IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 Ex.SA.No. 10 of 2011() ---------------------- AS.95/2008 of SUB COURT,NEYYATTINKARA EA.295/06 IN EP.283/04 IN OS.120/1983 of II ADDL.M.C.,NEYYATTINKARA .................... APPELLANT/ APPELLANT/ CLAIM PETITIONER ------------------------------------ RAJALAKSHMI, D/O. KUTTAN PANICKER, THALATHOPU VEEDU, KARUMKULAM VILLAGE, KARUMKULAM DESOM, THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENTS/ RESPONDENT(S)/ COUNTER PETITIONERS (DECREE HOLDER AND JUDGMENT DEBTORS 2 TO 12: --------------- 1. RAJAMMA, D/O. DAKSHAYANI, CHADAYANTE VILAKATH VEEDU AND ALSO HAVING RESIDENCE AT THALATHOPPU PUTHEN VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. 2. PADMAKSHI GEETHA,THALATHOPPU GOKULATHIL KARUMKULAM DESOM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. 3. JANAKI AMMUKUTTY, THALATHOPPU VEEDU, KARUKULAM DESOM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. 4. JANAKI CHELLAMMA, THALATHOPPU VEEDU, KARUKULAM DESOM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. 5. LAKSHMI CHELLAMMA, THALATHOPPU VEEDU, KARUKULAM DESOM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. 6. CHELLAMMA SATHIKUMARI, KAIMANKALA VEEDU, LURTHIPURAM, KARUKULAM DESOM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. 7. CHELLAMMA OMANA, SOBANA NIVAS, VILAYIL VILAKOM, KARUKULAM DESOM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. 8. KUTTAN ANANDARAJAN, THALATHOPPU VEEDU, KARUKULAM DESOM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. 9. KUTTAN SIVARAJAN, THALATHOPPU VEEDU, KARUKULAM DESOM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. 10. CHELLAMMA SREEDEVI, THALATHOPPU VEEDU, KARUKULAM DESOM, KARUKULAM VILLAGE, THIRUVANANTHAPURAM. 11. CHELLAMMA AMBILIKUMARI, THALATHOPPU VEEDU, KARUKULAM DESOM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. 12. CHELLAMMA SREELATHA, THALATHOPPU VEEDU, KARUKULAM DESOM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/07/2011, ALONG WITH EXSA 11/11, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ---------------------------------------------------- Ex.S.A.NOs.10 and 11 OF 2011 ----------------------------------------------------- Dated 5th July, 2011 JUDGMENT Final decree for partition was passed in O.S.120/1983. Two of the sharers who were allotted shares filed E.P.227/2004 and E.P.283/2004 before Second Additional Munsiff court, Neyyattinkara to get delivery of the properties. When the executing court directed delivery of the properties petitioner filed two claim petitions E.A.295/2006 in E.P.283/2004 and E.A.309/2006 in E.P.227/2004 claiming that she was not impleaded in the suit though she was also one of the legal heir of the deceased first defendant and the other legal heirs who were impleaded, did not contest the suit and colluded with the plaintiff and Ex.S.A.10 & 11/11 2 hence the decree is not binding on her and therefore her possession cannot be disturbed. Appellant had also contended that she is entitled to get the value of improvements, which was not considered in the final decree as she did not get opportunity to contest the final decree application as she was not impleaded. The executing court by order dated 7/7/2008 dismissed both the applications. Appellant challenged that orders before Sub Court, Neyyattinkara in A.S.94/2008 and A.S.95/2008. Learned Sub Judge on re- appreciation of the evidence dismissed both the appeals. They are challenged in these appeals. 2. Learned counsel appearing for the appellant was heard. 3. Argument of the learned counsel is that though the other legal heirs of the Ex.S.A.10 & 11/11 3 first defendant were impleaded, they did not properly contest the suit and as the appellant was not impleaded in the suit, the decree is not binding on her and hence her possession cannot be disturbed. Learned counsel would argue that appellant had effected improvements and she is entitled to get value of the improvements and it was not considered by final decree court as appellant did not get opportunity to raise the contentions and in such circumstances, claim petition should have been allowed. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeals. Admittedly, all the other legal heirs of the deceased first defendant Kesavan Kuttan were impleaded as additional defendants 5 to 12. Therefore, as rightly found by the courts below, there was Ex.S.A.10 & 11/11 4 sufficient substantial representation for the legal heirs. Even though it was contended that the legal heirs did not contest the suit and colluded with the plaintiffs the final decree was challenged upto the second appeal would establish that there was no collusion as claimed by the appellant. In such circumstances, when the appellant is claiming right only as one of the legal heirs of the first judgment debtor and the decree is binding on all the legal heirs including the appellant, courts below rightly rejected the claim petitions. Appeals are dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.