.P(C) No.1673 of 2012

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dismissed I.A. No.1701 of 2010 by Ext.P7, order. Thus Ext.P7, order is under challenge.

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Now the question is whether Ext.P4, report is liable to be set aside on the various grounds urged by the petitioners in this Original Petition. After several rounds of litigation between the parties and their counsel, they have now come up with a settlement of all disputes. It is pursuant to that settlement that the additional 3^rd respondent is impleaded vide order on I.A. No.10861 of 2012.

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Respondents 1 and 2 have filed I.A. No.10506 of 2012 reporting settlement between the parties and requesting to receive additional document. Additional document produced ([Ext.R2(a]) is schedule of properties and plan as per the room allowed in the preliminary decree. Parties have reached an agreement as to allotment of various shares and accordingly prepared a share list and plans ([Ext.R2(a]).

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Power of Attorney holder of petitioners has filed a counter affidavit in I.A. No.10506 of 2012 where he has stated that petitioners are accepting the settlement vide Ext.R2(a) produced by respondents 1 and 2 and requesting that the Original Petition may be disposed of in tune with the settlement with a

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O.P(C) No.1673 of 2012

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direction to the learned Sub Judge to pass final decree in terms of the said settlement.

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So far as the additional 3^rd respondent (assignee of a portion from the petitioners) is concerned he in support of I.A. No.10861 of 2010 (for his impleadment as additional 3^rd respondent) has stated that he agrees with the settlement reached between the petitioners and respondents 1 and 2.

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Thus the parties here to have agreed to the settlement and for division of properties as per Ext.R2(a).

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The learned counsel for petitioners has pointed out that in plan No.2 (appended to the share list) the Orange shaded portion is allotted to respondents 1 and while the Green shaded portion is allotted to the petitioners. But plan No.2 does not show a way provided for access to the Green shaded portion.

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The learned counsel for respondents 1 and 2 submitted that there is already a way in existence along the side of the Orange shaded portion to the Green shaded portion and in case it is shown that there is no such way, respondents 1 and 2 are willing to provide a ten (10) feet way along the eastern side of the Orange shaded portion reaching upto the Green shaded portion. Statement made on behalf of respondents 1 and 2 is

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O.P(C) No.1673 of 2012

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recorded. As such in case there is any dispute as to whether any way is to be provided to the Green shaded portion and it is shown that there is no such way now in existence, respondents 1 and 2 shall provided a ten (10) feet way along the side of the Orange shaded portion reaching upto the Green shaded portion.

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So far as the share of additional 3^rd respondent is concerned, it is agreed by counsel on both sides that he will be given the share from the property allotted to the petitioners. It is submitted by counsel on both sides that the additional 3^rd respondent has filed an application before the learned Sub Judge to pass a preliminary decree allotting share to him. It is agreed by counsel on both sides that the said application could be treated as one for passing supplementary final decree. That submission is also recorded. Learned Sub Judge, Tirur shall treat the said application for passing final decree and share of the additional 3^rd respondent shall be allotted from the share allotted to the petitioners as per the share list and plans appended to it (Ext.R2 (a)

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So far as Ext. P4, report is concerned, that report is only to be set aside in view of the settlement reached between the parties. But learned counsel on both sides agree that for the

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O.P(C) No.1673 of 2012

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purpose of assessing value of the property, for purchase of non-judicial stamp paper, value of the property assessed by the Advocate Commissioner in Ext.P4, report, notwithstanding it is being set aside may be taken into account. The said request of learned counsel on both sides is also accepted.

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It is accordingly directed that notwithstanding the decision by this Court in the Original Petition, for the purchase of non-judicial stamp paper, the value of the property assessed by the Advocate Commissioner in Ext.P4, report shall be accepted.

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The learned counsel for respondents 1 and 2 submitted that since respondents 1 and 2 are in possession of the entire property, it is sufficient that petitioners and additional 3^rd respondent file application for delivery of the share allotted to them in the final decree and supplementary final decree.

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It is open to the parties to make appropriate request to the learned Sub Judge. The learned Sub Judge considering the request made by parties shall pass appropriate orders in that regard.

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Now the settlement reached between the parties is accepted what is remained is only to direct the learned Sub Judge to pass a final decree (and supplementary final decree on the

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O.P(C) No.1673 of 2012

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application the additional 3^rd respondent has filed) allotting properties in accordance with the settlement reached between the petitioners and respondents 1 and 2 and to the additional 3^rd respondent from the share of property allotted to the petitioners in Ext.R2(a).

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The learned counsel for respondents 1 and 2 pointed out that the suit is of the year 1984 and that even the application for passing final decree was filed in the year 2001. But even after 12 years nothing worthwhile has happened.

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That is a matter of concern that the suit filed in the year 1984 has not attained finality and parties have not able to enjoy the fruits of the litigation after 28 years. May be, delay can be attributable to various proceedings taken in the course of final decree and objections of the parties raised to the reports submitted by the Advocate Commissioner. But in the light of the settlement reached there is no reason why the matter should again be kept pending for long. Therefore the learned Sub Judge is directed to expedite the proceedings in the suit giving it top priority in accordance with the settlement reached between the parties referred to above.

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O.P(C) No.1673 of 2012

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Resultantly, Original Petition is disposed of as above.

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(i) The settlement reached between petitioners and respondents 1 and 2 and accepted by the additional 3^rd respondent as well is accepted and recorded.

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(ii) The learned Sub Judge, Tirur is directed to treat the application filed by the additional 3^rd respondent as one for passing supplementary final decree and pass a supplementary final decree concerning the share due to the additional 3^rd respondent (from the share allotted to the petitioners as per the settlement and plans appended to it).

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(iii) The learned Sub Judge, Tirur shall take into account the value of the property as assessed by the Advocate Commissioner in Ext.P4 (notwithstanding the order this Court is making concerning the said report) for the purpose of purchase of non-judicial stamp paper.

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(iv) So far as the 33 cents of property said to be in the possession of strangers is concerned, it will

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O.P(C) No.1673 of 2012

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not form part of the final decree or the supplementary final decree to be passed and it will be open to the parties to initiate appropriate proceedings as against the said 33 cents.

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(v) Exhibit P4, report subject to the direction above stated as to the value of the property assessed by the Advocate Commissioner for purchase of nonjudicial stamp paper would stand set aside.

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(vi) Exhibit R2(a) will form part of the decree of this Court.

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(viii) The learned Sub Judge, Tirur is directed to expedite the proceedings for passing final decree and supplementary final decree as directed above giving it top priority.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Thankam Ramachandran v. Raghuraman

Case brief

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Thankam Ramachandran v. Raghuraman

Case brief

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