PONNAMMA Vs. STATE OF KERALA & ORS.

JUDGEMENT

(1.) The petitioner and respondents 4 to 7 are siblings and the children of late Narayanan. The petitioner and her brothers started litigating for their father's property way back in 1994, when she was constrained to file O.S.No.210/1994 against her brothers for partition and separate share. The brothers raised a contention that the suit was bad for non-joinder of their half-sister Mallika, who is also entitled to a share in the property. Consequently, she too was impleaded and the suit was decreed on 31-01-2000. Application for final decree was filed by the petitioner and on deputation of the Commissioner, the property was divided by metes and bounds. While the proceedings were pending, the petitioner's half-sister Mallika requested that the matter be placed before the Adalath and the Adalath suggested a settlement and the final decree was passed on the basis of the award passed by the Adalath. The party respondents herein did not co-operate with the discussions which took place before the Adalath for settlement of the dispute. The 4th respondent herein challenged the final decree proceedings before the Additional District Court, North Paravur by filing A.S.No.213/2005. The appeal was dismissed. R.S.A.No. 1163/2006 was filed and the final decree was set aside on technical ground and direction was given to the lower court to hear the matter afresh and pass the final decree. Accordingly, the final decree was passed on 21-07-2014. That final decree was again challenged by the party respondents 4 to 6 before the Sub Court, Perumbavoor by filing A.S.No.83/2014. In the meanwhile, the final decree was got engrossed by the petitioner herein and she filed E.P.No.43/2015 for getting delivery of the property. A.S.No.83/2014 was dismissed on 31-03-2017. Despite various untenable objections being raised by the party respondents herein, delivery was ordered, brushing aside those contentions. When the Amin went to the property for effecting delivery, the party respondents herein along with some female members obstructed the same. The executing court had to provide police assistance to the Amin deputed from the court to deliver the property to the petitioner on 11-08-2017 and a report was filed by the Amin before the execution court on 17-08-2017. That delivery report, which forms the basis for the possession claimed by the petitioner over her property is Ext.P1. The survey plans pertaining to the division of properties are Ext.P2 series. The petitioner also effected mutation and is paying tax for the properties delivered to her. Ext.P3 is copy of the basic tax receipt obtained on 20-09-2017. Dissatisfied, the party respondents challenged the final decree once again by filing R.S.A.No.850/2017. This Court made certain observations regarding the division of property by the Commissioner, mainly pertaining to one item, having an extent of 36.70 ares in R.S.No.303/5. The petitioner was willing to relinquish her claim over an extent of 6.25 ares allotted to her from that item of property and was satisfied with the other five items regarding which there could have been no objection. The R.S.A. was disposed of vide Ext.P4 judgment, confirming the final decree, except regarding item No.5 comprised in R.S.No.303/8-3 and the parties were directed to appear before the trial court for effecting partition of that property between the defendants 1 to 5 in the suit, ie., respondents 4 to 7 herein and Mallika, their half-sister. Regarding all other properties, which were delivered to the petitioner in the final decree, there was no dispute and the final decree was confirmed. After about two decades of tiring litigation, when the property ultimately came into the possession of the petitioner to enjoy it, the party respondents obstructed her husband and workers from entering the properties and threatened them with dire consequences if they dared to enter the property. Aggrieved by this act of the party respondents, the petitioner filed Ext.P5 complaint before the 2nd respondent. The party respondents were summoned by the police and directed not to cause any obstruction to the petitioner entering her property, but failed to take any stringent action against the erring party respondents for the reason that the dispute is one of purely civil nature. The indolence on the part of the 2nd respondent has encouraged the party respondents further in their illegal activities. The civil dispute between the petitioner and the party respondents have attained finality. Despite that, the petitioner is not able to enjoy the property set apart and delivered to her in the partition. Hence, she has approached this Court seeking intervention of this Court to issue specific directions to respondents 2 and 3 to afford adequate and sufficient protection to her so as to enable her to enjoy her property.

(2.) The learned Senior Government Pleader appearing for respondents 1 to 3, on instructions, submits that the party respondents were called to the police station and issued stringent warning.

(3.) The 6th respondent for himself and on behalf of 7th respondent has filed a detailed counter-affidavit supported by certain documents contending that the petitioner is not entitled to any of the reliefs in this Writ Petition because of non-joinder of necessary parties. It is submitted that all the parties in Ext.P4 judgment ought to have been made parties. It is further stated that one Kamalakshi, who is the maternal grand-daughter of Ayyappan, the paternal grandfather of the petitioner, had filed O.S.No.365/2005 before the Munsiff's Court, Perumbavoor with a prayer to set aside the decree and judgment obtained by the petitioner in her favour in O.S.No.210/1994. That suit was dismissed and copy of the judgment in O.S.No.365/2005 is produced by the party respondents as Ext.R6(a). It is also stated that an appeal has been preferred challenging Ext.R6(a) and the same is pending as A.S.No.19/2017 before the Sub Court, Perumbavoor. Appeal was filed by respondents 4 to 6 herein as Ext.R6(b) and it is pointed out that there is every possibility of the appeal being allowed. The petitioner should not have been handedover possession of the property. It is further contended by the party respondents that the property does not actually belong to their father, Narayanan, but to their grand-father Ayyappan and the petitioner had obtained the decree in O.S.No.210/1994 misleading the court that the property belonged to Narayanan alone. The suit is bad for non-joinder of necessary parties, since all the legal heirs of Ayyappan, including Kamalakhi, the plaintiff in O.S.No.365/2005, were not made parties. It is therefore contended by the party respondents that the right of the petitioner obtained as per Ext.P4 judgment and Ext.P1 delivery report will ultimately depend on the final adjudication of O.S.No.365/2005 and the appeal therefrom filed as A.S.No.19/2017. It is also submitted that Kamalakshi has raised an objection in the execution petition as E.A.No.154/2017 in E.P.No.43/2017 under Order 21, Rule 97 before the execution court obstructing delivery of the properties and copy of that petition is Ext.R6(c). The execution court did not adjudicate that petition. The civil dispute between the petitioner and the party respondents has not attained finality as claimed by the petitioner. The petitioner and her husband want to cut and remove certain valuable trees in the property and commit waste. It was Kamalakshi and her men, who had prevented the petitioner and her workers from cutting down trees in the property and not by the party respondents, and therefore, the Writ Petition is only to be dismissed with direction to resolve the civil dispute before appropriate forum.