High Court Kerala High Court

M.N. Balakrishnan Nair vs Vijayan Menon on 25 November, 2010

Kerala High Court
M.N. Balakrishnan Nair vs Vijayan Menon on 25 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 15484 of 2010(O)


1. M.N. BALAKRISHNAN NAIR, S/O. BALAKRISHNA
                      ...  Petitioner
2. T.SUKUMARAN, S/O. NARAYANAN, CHITHIRA'

                        Vs



1. VIJAYAN MENON, S/O. KUNJAN MENON,
                       ...       Respondent

2. ANSAL BUILDWELL LIMITED, ANSAL RIVER

                For Petitioner  :SRI.SAJU.S.A

                For Respondent  :SRI.T.K.VENUGOPALAN

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :25/11/2010

 O R D E R
                               THOMAS P. JOSEPH, J.
                              --------------------------------------
                              W.P.(C) No.15484 of 2010
                              --------------------------------------
                    Dated this the 25th day of November, 2010.

                                        JUDGMENT

Petitioners in I.A.No.902 of 2010 in O.S.No.654 of 2007 of the court of

learned Additional Sub Judge-II, Ernakulam challenge order dated April 3, 2010

declining to implead them as additional defendants in the suit. Respondent

No.1/plaintiff filed the suit for recovery of possession of 56 cents on the strength

of his title impleading M/s. Ansal Buildwell Limited, a construction company as

defendant. According to respondent No.1, suit property was allotted to his share

as F schedule in Ext.P2, partition deed No.1265 of 1971 and while he was in

possession and enjoyment of the property the defendant trespassed into the

said property and hence the suit. Defendant filed Ext.P4, written statement

contending that respondent No.1 has no right, title or interest in the suit property

and that the suit property belonged in jenm to Kunnappally Kunjan Menon from

whom one Varkey took it on lease in the year, 1938. Varkey assigned his lease

hold right to Kumari as per document No.1095 of 1966. (In the year, 1971 legal

representatives of Kunjan Menon, the jenmy partitioned his properties as per

Ext.P2, partition deed.) Kumari assigned her right over the property to one Paily

and Paily in turn, assigned his right to one Mathai as per assignment deed

No.871 of 1985. Mathai is said to have sold the property to the petitioners in

I.A.No.902 of 2010 as per assignment deed No.2098 of 2005. They contended

that as per an agreement they entered into with the defendant, property was put

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in the possession of defendant for development by construction of building. On

the strength of Ext.P3, assignment deed No.2098 of 2005 petitioners in

I.A.No.902 of 2010 sought their impleadment in the suit as additional defendants

claiming title over the property. That application was resisted by respondent No.1

contending that petitioners have no right, interest or title over the property and

asserting his own right over the property as per Ext.P2, partition deed. In the

meantime on the plea of tenancy raised by the defendant in its written statement

learned Sub Judge framed an issue regarding tenancy. Defendant wanted

question of tenancy to be referred to the Land Tribunal for a finding. Learned

Sub Judge allowed the prayer. Respondent No.1/plaintiff challenged that order in

this Court in W.P.(C) No.37350 of 2008. This Court vide judgment dated January

11, 2010 allowed the Writ Petition mainly observing that even as per the

contention raised by the defendant, it does not claim title over the property and

according to the defendant the property belonged to the petitioners and in such

a situation no question of tenancy genuinely arose for a decision at the instance

of the defendant. Accordingly this Court found that reference of the question

raised by defendant is not necessary, set aside the order of learned Sub Judge

and directed that issue regarding tenancy to be deleted. It is while so, that

petitioners filed I.A.No.902 of 2010 as aforesaid seeking their impleadment. In

the meantime defendant sought for and obtained amendment of its written

statement incorporating paragraph Nos.4(a) to 4(d). Learned Sub Judge vide

Ext.P8, order referring to the contention raised in paragraph No.4(d) of the

amended written statement held that property has already been sold to certain

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other persons and hence impleadment of petitioners is not required.

Consequence was a dismissal of I.A.No.902 of 2010. Petitioners (represented by

defendant as power of attorney holder) challenge the said order in this petition.

Learned Senior Advocate appearing for the petitioners contended that learned

Sub Judge culled out a particular statement alone from paragraph No.4(c) of the

amended written statement to hold that petitioners have no right, interest or title

over the property and hence their impleadment is not necessary. This being a

suit for recovery of possession of property on the strength of tile, presence of

petitioners who have a real claim of title over the property is required. Learned

Senior Advocate has placed reliance on the decisions in Razia Begum v.

Sahebzadi Anwar Begum and others (AIR 1958 SC 886) and

Beepathumma v. Thankamma (1993 (2) KLT 152) to contend that

though respondent No.1 is the master of the suit and may choose the person

against whom he should seek relief, it is not as if the court has no power to

order impleadment of necessary or even proper parties if their presence is

necessary for a proper and effective adjudication of the dispute involved.

According to the learned Senior Advocate, documents produced by petitioners

vide memo (this day), would indicate that still, petitioners have right over a

portion of the suit property. At any rate and even if it is assumed that they have

assigned a portion of the suit property to the persons referred to in paragraph

No.4(c) of the amended written statement, it is not as if petitioners as assignors

are not entitled to be impleaded as necessary or proper parties. It is pointed out

that so far as the assignee is concerned, he may seek impleadment with

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permission of the court. But that does not take away right of the assignor to get

impleaded in the suit to defend the suit for and on behalf of the assignee as well.

Learned counsel for respondent No.1 contended that this Court is not justified in

interfering with the order passed by learned Sub Judge after consideration of

the materials on record including the contention raised by the defendant in the

additional written statement and that supervisory power conferred on this Court

under Article 227 of the Constitution does not extent to reappreciation of the

evidence unless a grave injustice has been committed by the court below and

placed reliance on the decisions in Subodh Kumar Gupta and others v.

Alpana Gupta and others((2005) 11 SCC 578), Radhey Shyam

and another v. Chhabi Nath and others((2009) 5 SCC 616), Sneh

Gupta v. Devi Sarup and others ((2009) 6 SCC 194) and Jai Singh

and others v. Municipal Corporation of Delhi and another((2010)

9 SCC 385).

2. No doubt, in the decisions referred to by the learned counsel for

respondent No.1 the Supreme Court has drawn the limits within which

jurisdiction under Article 227 of the Constitution could be exercised by the High

Court. It was held that under Article 227 of the Constitution the High Court has

jurisdiction to ensure that all statutory/quasi-judicial Tribunals exercised powers

vested in them within the bounds of their authority. It is however well to

remember the well known adage that greater the power, greater the care and the

WP(C) No.15484/2010

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caution in exercise thereof. The High Court therefore is expected to exercise

such wide powers with great care, caution and circumspection. The Supreme

Court pointed out that exercise of jurisdiction must be within the well recognised

constraints and that it cannot be exercised like a “bull in a china shop”, to correct

all errors of judgment of a court, or Tribunal, acting within the limits of its

jurisdiction. The correctional jurisdiction can be exercised in cases where orders

have been passed in grave dereliction of duty or in flagrant abuse of

fundamental principles of law or justice. I shall proceed in the matter as guided

by the decisions of the Supreme Court referred to above by learned counsel.

3. No doubt an earlier attempt on the part of the defendant to get the

question of tenancy referred to the Land Tribunal was shot down by this Court

by Ext.P5, judgment but that was on a finding that defendant had no claim of

title over the property and hence no question of tenancy could arise. That does

not mean that subsequent claim of petitioners or subsequent events are not to

be looked into. It is seen from the order under challenge that learned Sub

Judge disallowed the prayer for impleadment of petitioners for the reason that in

the amended written statement it was contended that in the year 2006, 2007

and 2009 sales deeds were executed (obviously by petitioners) in respect of the

suit property and that property is in the possession of one Augustine, Leslie

Augustine, Deepak Tikku, Ambir Singh and the defendant. Copies of the said

documents were produced by the defendant in the court of learned Sub Judge.

Learned Sub Judge observed that defendant is claiming under the petitioners

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and that petitioners would be helpful to prove the case of defendant (that,

defendant is not a trespasser into the suit property but is holding the property

under the agreement executed between it and petitioners who according to the

defendant are the lawful owners). Observing so, the application was dismissed.

4. Learned Senior Advocate has referred me to the description in item

No.5 of F schedule to the partition deed No.1265 of 1971 under which

respondent No.1 is claiming absolute right and title over the property. It is

stated that the said property is oustanding in the possession of one

Assariparambil Kumaran who, it is argued is the husband of Kumari who is said

to have acquired right from Varkey as per document No.1095 of 1966. It is the

said Kumari who assigned the property in favour of one Paily as per document

No.2188 of 1983 who in turn assigned property to Mathai as per assignment

deed No.871 of 1985 and it is from the said Mathai that petitioners (allegedly)

obtained right over the suit property as per Ext.P3, assignment deed No.2098 of

2005. Learned Senior Advocate has also referred to me the amendment to

written statement incorporated by paragraph Nos.4(a) to (d). In paragraph No.4

(a) there is reference to the alleged derivation of title by the petitioners as

aforesaid and as contended in the original written statement and in paragraph

No.4(b), there is reference to two documents executed by the petitioners on

01.11.2006 (prior to the institution of the suit) and 28.03.2007 in favour of

Augustine and Lesli Augustine concerning 12.306 cents each. The third

document referred to in paragraph No.4 (b) is a document executed by

petitioners in favour of the defendant regarding 18 cents. Assuming so, it

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would appear that petitioners have a claim of title over the remaining 13.388

cents (out of the 56 cents referred to in the plaint schedule), it is contended by

learned Senior Advocate appearing for petitioners. In response it is contended

by learned counsel for respondent No.1 that it is not clear in the light of

averments in the amended written statement whether rest of the suit property

has also been assigned by petitioners in favour of strangers. True in paragraph

No.4(d) of the amended written statement there is a contention raised by the

defendant that “the defendant has secured the tenancy right in the plaint

schedule vested in T.Sukumaran and M.N.Balakrishnan Nair”(they are the

petitioners before me). But it is contended by learned Senior Advocate that the

said statement alone cannot be culled out from the pleadings to hold that

petitioners have no subsisting right over the property. According to the learned

Senior Advocate that contention must be read in continuation of the contentions

raised in paragraph Nos.4(a) to (c) as to the derivation of title. Learned Senior

Advocate contends that even if a portion of the property has been assigned, it

is well within the right of petitioners atleast on behalf of the assignees and on

their behalf to get impleaded in the suit.

5. It is seen from the impugned order that learned Sub Judge took

the view that by sale deeds referred to in the amended written statement

petitioners have sold their right over the property so that they are not required to

be made parties in the suit. Learned Sub Judge has not adverted to all aspects

of the matter which I have stated above. Learned Sub Judge has not

considered the question Learned Sub Judge has not considered the question of

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rival claims to title to the property, in view of derivation of title claimed by them

are necessary or atleast proper parties to the suit. That amounts a jurisdictional

error which is required to be corrected. In view of that, the matter has to go

back to the learned Sub Judge for a fresh decision. If respondent No.1 has a

contention that in view of any other assignment deed executed by petitioners

the latter could not claim any right in the suit property it is open to him to

produce such document in the court below.

6. In the light of what I have stated above, I consider that the order

under challenge cannot be sustained as it is not passed after considering all

relevant aspects of the matter and considering all materials in which

circumstance Article 227 of the Constitution permits this Court to interfere even

going by the decisions of the Supreme Court referred to above. It follows that

order under challenge is liable to be set aside.

Resultantly this petition is allowed by way of remand. Ext.P8, order is set

aside and Ext.P6, application (I.A.No.902 of 2010) is remitted to the court below

for fresh decision after giving opportunity to both sides to adduce further

evidence in respect of their respective contentions in I.A.No.902 of 2010.

THOMAS P.JOSEPH,
Judge.

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