IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 SA.No. 837 of 2000(G) --------------------- AS.135/1994 of SUB COURT,NEYYATTINKARA OS.609/1980 of II ADDL.MUNSIFF'S COURT, NEYYATTINKARA .................... APPELLANT(S)/APPELLANT/PLAINTIFF: -------------- KESAVAN NAIR,K.R.RAJAN, ENCHAKKAL VEEDU, PERUNTHANNI, THIRUVANANTHAPURAM FROM MEKKETHANNIVILAKOM KETTIDOM, ALUMMOODU WARD, KADAVATTARAM DESOM, NEYYATTINKARA PAKUTHY. BY ADV. SRI.R.S.KALKURA RESPONDENT(S)/RESPONDENTS/DEFENDANTS 1 TO 3 AND ADDL.DEFENDANTS 5 TO 11: --------------- 1.VELAYUDHAN SURENDRANATHAN, AGED 47, CONDUCTING A WORKSHOP, RESIDING AT MEKKETHANNI VILAKOM, VADAKKETHATTU, ALUMMOODU WARD KADAVATTARAM DESOM, NEYYATTINKARA PAKUTHY. 2.PONNAMMA PILLAI AMMUKUTTY AMMA, C.BLOCK NO.113/59, SWAROOP NAGARA CANPUR, UTTERPRADESH, FROM MEKKETHANNI VILAKATHU VEEDU, OF DO. DO. 3.JANAKI AMMA BHAGAVATHI AMMA CALLED AS THANKI, AMBALATHUMVILAKATHU VEEDU, KADAVATTARAM DESOM, NEYYATTINKARA PAKUTHY. 4.SAKUNTHALA KUMARI,S/O.BHAGAVATHI AMMA, AGED 35 YEARS, NAIR-HINDU, AMBALATHUVILAKATHU VEEDU, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE. 5.SREEKUMARAN NAIR, S/O.SIVASANDARAN NAIR, AGED 32 YEARS, NAIR-HINDU OF DO. DO. 6.RAJESWARI AMMA, D/O.BHAGAVATHI AMMA, AGED 29, OF DO. DO. 7.VASANTHA KUMARI AMMA, D/O.BHAGAVATHI AMMA, AGED 26, OF DO. DO. S.A.NO.837/2000 8.GOPAKUMARAN NAIR, S/O.SIVASANKARAN NAIR, AGED 23 OF DO. DO. 9.SIVAKUMARI, D/O.BHAGAVATHI AMMA, AGED 21 OF DO. DO. 10.SIVAKUMAR, S/O.SIVASANKARAN NAIR, AGED 20 OF DO. DO. ADV. SRI.K.S.HARIHARAPUTHRAN FOR R3,4&10 SRI.P.J.JOSEPH FOR R3 SRI.GEORGE MATHEW FOR R4 & R10 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON 01/10/2010 DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.837 OF 2000 (G) ----------------------------------- Dated this the 1st day of October, 2010 J U D G M E N T Plaintiff in a suit for declaration of title, recovery of possession and fixation of boundary is the appellant. Both the courts below have concurrently held that he is not entitled to the reliefs canvassed for, mainly, for the reason that the suit is bad for non-joinder of necessary parties. So much so, in the present appeal, the short question germane for consideration is whether the finding so entered by the two courts below to non-suit the plaintiff holding that the suit is not maintainable as bad for non- joinder of necessary parties, is correct. 2. Facts necessary for disposal of the appeal can be summed up thus: Plaintiff has claimed derivative title along with the 2nd defendant over plaint A schedule property, having an extent of 7.5 cents. B schedule is a building from which eviction of the 1st SA.NO.837/2000 2 defendant was sought for, and C schedule, a portion of A schedule, over which recovery of possession and also putting up boundaries was sought for. The case of the plaintiff in a nutshell is thus: Plaint A schedule belonged to one Parameswaran Pillai and his sister Bhageerathi Pillai, which, in fact, was not seriously disputed in the case. Parameswaran Pillai, died issueless and his rights over the property devolved upon Bhageerathy Pillai and Ponnamma Pillai, his two sisters. The husband and children of Bhageerathy Pillai pre-deceased her and her rights too devolved on the children of Ponnamma Pillai, her sister. Thankamma PIllai and four others, children of Ponnamma Pillai, released their right in favour of their sister Rajamma under Ext.A1 deed. 2nd defendant is another daughter of Ponnamma Pillai and, sister of the executants of Ext.A1 deed and Rajamma, who too had obtained right over the A schedule as a legal heir of Ponnamma Pillai. Rajamma is no more and plaintiff is her sole legal heir. Rajamma had previously filed a petition for eviction of the 1st defendant from B schedule building, which was let out to that SA.NO.837/2000 3 defendant by the husband of Rajamma. Title of Rajamma having been disputed by the 1st defendant, the petition for eviction was withdrawn and, later, the present suit was filed for the reliefs aforesaid. Since the 2nd defendant too has title over the property declaration is sought for on her behalf also and as she could not join the plaintiff when the suit was instituted. The 2nd defendant has supported the case of the plaintiff. The contesting 1st defendant resisted the claim of the plaintiff disputing the derivative title over the property and, further, contending that Parameswaran Pillai, one of the acquirers of the property, is survived by children and did not die as a bachelor and issueless as alleged. In the written statement, particulars of his children were also stated by the 1st defendant contending that they are necessary parties to the suit, and as they have not been impleaded, the suit is bad for non-joinder of necessary parties. 3. Both the courts, on the materials placed, have concurrently upheld the contention raised by the contesting 1st defendant that late Parameswaran Pillai, one of the acquirers of SA.NO.837/2000 4 the property, was survived by his children, and the suit instituted without impleading them in the party array, in which, declaration of title was claimed by the plaintiff with the 2nd defendant over the suit property is bad for non-joinder of necessary parties and, therefore, not maintainable. Propriety and correctness of that finding is assailed in this appeal. 4. No oral evidence was tendered by the plaintiff to substantiate the case that Parameswaran Pillai was survived by his children. The 1st defendant got examined DW4 as one of the children of Parameswaran Pillai. The evidence of that witness corroborated by the extract of his admission register of a school, in which, the name of Parameswaran Pillai is shown as his father, was found credible and trustworthy to the learned Munsiff, and that finding, after re-appreciation of the materials, was confirmed by the lower appellate court. DW4 is not the son of Parameswaran Pillai but someone who was set up by the 1st defendant to claim so, that too, on the basis of a bogus document collected, an extract admission register showing the name of SA.NO.837/2000 5 Parameswaran Pillai as the father of the ward therein, was the case of the plaintiff to impeach the testimony of that witness before the court. In a previous suit, in which Parameswaran Pillai was a party and on his death during its pendency neither DW4 nor anyone else was impleaded as his legal representative was another circumstance projected by the plaintiff to contend that Parameswaran Pillai died issueless and DW4 is not his son. Both the courts found no merit in the contention raised by the plaintiff to impeach the evidence of DW4 asserting that he is the son of Parameswaran Pillai. As rightly observed by the lower appellate court, the non-impleadment of the children of Parameswaran Pillai in a previous suit, on his death during its pendency, is an innocuous circumstance which has no bearing on the issue arising for consideration in the suit whether Parameswaran Pillai had children or he died issue less. Any person who represents the estate of deceased is to be brought in as legal representative of a person where death of that party occur during the pendency of a suit or proceeding. Even a person who intermeddles the estate of the deceased can also be SA.NO.837/2000 6 brought in as a legal representative on the death of a party suing or sued. “Legal representative” defined under Section 2 (11) of the Code of Civil Procedure includes heirs or any other person who represents the estate of the deceased person. In the previous suit, no step was taken by the plaintiff therein to bring in the legal representatives of Parameswaran Pillai, and none has been impleaded as his children, without anything more, is hardly sufficient to sustain the case set up by the plaintiff that Parameswaran Pillai died as a bachelor and issueless. Where the 1st defendant in his written statement supplying the particulars of the children of Parameswaran Pillai raised the plea of non-joinder of parties and also examined DW4 as one among his children, whose testimony was corroborated by a valid piece of documentary evidence having strong probative value of acceptance until its genuineness is shown to be doubtful or its validity is impeached by other legal evidence, the circumstance projected by the plaintiff as to the non-impleadment of any legal representatives of Parameswaran Pillai, on his death, in a previous suit has no merit. The learned Munsiff, who had the SA.NO.837/2000 7 opportunity to watch the demeanour and deportment of DW4, found his testimony reliable, convincing and credit worthy. As already stated, his assertion that he is the son of Parameswaran Pillai is corroborated by Exts.B4. Ext.B4 is the extract of the admission register of the witness and Ext.B5 that of his brother, both of whom are stated as the children of Parameswaran Pillai. The lower appellate court had fully concurred with the finding formed by the trial court after examining the evidence of DW4 with reference to the aforesaid documentary evidence. There is no infirmity in the conclusion concurrently formed by these courts below to enter a finding that DW4 has been proved to be the son of Parameswaran Pillai, and as such, the case of the plaintiff that Parameswaran Pillai died issueless is unacceptable and the suit is for non-joinder of necessary parties. Needless to point out that the lower appellate court is the final authority on finding of fact and it is not open to interference by this Court unless it is shown that the appeal involved any substantial questions of law for consideration. No such substantial question of law has been made out in the appeal, and the appeal is devoid SA.NO.837/2000 8 of any merit and it is dismissed, directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.837 OF 2000 (G) ----------------------------------- J U D G M E N T 1st day of October, 2010 SA.NO.837/2000 10