T.C.DARSANA Vs. P.P.RAMAKRISHNAN

JUDGEMENT

(1.) THE petitioner is the plaintiff in O.S.No.108 of 2013 on the file of the Court of the Subordinate Judge of Vatakara. The respondents are the defendants therein. The petitioner has in the said suit prayed for the following reliefs:

(2.) IN the said suit, the petitioner filed I.A.No.520 of 2013 under Order XXI rule 29 of the Code of Civil Procedure to stay the execution of decree in O.S.No.103 of 2007 on the file of the Court of the Subordinate Judge of Vatakara. By order passed on 10.4.2012, the trial court dismissed the said application. The petitioner had simultaneously filed I.A.No.522 of 2013 in O.S.No.108 of 2013 for a temporary injunction restraining defendants 1 to 6 from evicting her from the plaint schedule property pending disposal of the suit. A copy of the said application is produced as Ext.P2 in this original petition. The order passed by the Court of the Subordinate Judge of Vatakara dismissing I.A.No.520 of 2013 wherein the relief sought was to stay the execution of decree in O.S.No.103 of 2007 on the file of the Court of the Subordinate Judge of Vatakara, was challenged by the petitioner in O.P.No.1733 of 2013. By judgment delivered on 21.5.2013, the said original petition was dismissed. The instant original petition was thereafter filed and moved on 27.5.2013 for an order directing the Court of the Subordinate Judge of Vatakara to hear and dispose of I.A.No.522 of 2013 in O.S.No.108 of 2013 within a time limit to be fixed by this Court and to stay further proceedings in E.P. No.73 of 2011 in O.S.No.103 of 2007 until the said application is heard and disposed on the merits. When the application came up for hearing before me in the post lunch session yesterday, it was adjourned to this day to enable me to peruse the judgment dismissing O.P.(C) No.1733 of 2013.

(3.) THE petitioner is a minor aged 16 years. Her mother late Sharmila was a party to O.S.No.34 of 1980. In that suit, the Court of the Subordinate Judge of Vatakara held by judgment delivered on 23.12.1983 that item 4 of plaint A schedule to that suit, which is the subject matter of the instant suit, is not available for partition. It was held that the first defendant in that suit (Sri.Padmanabha Panikkar) has exclusive tenancy right over item 4 of plaint A schedule. The contention of defendants 7 to 19 in O.S.No.34 of 1980 including the petitioner's mother that item 4 of plaint A schedule was leased to their thavazhi was repelled. The petitioner's mother did not challenge the decree and judgment in O.S.No.34 of 1980 on any ground whatsoever. The said judgment has attained finality. The petitioner's mother passed away only in the year 2006. Thereafter, the legal heirs of Padmanabha Panikker, the first defendant in O.S.No.34 of 1980, instituted O.S.No.103 of 2007 for recovery of possession of item 4 of the plaint A schedule in O.S.No.34 of 1980. The petitioner herein was a party to the said suit. The said suit was decreed on 30.9.2007. The decree in O.S.No.103 of 2007 has also attained finality. In that suit, the petitioner was represented by her father and guardian. It is in the background of these facts that this Court has to consider whether she is entitled to reside in the house situated in the plaint schedule property on the strength of Document No.958 of 1951 of S.R.O., Azhiyur as a co-owner.