WP challenging dismissal of review applications allowing joint trial of suit for property declaration and suit for partition. Court held since substantive partition suit covers same issue, no merit in review and petition dismissed.
Petition dismissed; interim stay vacated; office directed to communicate judgment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938
ORDER DTD.20.5.2016 IN IA.NO.404/2016 AND IA.NO.405/2016 IN 1064/2015 IN OS.NO.322/2014 OF MUNSIFF'S COURT, KOYILANDY
PETITIONER(S)/PETITIONER/PLAINTIFF:
SREEDHARA VARRIAR,
S/O. KUTTIKRISHNA VARRIAR, 74 YEARS, TEACHER RETD, ATHOLI VILLAGE, MADAKKALLUR AMSOM ADUVATT DESOM, KOYILANDY TALUK.
BY ADVS.SRI.SANTHARAM P. SMT.REKHA ARAVIND
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
1. KAPPALLY PARVATHY VARASYAR, 93 YEARS, D/O. KUTTIKRISHNA VARRIAR, SWASTHAM, MELADY AMSOM, KEEZHUR DESOM, KOYILANDY TALUK
2. KAPPALLY AMBUJAKSHI @ LAKSHMIKUTTY VARASYAR, D/O. RAGHAVA VARRIAR AND PARVATHI VARASYAR, 69 YEARS, ,MELADY AMSOM, KEEZHUR DESOM, KOYILANDY TALUK
3. KAPPALLY BHARGAVY VARASYAR,
4. KAPPALLY SAVITHRI VARASYAR, D/O. PARVATHI VARASYAR, 61 YEARS, SWASTHAM, MELADY AMSOM, KEEZHUR, DESOM, KOYILANDY TALUK
5. KAPPALY DEVAKI VARASYAR
Msv/
-2-
-2-
OP(C).No. 1705 of 2016 (O)
6. KAPPALLY NARAYANA VARRIAR, S/O. PARAVATHI VARASYAR, 54 YEARS, SWASTHAM, MELADY AMSOM, KEEZHUR,DESOM, KOYILANDY TALUK.
7. KAPPALLY VIJAYAKUMAR,
W/O. JANARDANA VARRIAR, 55 YEARS, MELADY AMSOM, KEEZHUR,DESOM, KOYILANDY TALUK.
8. KAPPALLY JISHA,
D/O. JANARDANA VARRIAR, 34 YEARS, MELADY AMSOM, KEEZHUR,DESOM, KOYILANDY TALUK.
9. KAPPALLY SHIJI,
D/O. JANARDANA VARRIAR, 32 YEARS, SWASTHAM, MELADY AMSOM, KEEZHUR,DESOM, KOYILANDY TALUK.
BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
OP(C).No. 1705 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S NO 126/2014
RESPONDENT(S)' EXHIBITS:
------------------------
NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
K. Ramakrishnan, J.
J U D G M E N T
O.P.(Civil)No.1705 of 2016 : 2 :
over the property and thereby, he become the absolute owner of the property by paying off the liability in execution of O.S.No.419/1977 of Munsiff Court, Koyiandy and he had obtained certificate of satisfaction of the decree in that suit. The defendants filed written statement contending that, he is only in possession of the property as a co-owner and he never possessed the property as his own and according to them, the plaintiff is not entitled to get a declaration as prayed for as per Ext.P2 written statement. The defendants 1 to 6 in O.S.No.126/2014 who are respondents 1 to 6 herein, filed Ext.P3 suit as O.S.No.322/2014 for partition of the
plaint schedule property as well as another item of property which they jointly possessed. The petitioner filed a written statement as Ext.P4 that Item No.1 in that suit is not partiable and he had already filed a suit as O.S.No.126/2014 for declaration that he is the exclusive owner of that property. The defendants 1 to 6 who are the plaintiffs in O.S.No.322/2014 filed an interim application as I.A.No.1064/2015 for joint trial of
O.P.(Civil)No.1705 of 2016 : 3 :
these two cases and that application was allowed as per Ext.P5 order. Thereafter, he filed Exts.P6 and P7 applications to review the order to condone the delay of 52 days in filing the application and the learned Munsiff dismissed both these applications vide Exts.P8 and P9 orders, which is being under challenge.
O.P.(Civil)No.1705 of 2016 : 4 :
cases and point to be decided in both the cases are also different. So, the joint trial should not have been ordered by the court below and court below ought to have allowed the review application.
7.It is an admitted fact that the petitioner and respondents are co-owners in respect of certain properties. It is also an admitted fact that the property covered in Ext.P1 suit originally belonged to the petitioner and the respondents jointly and according to him, there was a charge created in respect of the property and that was discharged by him in an Execution proceedings and thereby, he became the absolute owner of the property and so he wanted declaration that he is the absolute owner of that
O.P.(Civil)No.1705 of 2016 : 5 :
property and for consequent injunction restraining the respondents herein from trespassing in to that property. The plaint schedule property in Ext.P1 suit is Item No.1 in O.S.No.322/2014, evidenced by Ext.P3 suit. Ext.P3 suit was filed by respondents 1 to 6 herein against the petitioner and other co-owners, seeking partition of two items of properties belonging to them jointly including the plaint schedule property in Ext.P1 suit. Ext.P3 suit is the substantive suit. The question as to whether Item No.1 which is the property in Ext.P1 is available for partition also can be gone into by the court in the partition suit. So, under such circumstances, the court below was perfectly justified in allowing the application filed by respondents 1 to 6 for joint trial of these two cases. Though the petitioner has not challenged that order, but, challenging only the order passed dismissing the application to condone the delay and review application, since there is no merit in the application for review itself as parties to both the cases are same and point to be decided in both the cases are also same in
O.P.(Civil)No.1705 of 2016 : 6 :
respect of Item No.1 and partition suit is the substantive suit in which the question regarding availability of Item No.1 for partition can also be gone in to, this Court, feels that, there is no merit in the petition and this Court does not feel any reason to interfere with the orders passed by the court below including Exts.P8 and P9 invoking the power under Article 227 of Constitution of India.
So, the petition lacks merit and the same is hereby dismissed. The interim order of stay granted is hereby vacated.
Office is directed to communicate this judgment to the court below immediately.
Sd/- K.Ramakrishnan, Judge.
Bb/16/08/2016
[True copy]
P.A to Judge
3 issues framed by the court
Whether the writ court should interfere with the High Court order dismissing review applications regarding the joinder of two property suits.
Whether the Munsiff Court erred in allowing joint trial of two suits involving same parties and overlapping issues regarding property declaration and partition.
Whether there is merit in the petition challenging the dismissal of review applications under Article 227 of the Constitution of India.
Sreedhara Variar
Kappally Parvathy Varasyar
Kappally Ambujakshi LakshMIkutty Variyar
Kappally Bhargavy Variyar
Kappally Savithri Variyar
Kappally Devaki Variyar
K.Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
