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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 11 TH DAY OF FEBRUARY 2022 / 22ND MAGHA, 1943 OP(C) NO. 136 OF 2022 AGAINST THE ORDER DATED 06.02.2020 IN IA 2/2020 ORDER DATED 01.01.2022 IN I.A.NO.22/2021 IN OS 191/2014 OF MUNSIFF COURT, NADAPURAM PETITIONERS/PETITIONERS/PLAINTIFFS: MANNAMBATH AMMAD, AGED 69 YEARS S/O. KALANTHAN, BUSINESS, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
ETAKKANDY PATHU, AGED 72 YEARS D/O. KALANTHAN, SWASTHAM, VALAYAM AMSOM AND DESOM, VALAYAM P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673517.
MANNAMBATH AALI, AGED 63 YEARS S/O. KALANTHAN, BUSINEES, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
MANNAMBATH THARUVAYI, AGED 52 YEARS S/O. KALANTHAN, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
BY ADV P.A.AUGUSTINE(AREEKATTEL)
RESPONDENTS/RESPONDENTS/DEFENDANTS: MATHATH THARUVAYI HAJI, AGED 75 YEARS, S/O.AALI BUSINESS, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
MATHATH KUNHIPATHU HAJJUMMA, AGED 79 YEARS D/O. ALI, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
MATHATH BIYYATHU HAJJUMMA, AGED 72 YEARS D/O. AALI, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-
673506.
MATHATH ALIYUMMA HAJJUMMA, AGED 69 YEARS D/O. AALI, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-
673506.
MANNAMBATH SOOPPY, AGED 65 YEARS S/O. KALANTHAN, BUSINESS, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
KAKKATAN VEETTIL ALIYUMMA, AGED 72 YEARS D/O. AMMAD, SWASTHAM, VALAYAM P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-
673517.
VELUTHANKANDY BASHEER, AGED 45 YEARS S/O. AMMAD, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
CHAMNKANDI BEEKKUTTY, AGED 82 YEARS, D/O.MOIDEEN SWASTHAM, CHEKKIAD AMSOM, PULIYAVU DESOM, CHEKKIAD P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673509.
EROTH ALIYUMMA, AGED 77 YEARS D/O. MOIDEEN, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-
673506.
KANGANNIRAVUMMAL AYISSU, D/O. MOIDEEN AND W/O. MOIDU, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
ALATHAMKANDY KATHEESA, D/O. MOIDEEN AND W/O. ASSAN HAJI, SWASTHAM, VANIMAL AMSOM PERKKADAVU DESOM, VANIMAL P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA
STATE-673506.
PUTHIYOTTIL PONNANDI SUMAYYA, AGED 42 YEARS D/O. AALI HAJI AND W/O. MOIDU, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA
STATE-673506.
PUTHIYOTTIL PONNANDI FOUSIYA, AGED 40 YEARS D/O. AALI HAJI AND W/O. YUSAF, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA
STATE-673506.
PUTHIYOTTIL PONNANDI SAMEERA, AGED 38 YEARS D/O. AALI HAJI AND W/O. ABDUL KHADAR, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA
STATE-673506.
KIZHAKKUMPURATH AYISSU, AGED 72 YEARS W/O. THARUVAYI HAJI, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-
673506.
KIZHAKKUMPURATH KUNHAMMAD, AGED 51 YEARS S/O. THARUVAYI HAJI, BUSINESS, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-
673506.
KIZHAKKUMPURATH SOOPPY, AGED 49 YEARS S/O. THARUVAYI HAJI, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-
673506.
KIZHAKKUMPURATH KUNHALI, AGED 47 YEARS S/O. THARUVAYI HAJI, BUSINESS, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-
673506.
KIZHAKKUMPURATH MYMOONATH, AGED 45 YEARS D/O. THARUVAYI HAJI, KODANCHERI HOUSE, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
KIZHAKKUMPURATH SAUDHA, AGED 43 YEARS SWASTHAM, MURINGOLI HOUSE, NARIPPATTA AMSOM, THINOORE DESOM, NARIPATTA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
KIZHAKKUMPURATH ABDUL JALEEL, AGED 40 YEARS S/O. THARUVAYI HAJI, BUSINESS, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
PALOLI MOIDU HAJI, AGED 72 YEARS S/O. SOOPY, BUSINESS, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
PALOLI KUNHABDULLA HAJI, AGED 70 YEARS S/O. SOOPY, BUSINESS, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
PALOLI AALI, AGED 67 YEARS S/O. SOOPY, BUSINESS, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
NELLIYAMPURATH THAMASIKKUM PALOLI MAMI, AGED 65 YEARS D/O. SOOPY, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506. ENCHEENTAVIDA THAMASIKKUM PALOLI AYISSU, AGED 62 YEARS D/O. SOOPY, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
VANIYANTAVIDA THAMASIKKUM PALOLI ALEEMA, AGED 61 YEARS D/O. SOOPY, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
KANNAMPOYIL THAMASIKKUM PALOLI KADEESA, AGED 69 YEARS D/O. SOOPY, SWASTHAM, VELLIYODE AMSOM AND DESOM, KODIYURA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673506.
THAYYIL THAMASIKKUM PALOLI MARIYAM, AGED 57 YEARS D/O. SOOPY, SWASTHAM, POONATH P.O., NADUVANNOOR, KOYILANDY TALUK, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673601.
VALIYAPARAMBATH THAMASIKKUM PALOLI SAKEENA, AGED 53 YEARS D/O. SOOPY, SWASTHAM, AROORE AMSOM AND DESOM, ARRORE P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673507.
FOR R22 TO R30 SHRI R.K.MURALEEDHARAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
11.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. BADHARUDEEN, J. ================================
O.P(C).No.136 of 2022 ================================
Dated this the 11 th day of February, 2022
JUDGMENT
Plaintiff in O.S.191/2014 on the file of Munsiff Court, Nadapuram, who are aggrieved by the order dated 1.1.2022 in I.A.22/2021, have filed this Original Petition under Article 227 of the Constitution of India. The respondents herein are the defendants in the Suit. At the time of admission itself, Advocate R.K.Muraleedharan filed vakalat for R22 to R30. Thereafter, notice was issued to the other respondents by special messenger, but nobody appeared.
2. Heard the learned counsel for the petitioners Sri. P.A.Augustine as well as Sri R.K.Muraleedharan, appearing for R22 to R30.
3. The learned counsel for the plaintiffs submitted that the plaintiffs filed the suit O.S.191/2014 for partition of 3 items of property, viz., 1 acre 81 cent, 2 acre 33 cent and 7 acre 33 cent, describing the same as one included in re- survey No.30. A commission was deputed to locate and measure out the property. According to the learned counsel for the petitioners, the plaintiffs are claiming right in respect of the above items of property based on document
No.1269/53 (a partition karar). In the petition, the petitioners raised a contention that the re-survey number shown in the plaint schedule description is incorrect. Therefore, the plaintiffs filed petition to amend the plaint to incorporate the correct re-survey number 29/1A1 and 29/1A2, instead of resurvey no.30. According to the learned counsel for the petitioners, the earlier commissioner reported that the plaint schedule properties are in resurvey no. 29/1A1 and 29/1A2, instead of resurvey no.30. The learned counsel for the petitioners would submit that, in fact, the properties scheduled therein are to be identified based on the new re- survey number and for which the plaintiffs filed
I.A.No.22/2021. Apart from that, I.A.2/2020 also filed to amend the plaint by incorporating the new resurvey number. But as per order dated 01.01.2022 and 06.02.2020, the learned Munsiff dismissed both the applications. The petitioners are aggrieved in the matter of dismissal of the above applications.
4. Per contra, the learned counsel for respondents 22 to 30 would submit that the plaintiffs herein, who are unaware of the identity of the properties sought to be partitioned, are attempting to incorporate the properties belonged to respondents 22 to 30 in the plaint schedule. He submitted further that earlier, the plaintiffs filed
O.S.No.14/2019 before the Wakf Tribunal, Kozhikode claiming right over the property of Velliyode Juma-Ath- Masjid and the said Suit was dismissed. Now CRP (Wakf)
No.11/2020 is pending before this Court. He submitted further that, in fact, the entire properties now claimed by the plaintiffs herein are in possession of the Velliyode Juma-Ath- Masjid and no property other than the said 7 acre 68 cent is available as that of the plaintiffs.
5. When the learned counsel for the petitioners was asked as to the nature of property involved in CRP(Wakf)
No.11/2020, the learned counsel submitted that he is not aware of the said decree.
6. In view of the submission made by the learned counsel for respondents 22 to 30, I have perused the file of
CRP(Wakf).No.11/2020. I could gather that in the said matter, properties having an extent of 7 acre 68 cent is the subject matter and the old survey number in relation to the said property is 17/4 and resurvey 27 in Velliyode Amsom. However, the properties in this matter (in O.S.191/14) are in old survey 17/3A of Velliyode Amsom. Here the plaintiffs assert title over the plaint schedule properties based on a partion karar, viz., document No.1269/53. The said title deed not produced before this Court. In fact, the contention raised by the plaintiffs is based on 1953 partition karar in respect of the properties in old survey no.17/3A of Velliyode Amsom. Identification of
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