Mannambath Ammad vs Mathath Tharuvayi Haji

A. Badharudeen, J.

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.

Heard the learned counsel for the petitioners Sri. P.A.Augustine as well as Sri R.K.Muraleedharan, appearing for R22 to R30.

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.

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.

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.

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 the said properties based on old survey plan is absolutely necessary to address the grievance of the plaintiffs.

Therefore, I am of the view that Ext.P10 order required to be interfered, with permission to the plaintiffs to file another application for identifying

the plaint schedule items based on the title deed descriptions and old survey plan, mentioning resurvey number in relation to the said old survey plan.

Permitting the plaintiffs to do so, Ext.P10 is set aside. Coming to Ext.P9 order in I.A.No.2/2020, I am inclined to confirm the same. However, I leave

the liberty to the plaintiffs to file an amendment application, in the event, after getting a new survey commission report based on old survey plan of the

properties in tune with description of the same in the partition karar No.1269/53, and on measurement based on title deed and old survey number, the

plaint schedule items are identified.

The Original Petition is disposed of as above.