The suit in O.S.No.28 of 1964, on the file of the Additional District Munsif Court, Kuzhithurai, has been laid for partition and redemption. It is found that a preliminary decree has been passed in the said suit on 07.08.1990, whereunder the plaintiff had been declared to be entitled to 5/54th share in the property involved in the suit and further directions have also been given in the preliminary decree. It is found that thereafter, the plaintiff had preferred I.A.No.1703 of 1980 to pass the final decree. It is found that the Advocate Commissioner, who had been appointed to inspect the property concerned, had inspected the property and filed his report with plan and it is also found that pending final decree application, the sole plaintiff died and his legal heir, namely, the revision petitioner had been brought on record. As seen from the records, on 24.09.2001, the final decree had been passed in the above mentioned suit allotting Plot-A, in Survey No.786, measuring an extent of 24.250 Cents, to the plaintiff. Thereafter, it is found that the revision petitioner had filed E.P.No.99 of 2002 for the delivery of the Plot-A ordered to be allotted to him in the final decree. It is found that the Amin, who had been deputed to effect the delivery, had effected the delivery of the said plot to the revision petitioner. Resisting the recording of delivery of the same, it is found that the contesting respondent had preferred E.A.No.59 of 2004 on the footing that the plaintiff is entitled to only 24.250 Cents as per the final decree passed in the suit, whereas he had been given delivery of excess extent and therefore, the delivery should not be recorded.
2. On the basis of the materials placed before the Court below in the above said E.A.No.59 of 2004, it is found that the Executing Court finally held that the delivery effected by the Amin is not correct and accordingly, refused to record the order of delivery. Challenging the same, it is found that the revision petitioner had preferred C.R.P.(NPD) No.1181 of 2004. In the said civil revision petition, after considering the rival contentions put forth by the respective parties, this Court had held that the correct measurements have not been done by the Amin, who had been deputed to effect delivery and also holding that inasmuch as the Amin was not able to say whether the exact extent of the area as provided in the final decree has been delivered, held that the order of the Executing Court refusing to record the delivery is perfect and accordingly, dismissed the revision petition above mentioned filed by the revision petitioner. However, it is also found that this Court, considering the facts and circumstances of the case, ordered that it is open to the revision petitioner to file a fresh application to direct the Amin to go and visit the property and take suitable measurements with the help of the Surveyor to enable the Executing Court to pass further orders in the execution petition.
3. In tune with the above said direction of this Court in the above mentioned civil revision petition, according to the revision petitioner, he has preferred E.A.No.263 of 2004 and as seen from the papers placed, the above said application has been preferred by the revision petitioner to depute the Amin to measure the whole property with the help of the Surveyor to find out whether the delivered area is in excess of 5/54th share of the whole property. The said application was stoutly resisted by the contesting respondent by filing a counter.
4. It is also noted that in the meanwhile, the contesting respondent has also preferred an application in E.A.No.29 of 2005, under Section 47 of the Code of Civil Procedure, wherein he has prayed the Court to enquire and adjudicate the question of dispute as to the identity of the property in terms of its area in Plot-A in the final decree in O.S.No.28 of 1964 of Kuzhithurai District Munsif Court to be delivered to the revision petitioner pursuant to the decree before the disposal of E.P.No.99 of 2002 and in the event of the Court findings that the area of the Plot-A is in disagreement to the provisions of the decree, the said execution petition be dismissed as unexecutable.
5. The Court below is found to have given precedence to the application preferred by the respondent in E.A.No.29 of 2005 and accordingly, has passed an order in E.A.No.263 of 2004 in the following manner:
?In view of the above circumstances of the case, the Court comes to conclusion that according to the direction in C.R.P.No.1181/2004, the plaintiff / decree holder filed this petition to take delivery of the plot. According to the direction given in the CRP, executing Court is directed the Amin to measure the plot which is allotted to the plaintiff with the help of surveyor. At the same time, the respondent has filed Section 47 CPC petition. Disputing the irregularities and errors found in the plan of final decree. So that application is pending for enquiry. In that section 47 CPC petition the respondent stated that the present plaintiff is having only 24.250 cents. He cannot claim ore than the area what he is not having right. So the measurement of the diagonal and side measurement of the plot A is in dispute. So, without deciding this Section 47 application filed by the respondent, this petition could not be decided. So, till the disposal of this section 47 application, which is numbered as E.A.No.29 of 2005, this application kept abeyance. After disposal of this E.A.29/2005, this application of E.A.No.263/2004 will be decided. Application is disposed of accordingly. The petitioner / plaintiff is liberty to file a fresh application after the disposal of E.A.No.29/2005.?
6. Considering the above mentioned order passed by the Court in E.A.No.263 of 2004, though the Court is well aware of the direction issued by this Court in the above mentioned civil revision petition and also the fact that the revision petitioner has preferred an application in E.A.No.263 of 2004 pursuant to the above said direction, considering the pendency of the application filed by the respondent in E.A.No.29 of 2005, held that the application filed by the revision petitioner in E.A.No.263 of 2004 has to be kept in abeyance and the same would be taken up after the disposal of E.A.No.29 of 2005 and in the same line, the Court below disposed of E.A.No.263 of 2004 and also gave liberty to the revision petitioner to file a fresh application, after the disposal of E.A.No.29 of 2005.
7. It is found that the Court below had taken up E.A.No.29 of 2005 for consideration and after considering the materials placed by the respective parties, allowed the said application on condition that the revision petitioner is entitled to get 24.250 Cents in Plot-A through E.P.No.99 of 2002 with diagonal measurements and also with link measurements of four side boundaries. The said order is under challenge in this civil revision petition.
8. Considering the rival contentions put forth by the respective parties, it is found that the relief sought for by the revision petitioner in E.A.No.263 of 2004 and the relief sought for by the respondent in E.A.No.29 of 2005 are closely interlinked and the same could be adjudicated only after the Amin had been directed to inspect the property concerned in accordance with the directions given by this Court in C.R.P.(NPD) No.1181 of 2004. In such view of the matter, when as per the decree passed in the suit the revision petitioner had already been held to be entitled to get Plot-A, measuring 24.250 Cents and when the same has already been, according to the revision petitioner, delivered to him, however according to the respondent, excess extent had been delivered to him and accordingly, this Court in C.R.P.(NPD) No.1181 of 2004, to sort out the issue had left it open to the revision petitioner to move the Executing Court to depute the Amin to take suitable measurements with the help of the Surveyor to enable the Court to pass further orders in the matter, in my considered opinion, the Court below should have clubbed both E.A.No.263 of 2004 and E.A.No.29 of 2005 together and accordingly as per the directions of this Court, after considering the contentions of the respondent, should have deputed a suitable Amin to visit and inspect the property and take measurements with the help of the Surveyor so as to identify as to what is the extent that had been actually delivered to the revision petitioner and whether the same is in tune with the decree passed in the suit and accordingly, should have proceeded further in the matter and disposed of the applications taking into consideration the report of the Amin with reference to the same. On the other hand, the Court below is found to have kept the application in E.A.No.263 of 2004 preferred by the revision petitioner in abeyance and proceeded further to dispose of E.A.No.29 of 2005 preferred by the respondent. This approach of the Court below, as rightly contended by the revision petitioner's counsel, is nothing but a flagrant violation of the directions issued by this Court and further, he would contend that only when the Amin goes and inspect the property and measure the same in tune with the directions of this Court, the issue could be sorted out and accordingly, prayed for the reversal of the impugned order and necessary directions to the Court below.
9. However, the learned counsel for the respondent contended that the prayer sought for by the revision petitioner in E.A.No.263 of 2004 is not in accordance with the directions issued by this Court in C.R.P.(NPD) No.1181 of 2004 and on the other hand, the revision petitioner is endeavouring to measure the whole property in the survey number, which cannot be done and therefore, the Court below had thought it fit that the application filed by the respondent should be taken up at the first instance and thereafter, considering the result of the said application, the application preferred by the revision petitioner should be taken up for consideration.
10. However, even if the prayer sought for by the revision petitioner in E.A.No.263 of 2004 is not in accordance with the directions issued by this Court in C.R.P.(NPD) No.1181 of 2004, as put forth by the respondent's counsel, even then the Court below is always at liberty to mould the relief sought for as per the directions of this Court in the above said civil revision petition and accordingly, should have deputed the Amin to ascertain the true facts as to whether the property that had been ordered to be delivered to the revision petitioner or in fact, already delivered to the revision petitioner is in accordance with the decree passed in the suit and in such view of the matter, the approach of the Court below in keeping E.A.No.263 of 2004 in abeyance and giving preference to E.A.No.29 of 2005 is found to be imperfect and also not in accordance with the directions issued by this Court in C.R.P.(NPD) No.1181 of 2004.
11. Particularly, when it is found considering the above factors that the reliefs sought for in both E.A.Nos.263 of 2004 and 29 of 2005 are closely interlinked with each other and the issues raised in both applications and also in the main execution petition could be sorted out only by deputing an Amin to inspect the property concerned with the help of the Surveyor as per the directions given by this Court, it is found that the impugned order cannot be allowed to stand as such and therefore, in my considered opinion, the impugned order is liable to be set aside and the matter should be remitted back to the Lower Court for taking up the said E.A.No.29 of 2005 with E.A.No.263 of 2004 jointly and to settle the issue, after deputing the Amin to visit the property concerned, measure the same with the help of the Surveyor and after the obtainment of the report with reference to the same.
12. In the light of the above discussions, the fair and decreetal orders, dated 02.11.2006 made in E.A.No.29 of 2005 in E.P.No.99 of 2002 in O.S.No.28 of 1964, on the file of the Principal District Munsif Court, Kuzhithurai, are set aside and the matter is remitted back to the Lower Court for fresh consideration. The Lower Court is directed to take up both E.A.Nos.263 of 2004 and 29 of 2005 together and accordingly, depute the Amin to visit the property concerned and take suitable measurements with the help of the Surveyor to enable it to pass further orders, after affording opportunities to the contesting parties to file their objections to the Amin's report, if any, and after affording opportunities to the contesting parties to adduce evidence in the matter afresh so as to give a final quietus to the long pending issue.
13. Accordingly, the civil revision petition is disposed of. Considering the facts and circumstances of the case, there is no order as to costs.
To:
The Principal District Munsif, Kuzhithurai.
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