IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 SA.No. 710 of 1999(A) -------------------------------- AS.237/1987 of SUB COURT, PAYYANNUR OS.211/1982 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT(S) 1 TO 4 IN S.A./LEGAL REPRESENTATIVES OF DEFENDANT NO.8/ LEGAL REPRESENTATIVES OF RESPONDENT NO.8: ----------------------------------------------------------------- 1. THEKKEVEETTIL KALYANI, W/O.LATE PANAKKARAN KUMARAN, THEKKEVEETTIL HOUSE, ERAMAM AMSOM, MATHAMANGALAM DESOM, T TALIPARAMBU TALUK, KANNUR DISTRICT. 2. THEKKEVEETTIL PUSHPAVALLI, D/O.LATE PANAKKARAN KUMARAN, -DO- -DO- -DO- 3. THEKKEVEETTIL GEETHA, D/O.LATE PANAKKARAN KUMARAN, -DO- -DO- * (DIED) 4. THEKKEVEETTIL SURENDRAN, S/O.PANAKKARAN KUMARAN, -DO- -DO- * ADDL.A5 AND A6 IMPLEADED *ADDL.A5: THEKKEVEETTIL VINYA, D/O. THEKKEVEETTIL GEETHA. *ADDL.A6: THEKKEVEETTIL VIDYA, D/O. THEKKEVEETTIL GEETHA. * ADDL. A5 AND A6 ARE IMPLEADED AS ADDITIONAL APPELLANTAND RECORDED AS LRS OF 3RD APPELLANT VIDE ORDER DATED 14/7/06 IN IA.NO.1093/06. *THE 1ST APPELLANT IS RECORDED AS THE LEGAL HEIR OF THE 3RD APPELLANT VIDE ORDER DATED 14/7/06 IN IA.1093/06. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENTS 1 TO 6 IN S.A./LEGAL REPRESENTATIVES OFPLAINTIFF/LEGAL REPRESENTATIVES OF APPELLANT IN A.S.: --------------------------------------- 1. NALUPURAPPATTIL KARTHIAYANI, W/O.LATE K.K.KUNHIKANNAN, KAVINNARIKATHU HOUSE, MATHAMANGALAM, P.O.670 306, M.M.BAZAR, ERAMAM VILLAGE, TALIPARAMBU TALUK, KANNUR DISTRICT. sts S.A.NO.710/1999 2. BALAGOPALAN, S/O. LATE K.KUNHIKANNAN, -DO- -DO- -DO- 3. N.P.BHARGAVAN, -DO- -DO- -DO- 4. N.P.SANKARAN, -DO- -DO- -DO- 5. N.P.YESODA, D/O.LATE K.KUNHIKANNAN, W/O.P.V.GOVINDAN, (S/O.CHANDANKUNHI), P.O.THIRUMENI- 670 511 (VIA), CHERUPUZHA. 6. N.P.DEVI,D/O.LATE K.KUNHIKANNAN, W/O.P.P.SUKUMARAN, (S/O.CHIRUKANTAN) KOTHAYI MUKKU, KANDOTH DESOM, VELLUR AMSOM, P.O.KANDOTH, (VIA PAYYANNUR), KANNUR DISTRICT. RESPONDENTS 7 TO 10 IN S.A./DEFENDANTS 2 TO 5 /LEGAL REPRESENTATIVES OF 1ST DEFENDANT MANIKKAN/RESPONDENTS 2 TO 5 IN A.S.237/1987- IMPLEADED AS LEGAL REPRESENTATIVES OF RESPONDENT NO.1 MANIKKAN IN A.S.237/1987:- 7. SREEDEVI, D/O.LATE POTHERI VALAPPIL KANDANKORAN AND LATE MANIYADAN MANIKKAM, VAYAKKARA AMSOM, NERUMBU DESOM, P.O. PADIYOTTUCHAL, TALIPARAMBA TALUK, KANNUR DISTRICT. 8. KARUNAKARAN, S/O.LATE POTHENVALAPPIL KANDANKORAN AND LATE MANIYADAN MANIKKAM, VAYAKKARA AMSOM, NERUMBU DESOM, P.O. PADIYOTTUCHAL, TALIPARAMBA TALUK KANNUR DISTRICT. 9. KUNHIKANNAN, -DO- -DO- -DO- 10. KUNHIRAMAN, -DO- -DO- -DO- RESPONDENT NO.11 IN S.A./DEFENDANT NO.7 /RESPONDENT NO.7 IN A.S.:- 11. PANAKKARAN KUNHIRAMAN, S/O.LATE POTHERIVALAPPIL CHANDANKUNHI, ERAMAM AMSOM, P.O. PORAKKUNNY, TALIPARAMBU TALUK, KANNUR DISTRICT.**(DIED) RESPONDENTS 12 TO14 IN S.A./DEFENDANTS 9, 10 & 11/ RESPONDENTS 9/10 & 11 IN A.S.: 12. PARU, D/O.LATE POTHERI VALAPPIL CHANDANKUNHI, ARATHIL, CHERUTHAZHAM AMSOM AND DESOM, P.O.NAREEKAMBALLY, KANNUR DISTRICT. 13. YESODA, D/O.LATE POTHERI VALAPPIL CHANDANKUNHI, ERAMAM AMSOM, MATHAMANGALAM DESOM, P.O.MATHA MANGALAM, M.M.BAZAR, TALIPARAMBU TALUK, KANNUR DISTRICT. 14. JANAKI, D/O.LATE POTHERI VALAPPIL CHANDANKUNHI, MOOTTOOL AMSOM AND DESOM, P.O.MOOTTOOL, KANNUR DISTRICT. RESPONDENTS 15 TO 18 IN S.A./LEGAL REPRESENTATIVES OF 6TH DEFENDANT KUMARAN/LEGAL REPRESENTATVIES OF 6TH RESPONDENT KUMARAN: 15. THARAMMEL KARTHIYANI,W/O.LATE KUMARAN, CHERATTU, P.O.EDAT-670 307, VIA PAYYANNUR, KANNUR DISTRICT. S.A.NO.710/1999 16. THARAMMAL SAJIEEV, S/O.LATE KUMARAN, -DO- -DO- 17. THARAMMAL SATHEESH,S/O. LATE KUMARAN, -DO- -DO- 18. THARAMMAL SMITHA, D/O.LATE KUMARAN, -DO- -DO- ADDL.R19 TO R25 IMPLEADED ADDL.R19: NAYITHUR PARVATI, W/O.LATE PANAKARAN KUNJURAMAN, ERAMOM THOWRA, P.O.PURAKUNU, 670 306 VIA MATHAMANGALAM, ERAMAM VILLAGE, TALIPARAMPU TALUK, KANNUR DISTRICT. ADDL.R20: N.CHANDRAKUMAR, S/O.LATE PANAKARAN KUNJURAMAN, ERAMOM THOWRA, P.O.PURAKUNNU, 670 306 VIA MATHAMANGALAM, ERAMAM VILLAGE,TALIPARAMPU TALUK, KANNUR DISTRICT. ADDL.R21: N.KAMALAM, D/O.LATE PANAKARAN KUNJURAMAN, ERAMOM THOWRA, P.O. PURAKUNNU, 670 306 VIA MATHAMANGALAM, ERAMAM VILLAGE,TALIPARAMPU TALUK, KANNUR DISTRICT. ADDL.R22: N.BABU, S/O.LATE PANAKARAN KUNJURAMAN, ERAMOM THOWRA, P.O. PURAKUNNU, 670 306 VIA MATHAMANGALAM, ERAMAM VILLAGE, TALIPARAMPU TALUK, KANNUR DISTRICT. ADDL.R23: N.SASI, S/O.LATE PANAKARAN KUNJURAMAN, ERAMOM THOWRA,P.O.PURAKUNNU, 670 306 VIA MATHAMANGALAM, ERAMAM VILLAGE,TALIPARAMPU TALUK, KANNUR DISTRICT. ADDL.R24: N.PUSHPALATA D/O. LATE PANAKARAN KUNJURAMAN, ERAMOM THOWRA,P.O. PURAKUNNU, 670 306 VIA MATHAMANGALAM, ERAMAM VILLAGE, TALIPARAMPU TALUK,KANNUR DISTRICT. ADDL.R25: N.BALAKRISHNAN, S/O.LATE PANAKARAN KUMARAN, THAVIDISSERY, P.O.PURAKUNNU, VIA MATHAMANGALAM,ERAMAM VILLAGE, TALIPARAMPU TALUK, KANNUR DISTRICT. ** ADDL.RESPONDENTS 19 TO 25 ARE IMPLEADED AS THE LHRS. OF DECEASED R11 AS PER THE ORDER DATED 05/01/2011 IN IA.NO.1967/2010. R1 TO R6 BY SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE BY ADVS. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN R7 TO R10, 15 17 18 BY ADV. SRI.M.SASINDRAN R11 TO R14 BY ADV. SMT.M.R.SANTHI ADDL.R19 TO R25 BY ADV. SRI.K.RAJESH KANNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.710/1999 ORDER ON C.M.P.NO.1925/1999 IN S.A.NO.710/1999 DISMISSED 24/02/2011 SD/-P. BHAVADASAN, JUDGE /TRUE COPY/ P.S.TO.JUDGE sts P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 710 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of February, 2011. JUDGMENT The eighth defendant in O.S.211 of 1982, which was a suit for partition is the appellant. The facts fall within a narrow compass. 2. According to the plaintiff, his predecessor in interest, Raman, obtained the property on kuzhikanom rights along with his brothers Kandankoran and Chandankunhi. Raman died on 15.4.1967, Kandankoran died in 1965 and Chandankunhi died in 1981. The plaintiff in the suit is the legal heir of Raman. Legal heirs of Kandankoran are the first defendant, his wife and defendants 2 to 6. Legal heirs of Chandankunhi are defendants 7 to 11. Consequent on the death of Raman, he laid claim for 1/3rd share over the property. The plaintiff did not want to continue the joint possession and therefore a suit was laid. S.A.710/1999. 2 3. It appears that resistance was offered by defendants 7 to 11. They dispute the title set up by the plaintiff and pointed out that their predecessor in interest had obtained four acres of property, and it exclusively belonged to them. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A14 from the side of the plaintiff. The defendants adduced no oral evidence but marked Exts. B1 to B16. The trial court initially found that the plaint schedule property had not been identified and dismissed the suit. The aggrieved plaintiff carried the matter in appeal as A.S.237 of 1987. The lower appellate court differed from the view of the trial court and found that the trial court was unjustified in dismissing the suit and allowed the appeal and passed a preliminary decree, which reads as follows: “1. The schedule item shall be divided into 90 equal shares, out of which the plaintiff is S.A.710/1999. 3 allowed 30 such shares, defendants 1 to 6 are allowed 30 shares in a group and defendants 7 to 11 are allowed 30 shares in a group. 2. The identification of the property as per Ext.A6 shall be made at the time of the final decree proceedings. 3. The question of reservation of the house, if it is found that it is within the schedule item the house is situated shall be decided at the final decree stage and the issue whether the house is situated in the schedule item is left open to be decided at the final decree stage. 4. The plaintiff is allowed mesne profits, the quantum and liability of which shall be decided at the final decree stage. 5. The parties who have paid requisite court fee shall apply for final decree for partition. 6. The cost of the suit will come out of the estate.” 5. It appears that the aggrieved respondent carried the matter in appeal as S.A. 215 of 1989. This court while dealing with the matter has observed that the building in the suit property had not been scheduled. Therefore it S.A.710/1999. 4 was felt that the suit is bad for partial partition. Since the judgment of the lower appellate court suffered from serious infirmities, according to learned counsel, the appeal was allowed and the matter was remanded to the lower appellate court for fresh consideration. 6. After remand, it appears that the plaintiff produced Ext.A18 and the contesting defendants produced Ext.B17. Commission report and plan were obtained and marked as Exts.C1 C2. The lower appellate court on a meticulous consideration of the matter found that the plaint schedule property has been properly identified and the plaint schedule contained building and accordingly passed a preliminary decree, which reads as follows: “In the result, the appeal is allowed, the decree and judgment passed by the trial court are set aside and a preliminary decree for partition is passed as follows:- i) that the plaint schedule property which is described as plots C and D in Ext.C2 plan shall be divided by metes and bounds into three equal shares and one such share shall allotted to S.A.710/1999. 5 appellants 2 to 7 jointly who are the legal representatives of deceased plaintiff and one such share shall be allotted to respondents 2 o 5 and 2 to 15 jointly. Respondents 7, 9 to 11 and 14 to 19 together are entitled to the remaining one share, which shall be allotted only on payment of requisite court fee; ii) that the appellants 2 to 7 are entitled to get mesne profits due to their 1/3rd share, the quantum of which will be decided in the final decree proceedings; that respondents 7,9 to 11 and 16 to 19 are made liable for payment of mesne profits due to the appellants. iii) that any of the parties are at liberty to file application for passing final decree. v) that the cost of the suit shall come out of the estate. The suit is adjourned sine die.” The said judgment and decree are assailed in this appeal. 7. Learned counsel appearing for the appellant pointed out that the suit property had not been properly identified and consideration of the contention regarding lis pendens is far from satisfactory. It is also pointed out that the contesting defendants have also obtained Ext.B4 S.A.710/1999. 6 purchase certificate, and that ought to have been taken into consideration. 8. There is absolutely no merit in the above contentions. The commissioner deputed has filed a report and plan. There was no attempt from the side of the contesting defendants to get the property covered by Ext.B4 identified and on the basis of which they sought to deny title of the plaintiff. The commissioner deputed by the court below has identified the plaint schedule property with respect to Exts.A6 and A10 and also given details as to how he has identified the property. There is nothing to show that the identification made by the commissioner suffers from any infirmities. There is nothing to show that there was any attempt to show that the commission report is erroneous or contrary to true state of affairs. The lower appellate court was therefore perfectly justified in accepting Exts.C1 and C2. 9. As regards the doctrine of lis pendens, the court below has found that the doctrine is not attracted since Ext.A6 was issued in pursuance to Ext.A3 order, which S.A.710/1999. 7 has become final and conclusive. There is nothing to indicate that the findings are either perverse or unwarranted by the evidence on record. No question of law, much less any substantial question of law arises for consideration in this second appeal. The result is that, this appeal is without merits and it is liable to be dismissed. I do so. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.