IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 AS.No. 29 of 1996() -------------------------- OS.613/1991 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANTS/PLAINTIFFS: --------------------------------------- 1. GOVINDANKUTTY, S/O. KATTUPPARAMBIL, VELAYUDHAN, NOW RESIDING AT WILLINGTON ISLAND, KOCHI - DIED - LRS IMPLEADED 2. GANGADHARAN, S/O. - DO - NOW RESIDING AT VYTTINLA, ERNAKULAM 3. DEVAKY, D/O - DO - RESIDING AT PARAMBA DESOM AND VILLAGE, MUKUNDAPURAM TALUK. - DIED - LRS IMPLEADED 4. KARTHYAYANI, D/O. - DO - RESIDING AT VADAKKUMKARA DESOM - DO - VILLAGE, - DO - TALUK. 5. SANTHA, D/O. - DO - RESIDING AT THANISSERY DESOM, KARALAM VILLAGE, - DO - TALUK. LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 6 TO 11 AS PER ORDER DATED 19.3.2009 IN I.A. NO. 2235 OF 2004. ADDL.A6 - PARUKUTTY, W/O. KATTUPARAMBIL VELAYUDHAN, WILLINGTON ISLAND, KOCHI. ADDL.A7 - RAVINDRANATHAN, S/O. - DO - - DO - ADDL.A8 - SUSEELA, D/O - DO - - DO - ADDL.A9 - RAJAN, S/O - DO -, - DO -. ADDL.A10- RADHA, D/O. - DO -, - DO - ADDL.A11 - RADHAKRISHNAN, S/O, - DO - - DO - BY ADVOCATE MR.K.G.BALASUBRAMANIAN AS.No. 29 of 1996() -2- RESPONDENTS/DEFENDANTS ------------------------------------------- 1. CHERIA, S/O. POTTATHUPARAMBIL DEVASSY, RESIDING AT VADAKKUMKARA DESOM AND VILLAGE, MUKUNDAPURAM TALUK. 2. SREEDHARAN, S/O. KATTUPARAMBIL VELAYUDHAN, RESIDING AT - DO - ADDITIONAL RESPONDENTS 3 TO 7ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OFTHE DECEASED 3RD APPELLANT AS PER ORDER DATED 19.1.2000 ON CMP NO. 4672 OF 1999 ADDL.R3 - NALINI D/O. MADATHIPARAMBIL KOCHAKKEN AND W/O. VELAMPARAMBIL SUDHAKARAN, RESIDING AT POTTA DESOM & VILLAGE, KUKUNDAPURAM TALUK. ADDL. R4 - BALACHANDRAN, S/O. MADATHIPARAMBIL KOCHAKKEN, ROOM NO. 6/181, THILAK NAGAR, CHEMBUR, BOMBAY - 37. ADDL.R5 - VENU, S/O. MADATHIPARAMBIL KOCHAKKEN, P.O.PERAMBRA, KODAKARA, THRISSUR. ADDL. R6 - THANKAMANI, W/O. VENU & D/O. MADATHIPARAMBIL KOCHAKKEN, RESIDING AT P.O. PERAMBRA, KODAKARA, THRISSUR. ADDL.R7 - MALLIKA,, D/O. MADATHIPARAMBIL KOCHAKKEN - DO - - DO - BY ADVOCATES MR..S.V.BALAKRISHNA IYER, SENIOR ADVOCATE MR..T.N.MANOJ FOR R2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 29 of 1996() C.M.P.No.132 OF 1996 IN AS.No. 29 of 1996 DISMISSED. SD/- M.SASIDHARAN NAMBIAR 19.3.2009 M.SASIDHARAN NAMBIAR, J. ================== A.S.No. 29 of 1996 ================== Dated this the 19th day of March, 2009. J U D G M E N T Plaintiffs in O.S. No. 613 of 1991 on the file of the Sub Court, Irinjalakuda are the appellants. Respondents are the defendants. On the death of third appellant, respondents 3 to 7 were impleaded as her legal heirs. Appellants 1 to 5 instituted the suit for recovery of possession on the strength of title. Plaint B schedule is part of the plaint A schedule property having an extent of 40 cents. Plaint A schedule property was allotted to the share of Velayudhan as per partition deed. Appellants 1 to 5, second respondent and deceased Narayanan are the children of Velayudhan. They are admittedly governed by Hindu Mithakshara Law. Appellants 1, 2 and second respondent and Narayanan were admittedly members of the coparcenary along with Velayudhan. Plaint A schedule property thus belonged to the coparcenary. For realisation of the amount due from Velayudhan under a demand promissory note, Thomas instituted O.S. No. 1037 of 1968. That suit was decreed on 9.2.1970. Prior to the decree, plaintiffs 1 and 2 along with the deceased Narayanan, the son of Velayudhan who died in 1971, instituted O.S. No. 61 of 1969 seeking partition of the coparcenary properties. A written statement was filed in that suit by Velayudhan on 30.1.1970 contending that plaint A schedule property is not a coparcenary property but his separate property. In execution of the decree in O.S. No. 1037/1968, the decree holder filed an execution petition and got plaint A schedule property attached on 27.1.1971. The plaint A schedule property was then sold on 25.1.1973 in the E.P. and was purchased by the decree holder Thomas. The sale was confirmed on 28.2.1973. Meanwhile, in O.S. No. 61 of 1969 a preliminary decree was passed on 16.1.1972. The decree holder/auction purchaser Thomas sold his rights obtained under the sales certificate to Kumaran, the binamidar of appellants, on 8.5.1973. The said Kumaran applied for delivery and on 5.6.1976, took delivery of the plaint A schedule property except the plaint B schedule property. After the preliminary decree was passed in O.S. No. 61 of 1969, second respondent along with Velayudhan sold their right in the Plaint B schedule property, in favour of the first respondent under Ext.B9 sale deed on 27.4.1973, pursuant to Ext.B8 agreement for sale dated 11.4.1973, when Kumaran attempted to take delivery of the plaint B schedule property, on the strength of Ext.B9 sale deed, first respondent resisted the delivery. EA No. 427 of 1973 was filed by Kumaran to remove the obstruction. Under Ext.B3 order dated 20.2.1974, the petition was allowed and Kumaran was permitted to take delivery of the property. Pursuant to Ext.B3 order, Kumaran took delivery of the property on 17.8.1982 evidenced by Ext.A7 delivery receipt. Though delivery was taken under Ext.A7, first respondent would contend that he was not dispossessed when delivery was taken under Ext.A7 and what was purchased in the court auction sale was only be the right of Velayudhan and not the right of other coparcenors. The first respondent thereafter, in view of the then provision of Section 103 of order XXI of Cr.P.C., instituted O.S. No. 140 of 1975 for declaration of his title under Ext.B9 and to set aside Ext.B3 order, passed by the executing court directing removal of obstruction. That suit was dismissed. It was unsuccessfully challenged in A.S. No. 118 of 1976. Under Ext.B4 judgment the appeal was dismissed on 8.9.1981. It was challenged before this Court in S.A. No. 376 of 1982. As per Ext.B5 judgment dated 16.6.1988 (Cheirya v Kumaran [1988 2 KLT 704]) the second appeal was allowed and the suit was decreed. A decree for declaration as prayed for by the first respondent holding that the right of the auction purchaser was the right available to the judgment debtor Velayudhan and appellants are only entitled to the said right of auction purchaser it was held that remedy is only to file a separate suit for appropriate relief. 2. O.S. No. 613 of 1991 was thereafter filed for recovery of possession contending that Kumaran was only the Binamidar of plaintiffs 1 and 2 and in O.S.No.261 of 1981 appellants 1 and 2 have already obtained a decree declaring that Kumaran the assignee of the auction purchaser was only a binamidar for them and though plaint B schedule property was taken delivery under Ext.A7 on 17.8.1982, subsequent to the disposal of S.A. No. 376 of 1982, Kumaran handed over possession of the property to the first respondent in 1988 and appellants have title to the plaint B schedule property and therefore on the strength of their title, they are entitled to a decree for recovery of possession. The respondents resisted the suit contending that the suit is barred by res judicata in view of the decree in S.A. No. 376 of 1982 and also by adverse possession and limitation. 3. The learned Sub Judge on the evidence of Exts.A1 to A10 and B1 to B27 dismissed the suit holding that the suit is barred by res judicata and their claim for recovery of possession is barred by adverse possession and limitation also. It is challenged in the appeal. 4. The learned counsel appearing for the appellant and the learned senior counsel appearing for the first respondent were heard. 5. There is no dispute on the factual matrix of the case. The appellants and the respondents are admitting that plant B schedule property forms part of the plaint A schedule property and plaint A schedule property was allotted to the share of Velayudhan. Appellants 1 to 2 and second respondent and deceased Narayanan are the sons of Velayudhan. They are governed by Hindu Mitakshara Law. Though in execution of the decree in O.S. No. 1037 of 1968, plaint A schedule property was sold in court auction sale and it was purchased by Thomas, the decree holder/auction purchaser, the suit was for realisation of the money due under the promissory note executed by Velayudhan in his individual capacity. In that suit Velayudhan was not representing the Coparcenary. Though in execution of the decree in O.S. No. 1037 of 1968, plaint A schedule property was attached and later sold in court auction, what could be attached and what could be sold in execution of the decree is only the fractional share of Velayudhan in the Coparcenary property. Being the assignee of the auction purchaser, Kumaran, the binamidar of the appellants 1 and 2 as declared in O.S. No. 261 of 1981, could get only that fractional share of Velayudhan. It is more so because, even prior to that attachment of plaint A schedule property on 27.1.1971, a suit decree for partition as O.S. No. 61 of 1969 was filed by appellants 1 and 2 seeking partition of plaint A schedule property as the coparcenary property. When a suit for partition is filed by two members of the coparcenary, the coparcenary is severed. Thus on the date of institution of the suit there was a severance of the coparcenary and as a consequence each member got a share in the coparcenary properties as on that date. Therefore when the plaint A schedule property was sold in execution of the decree in O.S. No. 1037 of 1968 and was purchased by Thomas on 25.1.1973, consequent to the severance of the coparcenary what could be claimed by the auction purchaser under the sale certificate and what could be obtained by Kumaran as per Ext.B9 sale deed obtained from the auction purchaser/decree holder, is only be that share available to Velayudhan on that date. The second respondent is also having an equal share, like Velayudhan. When under Ext.B9 along with Velayudhan, second respondent sold his right in favour of the first respondent, though by virtue of the court auction sale, Velayudhan had no alienable right in the property at that time, first respondent would get the share due to second respondent who would definitely step into the shoes of the second respondent. Therefore when second respondent is legally a co-owner along with the other co-owners first respondent is also a co-owner. Even if the case of the appellants that Kumaran the benamidar, handed over possession of the property to the first respondent is to be accepted, still first respondent would be a co-owner along with the appellants. Therefore a suit for recovery of possession is not maintainable. The remedy of the appellants is only to seek partition and recovery of possession of the share due to them. 6. Though learned Sub Judge found that the suit is barred by res judicata in view of the finding in S.A. No. 376 of 1982, as rightly pointed out by the learned counsel appearing for the appellants, the right agitated in S.A. No.376 of 1982 and the right obtained by the first respondent from the second respondent and Velayudhan under Ext.B9 sale deed. There was no denial of the right of the other co-owners, the members of the coparcenary consisting of Velayudhan and his sons. Therefore the question whether appellants 1 and 2 are having any right or title to the plaint A schedule property, as members of the coparcenary, was neither considered nor decided in S.A. No. 376 of 1982. Therefore based on the decision in S.A.No.376 of 1982 it cannot be said that the claim of title to the plaint B schedule property raised by the appellants is barred by res judicata. Similar is the case with the finding that the suit is barred by adverse possession and limitation. Even according to the first respondent, he obtained the rights of the second respondent and Velayudhan. Though consequent to the decree and the court auction sale in O.S. No.1037 of 1968, Velayudhan had no right, first respondent could definitely claim the rights of the second respondent in plaint B schedule property. Even according to the first respondent what was purchased by him is the fractional share of the second respondent. If that be the case first respondent, who stepped into the shoes of the second respondent, cannot deny the rights of the other fractional shares, who are co-owners with him. Appellants 1 and 2 are definitely co-owners along with the first respondent. Hence unless there is a plea of ouster to the knowledge of appellants 1 and 2, their right will not be barred by adverse possession. Hence, the right of appellants 1 and 2 is not lost by adverse possessions as found by the learned Sub Judge. Therefore the finding of the learned Sub Judge that claim of the appellants is barred by the res judicata and also that their right is lost by adverse possession and limitation are set aside. 7. Though the proper remedy of the appellants is to seek division of their share by a suit for partition, on the admitted facts, I do not find it in the interest of justice to compel the parties to institute another suit for partition. It is admitted case that a preliminary decree for partition of plaint A schedule property was passed in O.S. No. 61 of 1969 as early as 16.11.1972 evidenced by Exts.B1 and B2 the decree and judgment. Ext.B9, sale deed was obtained by first respondent from the second respondent. Ext.B9 itself provides that appellant can approach the court in the final decree in O.S. No. 61 of 1969 for allotment of the share of their assigners under Ext.B9. In such circumstances, it would be in the interest of justice to provide that, appellants are entitled to approach the court considering the final decree application in O.S. No.61 of 1969 to allot the plaint B schedule property to the share of the assigners as far as possible and feasible. The final decree court if possible and feasible to allot the property to the share of the second respondent who is entitled to a share under Ext.B1 decree. As first respondent is an assignee of the second respondent the property could be allotted to the share of second respondent which could be claimed by the first respondent. With the clarification, the appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE rhs