Ramla vs Khadeeja,W/o Late Makkar

BECHU KURIAN THOMAS, J

C.S Dias, J

Confronted with Ext P7 order passed in IA No.6/2022 in OS No.171/2021 by the Court of the Munsiff, Muvattupuzha, the plaintiff in the suit has filed the original petition. The respondents are the defendants in the suit.

The relevant facts leading to Ext P7 order, are: the petitioner has filed the suit for a decree of partition. The suit is resisted by the respondents 1 to 8 through Ext P2 written statement. The respondents also produced Ext P3 document to substantiate that the petitioner had relinquished her right over the property. The petitioner has filed Ext P4 subsequent pleadings and the respondents have filed Ext P5 rejoinder. The court below formulated six issues. On finding that the court below had casted wrong issues, the petitioner filed Ext P6 application to delete issues 1 to 3 and to cast two additional issues. The court below, by impugned Ext P7 order, dismissed Ext P6 application. Ext P7 is ex facie illegal and unsustainable in law. Hence, the original petition.

Heard; Sri.P.M Rafeek, the learned counsel appearing for the petitioner and Sri.Alias M.Cherian, the learned counsel appearing for the respondents.

The point is whether there is any illegality in Ext P7 order.

Ext P1 plaint is filed for a decree of the plaint schedule properties by metes and bounds. The suit is resisted by the respondents through Ext P2 written statement, inter alia, contending that the petitioner had relinquished her right in respect of the property as per Ext P3 document and that the respondents have acquired ownership over the property by settlement deed Nos.1850/2002 and 1851/2002 of Muvattupuzha SRO. Thereafter, both sides filed subsequent pleadings.

The court below after perusing the pleadings and materials on record, cast the following issues:

Is the suit is properly valued?

Is the suit bad for non-joinder of necessary parties?

Do the plaintiff executed any document relinquishing any right over plaint schedule property.

Is the plaint schedule property is partable, if so what shall be the share entitled to each party?

Equities if any?

Other relief and cost?

Dissatisfied with the above issues formulated, the petitioner filed Ext P6 application to delete issues 1 to 3 and to cast the following two additional issues.

Additional issues to be raised.

Whether settlement deed 1850/2002 and 1851/2022 is non-est, null and void and to whom the burden lies to prove the veracity of these documents and transactions?

Whether the defendants have paid required court fee for the adjudication of the issues raised on their pleadings.

The court below, by the impugned Ext P7 order, finding that the petitioner has not sought for a relief to declare the document be null and void, held that there is no necessity to recast the issues. It was also observed that, this Court has directed the court below to dispose of the suit within three months from 3.2.2022.

On a consideration of the pleadings and materials on record, especially the fact that the petitioner has only sought for a decree of partition, which is resisted by the respondents by contending that the petitioner had relinquished her right over the property and they have obtained right in the property by way of two settlement deeds, I am of the definite view that only issues 4 to 6 are germane to the case at hand, and the other issues are unnecessary.

In the above conspectus, I am inclined to modify Ext P7 order to the above limited extent, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India.

Resultantly, I dispose of the original petition in the following manner:

(i) Ext P7 is modified.

(ii) Issue Nos.1 to 3 cast by the court below are deleted.

(iii) The petitioner’s prayer to add additional issues 1 and 2, as sought for in Ext P6 application, is rejected.

(iv) The court below is alerted to dispose of the OS No.171/2021 within the time frame fixed by this Court in OP(C)No.2542/2021.

The original petition is ordered accordingly.