IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 SA.No. 547 of 2000(F) --------------------- AS.74/1993 of 1ST ADDL.DISTRICT COURT,THIRUVANANTHAPURAM OS.541/1980 of PRINCIPAL MUNSIFF'S COURT,NEYYATTINKARA .................... APPELLANT(S): RESPONDENTS 2 & 10/DEFTS 2 & 10: -------------------------------------------------------------------------------- *1. JANARDHANAN GOPINATHAN, POOMUGHAM VEETTUVILAKATHU MELEPUTHEN VEEDU, MEKKOLLA DESOM, KOLLAYIL VILLAGE, NEYYATTINKARA TALUK. (REST 2) ( D I E D) - LR'S IMPLEADED: 2. VASANTHAKUMARI, W/O.SURENDRAN, PUTHUVAL PURAYIDOM, KUNNATHUKAL DESOM FROM POOMUGHAM, VETTUVILAKATHU MELE PUTHEN VEEDU, MEKKOLLA DESOM, KOLLAYIL VILLAGE. (RESPONDENT NO.10). *ADDL.APPELLANTS A3 TO A6 IMPLEADED: A3. C.SREEMATHI AMMA, SYLENDRA BHAVAN, NEAR MARKET (JUNCTION), KULASEKHARAM 629 161 .K.D.(DT), TAMIL NADU. A4. G.SYLENDRA KUMAR, RESIDING AT ..DO..DO.... A5. G.SIVA KUMAR, RESIDING AT ..DO...DO... A6. G.GOPA KUMAR, RESIDING AT ..DO..DO.... (*ADDL.A3 TO A6 ARE IMPLEADED AS THE LR'S OF THE DECEASED 1ST APPELLANT AS PER ORDER DTD. 28/01/2011 IN I.A.NO.239/2011. ADDL.A3 TO A6 BY ADV. SRI.L.MOHANAN SRI.D.SAJEEV. Kss ..2/- ..2... S.A.NO.547/2000 RESPONDENT(S): APPELLANT /PLAINTIFF & RESPONDENTS 1,3 & 5 TO 9: (PLAINTIFF & DEFENDANTS 1,3 & 5 TO 9) (4TH RESPONDENT DIED AFTER APPELLATE COURT DECREE) ------------------------------------------------------------------------------------------ 1. GORGON MORAES G.A.P. MORAES (SPELLED GOEGON MORAYIS GA.P. MORAYIA IN THE JUDGMENT) THUMPARA VEEDU, CONVENT ROAD, RESHIMANGALAM, VANCHIYOOR. NOW RESIDING AT PALLICKAL, T.C.14/318, CATHEDRAL LANE, EXTRA POLICE ROAD, CONTONMENT, TRIVANDRUM (APPELLANT). **2. CHUPPAMMA THAYAMMA, POOMUGHAM VEETTUVILAKATHU MELEPUTHEN VEEDU, MEKKOLLA DESOM, KOLLAYIL VILLAGE, NEYYATTINKARA TALUK. ( D E L E T E D). **3. K.SOMAN PANICKER, PUTHUVAL PURAYIDOM, KUNNATHUKAL DESOM, KUNNATHUKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.( D E L E T E D).(3RD RESPT). **4. SOMAN PANICKERUNNI, OF ..DO.... (5TH RESPT)-(D E L E T E D) **5. BHAGAVATHI AMMA SUJATHA, OF ..DO..(6TH RESPT) (DELETED) **6. VELUPILLAI SASI, OF ...DO....(7TH RESPT) (D E L E T E D) 7. JANARDHANAN SHANMUGHAM PILLAI, PUTHUVAL PURAYIDOM KUNNATHUKAL DESOM FROM POOMUGHAM, VEETTUVILAKATHU MELE PUTHEN VEEDU, MEKKOLLA DESOM, KOLLAYIL VILLAGE. (8TH RESPT). 8. SHANMUGHOM PILLAI SURENDRAN, OF ..DO...(9TH RESPT). ** R2 TO R6 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS VIDE ORDER DTD. 20/09/2010 IN I.A.2336/2010. R1 BY ADVS.SRI.V.SURESH, SRI.G.SUDHEER. SRI.C.C.XAVIER. R7 BY ADV. SMT.LIGEY ANTONY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.1476/2000 IN S.A.NO.547/2000 DISMISSED 11/02/2011 SD/-P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ---------------------------- S.A.No. 547 of 2000 --------------------------------- Dated this the 11th day of February, 2011 JUDGMENT The defendants 2 and 10 in O.S.No.541/1980 before the Munsiff's Court, Neyyattinkara are the appellants. The first defendant died and his legal heirs have been brought on the party array as appellants 3 to 6. Respondents 2 to 6 have been removed from the party array on the petition filed by appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff's case is as follows: The plaint A schedule property formerly belonged to one Joseph Morayis Gorgen Morayis. He executed a mortgage in respect of plaint B schedule property which is part of A schedule property in favour of the defendant, by document No.2121 dated 17.05.1961. The father of the plaintiff mortgaged the property under Ext.A1 for a sum of Rs.3,000/-. He was directed to redeem an outstanding mortgage right in respect of one acre 37½ cents in the B schedule property. The defendant did not redeem that mortgage and the plaintiff tried to redeem it. The balance extent in C schedule on the death of his father the rights devolved on the plaintiff. He sought redemption to C schedule. S.A.No. 547 of 2000 2 3. Originally, there was only one defendant in the suit. He had assigned the right to the second defendant and second defendant was brought on the party array. Other defendants were also impleaded in the suit. They contended that a suit for redemption is not maintainable. Therefore they prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exhibits A1 to A4 from the side of the plaintiff. The defendants have no oral or documentary evidence. Ext.C1 is the Commissioner's report. The trial court found that the plaintiff should have filed a comprehensive suit for declaring title to redeem the plaint schedule property from since it is not identified the first defendant and for recovery of possession from the second defendant as well as from the other persons, who are now in possession of the property. 5. The plaintiff carried the matter in appeal as A.S.No.94/1993 before the before the District Court, Thiruvananthapuram. The lower appellate court considered the matter in considerable detail and came to the conclusion that the tenancy and kudikidappu right claimed are not established and allowed the appeal, decreeing the suit. Hence the second appeal. S.A.No. 547 of 2000 3 6. Notice has been issued on the following substantial questions of law: 1. Is it not illegal to pass a decree with a dead defendant in the party array ? 2. Is not the interpretation of the document by the lower appellate court against the terms and intention of the parties. Does not, Ext.A1 create tenancy ? 3. Is it not illegal to deny a statutory right on the assumption of a fact which is incorrect. 7. The learned counsel for the appellant pointed out that the lower appellate court was not justified in reversing the judgment and decree of the trial court and dismissed the suit. The mortgage right covered by Ext.A1 is in respect of three acres of land and the partial redemption is not possible. 8. The above contentions are without any merits what so ever. The trial court has rejected the claim of redemption. The lower appellate court had considered the claim of tenancy right as well as kudikidappu and had come to the conclusion that there is no merit in the contention at all. The learned counsel for the appellant was unable to show that the said finding is either fallacious or contrary to law. 9. Regarding the question of redemption, it is an admitted fact that 1.37 ½ acres of land was redeemed by the plaintiff himself. The S.A.No. 547 of 2000 4 lower appellate has found that the contention regarding partial redemption of the entire 1.37½ acres is without any basis. The lower appellate court found that even though the identity of the property was disputed that contention was not perused. The lower appellate court also found that as per Ext.A3, plaintiff had redeemed the earlier mortgage. What now remains is only the redemption of plaint C schedule. The lower appellate court has considered the question of identity, claim of tenancy and plea of Kudikidappu and found against the defendants. The value of improvements was assessed by the lower appellate court based on the commissioner's report. There is no reason to interfere with the said finding of the lower appellate court. The result is that the judgment and decree of the lower appellate court do not suffer from any infirmity and no grounds are warranted to interfere with the judgment and decree of the lower appellate court. The Second appeal is without any merits and it is liable to be dismissed. I do so. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln