IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 AS.No. 315 of 2000(C) ------------------------------- [AGAINST THE JUDGMENT AND DECREE IN OS.NO.97/1994 OF SUB COURT, VADAKARA, DATED 30/09/1999] .................... APPELLANT/PLAINTIFF: ----------------------------------- PUTHOOR KUNHABDULLA, PARAVANTEPOYIL, VILLIAPPALLY AMSOM, DESOM, VADAKARA. BY ADV. SRI.PARTHASARATHY. RESPONDENTS/DEFENDANTS: --------------------------------------------- 1. VANNATHANKANDIYIL RADHA AMMA, VILLIAPPALLY AMSOM, DESOM, VADAKARA TALUK. 2. VANNATHANKANDIYIL JANAKY AMMA -DO- 3. VANNATHANKANDIYIL VALSALA AMMA, -DO- 4. VANNATHANKANDI PARVATHI AMMA, VADAKKE PEEVELI, VILLIAPPALLY AMSOM, DESOM. 5. DAUGHTER LAKSHMIKUTTY AMMA -DO-. 6. SISTER KAMALA AMMA -DO-. 7. VANNATHANKANDIYIL BABU, VILLIAPPALLY AMSOM, DESOM, VADAKARA TALUK. 8. BROTHER BALAKRISHNAN -DO-. 9. SISTER SARASWATHY -DO-. A.S. NO.315/2000-C: 10. SISTER USHA -DO-. 11. BROTHER UN NAMED MALE CHILD (MINOR) -DO-. 12. VANNATHANKANDIYIL BALAKRISHNAN GURUKKAL -DO-. 13. VANNATHAN KUNHIKRISHNAN GURUKKAL -DO-. 14. VANNATHANKANDIYIL MURALEEDHARAN GURUKKAL -DO-. 15. VANNATHANKANDIYIL MOHANAN GURUKKAL -DO-. 16. BROTHER RAMAKRISHNAN -DO-. 17. VANNATHANKANDIYIL SANTHOSH KUMAR -DO-. 18. BROTHER VINOD KUMAR -DO-. 19. SISTER JYHOTHI -DO-. 20. BROTHER RENJITH KUMAR -DO-. 21. VANNATHANKANDIYIL KUNHIRAMAN GURUKKAL -DO-. 22. KATHIROLI MADATHIL JANAKY AMMA -DO-. 23. KUNIYIL JANU -DO-. 24. NADUVILAKANDIYIL KELAPPAN -DO-. *25. AYIROT MEETHAL AMMALU -DO- *(DIED). 26. BROTHER BALAN -DO-. 27. MOYILOTH KANDIYIL AMMUKUTTY AMMA -DO-. 28. SISTER JANAKI -DO-. 29. BROTHER BALAKRISHNAN GURUKKAL -DO-. 30. BROTHER SANKARAN GURUKKAL -DO-. 31. KUNIYIL KUNHABDULLA -DO-. 32. WIFE BIYYATHU -DO-. 33. PUTHANPURAYIL MANI, PULPPALLY AMSOM, DESOM, PULPPALLY TALUK, WAYANAD DISTRICT. A.S. NO.315/2000-C: 34. DAUGHTER UNNAMED FEMALE CHILD (MINOR), REPRESENTED BY 33RD RESPONDENT. *IT IS RECORDED THAT RESPONDENT NO.25 IS DEAD AND HER LEGAL REPRESENTATIVE IS RESPONDENT NO.26 WHO IS ALREADY IN THE PARTY ARRAY VIDE ORDER DTD. 14/12/2011 IN C.M.P. NO. 560/2001. ADV. SRI.C.K.SIVASANKARA PANICKER, SENIOR ADVOCATE R1, R7 TO R11 BY ADVS. SRI.K.I.MAYANKUTTY METHER, SRI.S.AMINA, R2, R14 TO R6 BY ADVS. SRI.V.SIVASWAMY, SRI.G.ARUMUGOM PILLAI, R3, R17 TO R20 BY ADV. SRI.K.N.SIVA SANKARAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26/05/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T When the appeal was taken up for hearing on 25/05/11, neither the appellant nor the counsel was present. Therefore, the matter was adjourned to today. Today also there is no representation. The appeal is dismissed for default. 26/05/2011. SD/- HARUN-UL-RASHID, JUDGE. //TRUE COPY// P.A. TO JUDGE. prv. P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - A.S.No. 315 of 2000 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of August, 2011 J U D G M E N T The plaintiff who was non-suited by the trial court is the appellant. 2. According to the plaintiff, the plaint schedule property originally belongs to Raman Gurukkal who assigned it to the plaintiff under Exts.A4 and A5 dated 03.10.1977 and 13.12.1977 respectively. Ever since then the plaintiff has been in the absolute possession and enjoyment of the property. Defendants 4 to 6 are the wife and children of Raman Gurukkal. Properties originally belongs to the Ayiroor tharavadu . It was outstanding on lease. The said lease hold right was obtained by Raman Gurukkal as per the document dated 27.02.1945. Thereafter he filed OS 556/1945 before Munisiff Court Vatakara against the tenants and obtained delivery of property as per a compromise decree. Subsequently it is assigned in favour of the plaintiff as per two documents in 1977. It is 2 A.S.No. 315 of 2000 pointed out that the defendants 1 to 3 has no right or possession over the suit property. There was a partition suit as OS43 of 1979 in which the plaintiff was shown as the 19th defendant and Raman Gurukkal was shown as the second defendant. The second defendant contended that suit property was liable to be partitioned. In the said suit, it was found that item No.5 in the plaint schedule property was not the property covered by Exts.B13,B14 and B15. In the said suit the item No.5 is available for partition. The complaint of the plaintiff is that in execution of final decree, his property was sought to be taken delivery of. Even though it is found that properties covered by Exts.B13, B14 and B15 in OS 43/1979 was not item No,5 involved in the said suit. He therefore laid the suit for necessary reliefs. 3. First defendant contested the suit pointed out that as per the documents of 1977 plaintiff had not obtained any right over the suit property. Since the plaintiff was a party 3 A.S.No. 315 of 2000 to the earlier suit, he bound by decree. After delivery of the property, the present suit is not maintainable. On the basis of these contentions he prayed for the dismissal of the suit. 4. Defendants 2 and 3 filed written statement in which it is contended that property originally belonged to the Sankaran Gurukkal and he died on 05.01.1945 and his rights devolved on his mother Lakshmi Amma and the said Lakshmi Amma along with item No.2 and 4, the suit property involved in OS43/1979 gifted to the same in favour of defendants 1,2 and 3 as per gift deed dated 11.03.1960. Thus the property belongs to the defendants 1,2 and 3. Present plaint schedule property in item No,.5 of OS 143/1979 is one and the same. Therefore it is contended that the issue involved in the present suit covered by judgment in OS 43/1979, it was confirmed in appeal as AS.465/1986 and that suit is barred by res judicata. On the basis of these contentions they prayed for dismissal of the suit. 4 A.S.No. 315 of 2000 5. It appears that the court below appointed court guardians for D11 and D36 and a written statement filed pointing out that they are unnecessary parties. 6. On the basis of above pleadings issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A7 from the side of the plaintiff. Defendants had DW1 examined and Exts.B1 to B15 marked. Exts.C1 and C2 are the Commissioners report and plan and Ext.X1 is the third party Ext. 7. The trial court found that the plaint schedule item in the present suit is item No.5 in the earlier suit i.e. OS 43/1979 and that the issue was covered by the earlier judgment and dismissed the suit. 8. The said judgment and decree are challenged in this appeal. 9. The learned counsel appearing for the appellant contended that court below has misdirected itself both ON facts and in law. Definite contention of the appellant, 5 A.S.No. 315 of 2000 according to the counsel was that properties covered by Exts.B13, B14 and B15 produced in OS43/1979 did not relate to the item No.5 and that properties covered by the said documents are not available for partition in the earlier suit. Even though it is found to be so, complaint of the plaintiff that was in execution of the final decree for partition the property was proceeded against. It is pointed out that the defendants relied on certain documents, to lay claim to the suit property. The court below should have ascertained whether the properties covered by documents produced by the plaintiff and defendants relate to the same property. The court below was erred in coming to the conclusion that the plaintiff had laid claim to the plaint item No.5 involved in OS43/1979 which was found to be partible in that suit and was confirmed in appeal. This fundamental error has resulted in miscarriage of justice. 10. After having heard the counsel and perusing the records, it is found that there is substance in the complaint 6 A.S.No. 315 of 2000 made by the plaintiff. The stand of the plaintiff was that property covered by Ext. A4 and A5 is not the property shown as Item No,5 in the earlier suit i.e. OS 43/1979. It is true that in OS 43/1979 item No,5 in that suit was found to be partible. In that suit there was a finding that property covered by Ext.B13 ,B14 and B15 in the said suit was not item No.5 to the plaint therein which was found to be partible. The claim of the plaintiff in the present suit is that this property forms the part of the documents covered by Exts. B13,14 and 15 produced in the earlier suit and therefore in execution of the final decree for partition in the earlier suit, the the present plaint schedule property could not have been proceeded against. 11. A reading of the lower court judgment shows that the court was under the impression that plaintiff was claiming item No.5 involved in the earlier suit. It does not appear to be so. It is also to be noticed that defendants have no case that plaintiff has laid claim to the very same 7 A.S.No. 315 of 2000 item and they rely on the various other documents. In the light of these facts, the attempt should have been to identify the properties claimed by respective parties with respect to their respective documents and then ascertain whether title and rights over the properties with reference to the claims made by the parties. Commissioner has only identifed the properties covered by Exts. A4 and A5 and there was no attempts on the side of the defendants to have their property identified on the basis of the of documents relied on by them. It does not appear that the defendants claimed on the basis of final decree proceedings in the earlier suit or on the basis of delivery effected in execution of the final decree. 12. The court below has misdirected itself both on facts and in law. It has not considered the pleading and the evidence in the proper perspective. Therefore It has become necessary to remand the matter to trial court for fresh consideration. 8 A.S.No. 315 of 2000 13. In the result, this appeal is allowed and the impugned judgment and decree are set aside and the matter is remanded to the lower court for fresh consideration in accordance with law and in the light of what has been stated above. Parties shall appear before the lower court on 03.10.2011. Parties are liberty to adduce further evidence, if they chose so. Forward a copy of this judgment to the trial court. P.BHAVADASAN, JUDGE kkj