Dismissed

Maheswari R. v. Mailathal Koundachi

Kerala HC12 Jan 2016CRP/521/2015

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed two civil revision petitions challenging an order for delivery of property in execution proceedings. The petitioners, legal representatives of a deceased party who had no independent allotment in the partition decree, argued non-impanelment invalidated the order. The court held their claims failed as they had no decree rights independent of the deceased party and

What did the court decide?

Civil Revision Petitions C.R.P.Nos. 521 & 522 of 2015 are dismissed; order for delivery of property is sustained.

Maheswari R. Vs Mailathal Koundachi — Partition | Kerala HC (2016)

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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 K.ABRAHAM MATHEW

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TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937

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CRP.No. 521 of 2015 ()

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EP NO. 177/2013 IN FDIA NO. 3023/1997 IN OS NO.115/1981 OF PRINCIPAL SUBORIDNATE JUDGE'S COURT, PALAKKAD

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REVISION PETITIOENRS/RESPONDENTS NO.11 TO 13/LRS OF RESPONDENT NO.9/ LRS OF DEFENDANT NO.2:

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1. MAHESWARI R. W/O. LATE ABBAS, V.F.P.E.K., NEAR KACHAMKURUSSI TEMPLE, PAYYALUR, KOLLENGODU, CHITTUR TALUK, NOW RESIDING AT 184, AGRAHARAM STREET, PERUMTHURAI POST, ERODE DIST, TAMIL NADU

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2. A.CHANDINI (MINOR) D/O.LATE ABBAS, V.F.P.E.K., NEAR KACHAMKURUSSI TEMPLE, PAYYALUR, KOLLENGODU, CHITTUR TALUK NOW RESIDING AT 184, AGRAHARAM STREET, PERUMTHURAI POST, ERODE DIST TAMIL NADU REPRESENTED BY BY THE MOTHER & GUARDIAN MAHESWARI R. W/O.ABBAS, V.F.P.E.K NEAR KACHAMKURUSSI TEMPLE, PAYYALUR, KOLLENGODU CHITTUR TALUK NOW RESIDING AT 184 AGRAHARAM STREET, PERUMTHURAI POST, ERODE DIST TAMIL NADU

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3. A.KARISHMA (MINOR) D/O.LATE ABBAS, V.F.P.E.K., NEAR KACHAMKURUSSI TEMPLE, PAYYALUR, KOLLENGODU, CHITTUR TALUK, NOW RESIDING AT 184, AGRAHARAM STREET PERUMTHURAI POST, ERODE DIST TAMIL NADU REPRESENTED BY BY THE MOTHER & GUARDIAN MAHESWARI R., W/O.ABBAS, V.F.P.E.K KOLLENGODU CHITTUR TALUK, NOW RESIDING AT 184, AGRAHARAM STREET, PERUMTHURAI POST, ERODE DIST TAMIL NADU

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BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P

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CRP.No. 521 of 2015 ()

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RESPONDENTS/PETITIONER & RESPONDENTS NO.1 TO 6 & 8 TO 10/PETITIONER RESPONDENTS NO.3 TO 8, 10 TO 12 LRS OF THE PLAINTIFF & THE DEFENDANTS.:

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1. MAILATHAL KOUNDACHI, W/O.PAZHANISWAMY KOUNDER, D/O.ARUMUGHA KOUNDER, MANCHIKUNNAMPATHY AYYAMAR KALAYIL ERUTHEMBATHY VILLAGE, CHITTUR TALUK, RESIDING AT R.V.P.PUDUR, R.V.P.PUDUR POST, ERUTHEMBATHY VILLAGE, CHITTUR TALUK, PALAKKAD DIST-678101

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2. JEENATH BEEVI,

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W/O.LATE SHAIK MUHAMMAD, KINARPALLATHIL, OZHALAPATHY VILLAGE & POST, CHITTUR TALUK, PALAKKAD DIST - 678101

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3. JOHN BACHA,

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D/O.LATE SHAIK MUHAMMAD, KINARPALLATHIL, OZHALAPATHY VILLAGE & POST, CHITTUR TALUK, PALAKKAD DIST - 678101

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4. MUBARAK,

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S/O.LATE SHAIK MUHAMMAD, KINARPALLATHIL OZHALAPATHY VILLAGE & POST, CHITTUR TALUK, PALAKKAD DIST.

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5. RAJIYA BEEVI

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D/O.LATE SHAIK MUHAMMAD, KINARPALLATHIL OZHALAPATHY VILLAGE & POST, CHITTUR TALUK PALAKKAD DIST - 678101

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6. MAIMOON BEEVI,

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W/O.LATE MUHAMMAD HUSSAIN, ANPPUR OZHALAPATHY VILLAGE & POST, CHITTUR TALUK PALAKKAD DIST - 678101

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7. NOOR MUHAMMED, S/O.LATE MUHAMMAD HUSSAIN, ANPPUR, OZHALAPATHY VILLAGE & POST, CHITTUR TALUK, PALAKKAD DIST - 678101

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8. IMAM BASHA S/O.LATE MUHAMMAD HUSSAIN, ANPPUR OZHALAPATHY VILLAGE & POST, CHITTUR TALUK, PALAKKAD DIST - 678101

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9. DHILSHIT BEEGAM, W/O.KHADER BASHA, 5/85, RAJA NAGAR P.N.PALAYAM, THIRUPUR, TAMIL NADU - 642102

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CRP.No. 521 of 2015 ()

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10. BABY D/O.MUHAMMAD HUSSAIN, ANPPUR, OZHALAPATHY VILLAGE & POST, CHITTUR TALUK PALAKKAD DIST - 678101

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*ADDL. R11 IMPLEADED :

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11. THE SECRETARY, CHITTUR PRIMARY CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANKCHITTUR, CHITTUR, PALAKKAD DISTRICT.

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ADDL. R11 IS IMPLEADED AS PER ORDER DT.12/1/2016 IN IA NO. 91/2016

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R1 BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD R2 TO R5 BY ADVS. SRI.P.B.KRISHNAN

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SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE ADDL.R11 BY ADV. SRI.G.HARIHARAN BY ADV. SRI.PRAVEEN.H.

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2015 , ALONG WITH CRP. 522/2015, THE COURT ON 12-01-2016 PASSED THE FOLLOWING:

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CRP.No. 521 of 2015 ()

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APPENDIX

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PETITIONER'S ANNEXURS :

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ANNEXURE I: COPY OF THE PAPER PUBLICATION DT 03/04/2013 PUBLISHED IN MATRUBHOOMI DAILY DT 3/5/2013 RELATING TO THE SALE OF PROPERTIES OF R1 &R3. ANNEXURE II: COPY OF THE COMMUNICATION DT 11/6/2014 VIDE COMMUNICATION NO. 4035/2014 AEL ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PALAKKAD. ANNEXURE III: COPY OF THE COMMUNICATION DT 5/12/2015 ISSUED BY THE VILLAGE OFFICER, OZHALAPATHY ADDRESSED TO THE AUCTION PURCHASER MR. PADMANABHAN.

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RESPONDENT'S ANNEXURES : NIL.

//TRUE COPY//

P.A. TO JUDGE

K.ABRAHAM MATHEW J.

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C.R.P.Nos.521 & 522 of 2015

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Dated this the 12^th day of January, 2016

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JUDGMENT

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One Arumugha Kounder filed O.S.No.215 of 1973 in Munsiff Court, Chittur to realise certain amount from one Muhammed Hussain and his brother Haneefa Sahib. A decree was passed in favour of Arumugha Kounder. In execution of the decree the undivided one half right of the Muhammed Hussain was sold and the decree holder Arumugha Kounder purchased it. The other half belonged to one Shaik Muhammed. Arumugha Kounder filed O.S.No.115 of 1981 for partition and separation of his half share. A preliminary decree for partition was passed in 1984. Apart from Shaik Muhammed, Muhammed Hussain also was made a defendant in that suit, as he apparently was in possession of the property. In 1995 Muhammed Hussain executed separate documents in favour of the petitioner in C.R.P.No.522 of 2015 who was the 8^th respondent in the final decree application, and in favour of the 9^th respondent in that application, whose legal representatives are the petitioners in C.R.P.No.521 of 2015. After the death of the decree holder, Arumugha Kounder, his daughter, who is the first respondent in these revision petitions, filed final decree application, I.A.No.3023 of 1997. On the death of the first defendant, Shaik Muhammed, his

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legal representatives were impleaded as per the orders passed on I.A.No.4197 of 1997 on 7.3.1998 as respondents 3 to 6. On the

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C.R.P.Nos.521 & 522 of 2015 2

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death of the second defendant, Muhammed Hussain, his legal representatives including the petitioner in C.R.P.No.522 of 2015 and Abbas, the predecessor of the petitioners in C.R.P.No.521 of 2015 were impleaded in the final decree application as respondents 7 to 12 on 20^th September, 2002. The petitioners in CRPs claim that Muhammed Hussain and Shaik Muhammed assigned to the petitioner in CRP No.522 of 2015 and Abbas predecessor of the petitioners in CRP No.521 of 2015 a property which is part of the property covered by the final decree application and thus they have right in the property independent of Muhammed Hussain. Abbas, the 9^th respondent in the final decree application died on 28.9.2005. The petitioners in CRP No.521 of 2015 who are his legal representatives were not impleaded. The order for delivery is attacked on the following grounds:

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a) Muhammed Hussain was in possession of the property though his title was sold in court auction in execution of the decree. But there is no order for recovery of possession. So possession of the property cannot be recovered from his legal representatives.

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b) The petitioner in CRP No.522 of 2015 and Abbas the predecessor of the petitioners in CRP No.521 of 2015 were not made parties in their individual capacity though they had ownership

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C.R.P.Nos.521 & 522 of 2015 3

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and possession of the property independent of Muhammed Hussain.

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c) The right of the first respondent in the property has not been declared.

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d) The decree is a nullity for non impleadment of petitioners in CRP No.521 of 2015 on the death of their predecessor Abbas.

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Muhammed Hussain predecessor of the petitioners in the two CRPs was a party to the partition suit O.S.No.115 of 1981. It was in his presence the preliminary decree for partition allotting one half share each to Kounder, predecessor of the first respondent, and Shaik Muhammed was passed. No allotment was made to Muhammed Hussain. No right or interest of Muhammed Hussain was recognised in the decree. He was bound by the decree. His legal representatives cannot be heard to say that he had possession of the property and there is no decree for recovery of possession.

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In 1975 the petitioner in CRP No.522 of 2015 and Abbas, the predecessor of the petitioners in the other CRP, allegedly obtained an assignment of property which is said to be part of the property covered by the final decree. But they were not made a party to the partition suit in their individual capacity. It was in their presence the final decree was passed. The petitioners in CRP No.521 of 2015 filed RFA No.419 of 2013 and the petitioner in the

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C.R.P.Nos.521 & 522 of 2015 4

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other CRP filed RFA 389 of 2013 challenging the final decree, which is admitted in the Civil Revision Petitions. But those appeals were dismissed. They cannot set up a new case in the execution proceedings.

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Yet another contention of the petitioners is that the right of the first respondent, who is the daughter of Kounder, was not declared and she is not entitled to claim the property. This cannot be accepted. It was she who filed the final decree application. The final decree was passed in her favour. As mentioned earlier, the final decree has become final. It cannot be challenged now by the petitioners.

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The last argument is that the petitioners in CRP No.521 of 2015 were not impleaded on the death of their predecessor Abbas who claimed through Muhammed Hussain. Muhammed Hussain was not allotted any property in the preliminary decree. Going by the decree, he had no interest in the property. It was unnecessary to implead the petitioners in CRP No.521 of 2015. In fact, it was even unnecessary to make Muhammed Hussain a party to the final decree application.

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So none of the contentions of the petitioners can be upheld. The revision petitions are liable to be dismissed.

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C.R.P.Nos.521 & 522 of 2015 5

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In the result, these Civil Revision Petitions are dismissed.

Sd/-

K.ABRAHAM MATHEW

JUDGE

cms

/True copy/ P.S.to Judge

Maheswari R. v. Mailathal Koundachi

Case brief

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Maheswari R. v. Mailathal Koundachi

Case brief

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