IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 RSA.No.172 of 2009 (D) ---------------------------- AS.99/2003 of PRL.SUB COURT,TRIVANDRUM OS.2766/1990 of I ADDL.M.C., TRIVANDRUM .................... APPELLANT/APPELLANT/2ND DEFENDANT -------------------------------------------------- A.SWARNAMMA, T.C.16/08, VAYALIL VEEDU, JAGATHY, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA RESPONDENTS: RESPONDENTS/PLAINTIFF & DEFENDANTS 3 & ADDL. DEFENDANTS 4 TO 9 --------------------------------------------------------------------------------- 1. KRISHNAMMA, D/O.AMMALU AMMA, TC 18/368, KUNNIL VEEDU, PUNNAKKAMUGAL, THIRUMALA P.O. KUNNAPPUZHA, THIRUVANANTHAPURAM. 2. RAJASEKHARAN NAIR, VAYALIL VEEDU, (MELE VEEDU), KRISHNA VILASOM ROAD, JAGATHY, THIRUVANANTHAPURAM. 3. V.SURENDRAN @ SOORYA CHANDRAN, THULASI NIVAS, MADAVOORPARA, BALARAMAPURAM P.O., THIRUVANANTHAPURAM. 4. RAJU, PADMAJA NIVAS, T.C. 18/581/1, PUNNAKKAMUGAL, ARAMADA P.O., THIRUVANANTHAPURAM. 5. V.SREEKUMAR, KAMALA BHAVAN, PUNNAKKAMUGAL, ARAMADA P.O., THIRUVANANTHAPURAM. 6. V.MADHUSOODHANAN, KAMALA BHAVAN, PUNNAKKAMUGAL, ARAMADA P.O., THIRUVANANTHAPURAM. RSA.No.172 of 2009 (D) 2 7. V.APPUKUTTAN, SARANYA NIVAS, T.C.18/580(1), KARUMBILKONAM, PUNNAKKAMUGAL, ARAMADA P.O., THIRUVANANTHAPURAM. 8. V.SIVANKUTTY, "SIVASAKTHI", T.C. 18/538, PUNNAKKAMUGAL, ARAMADA P.O., THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.172 of 2009 ------------------------------------------------ Dated this the 11th day of March, 2009 JUDGMENT This RSA arises out of final decree passed by the Munsiff, Thiruvananthapuram in O.S.2766/90 on application filed by the plaintiff as I.A.10389/96. The final decree passed by the final decree court is upheld also by the first appellate court vide judgment in A.S.99/03 dt.17/10/08. The contention that is advanced before me by the learned counsel for the appellant/second defendant is that the appellant has obtained purchase certificate in relation to the scheduled property which takes in the “kudikidappu” which originally belonged to the mother of the plaintiff and defendants 1 and 2 namely Ammalu Amma; that after her death as the plaintiff and the first defendant shifted R. S. A. No.172 of 2009 -2- their residence she alone was entitled to “kudikidappu” right and she obtained purchase certificate also in relation to the scheduled property and therefore, the property could not have been allowed to be partitioned. Apart from submitting that there is purchase certificate in favour of the appellant/second defendant, she did not produce it at any stage before the trial court. Counsel for the appellant submits that he is now having in his possession the purchase certificate obtained by the appellant/second defendant in her favour and he passed on to me a photostat copy of the purchase certificate stated to have been so obtained in O.A.107/1988 as also an attested copy of the order passed on O.A.107/88. It is seen from the said order that though the O.A. has been filed in 1988 it was allowed vide order dt.30/04/99 and that R. S. A. No.172 of 2009 -3- the purchase certificate was issued on 03/09/99. The Jenmi Rajasekharan Nair alone was the respondent in that O.A. and the purchase certificate shows that the purchase was allowed and the appellant/second defendant was not liable to pay any amount towards purchase price. The assignment of “kudikidappu” right was so obtained by the second defendant behind the back of the other sharers viz. plaintiff and first defendant when admittedly the purchase was being effected by the second defendant of “kudikidappu” which belonged to Ammalu Amma/ the mother of plaintiff and defendants 1 and 2 and they were inheriting the “kudikidappu” right consequent on death of Ammalu Amma intestate. The purchase so effected by the second defendant cannot but enure to the benefit of all the children of late Ammalu R. S. A. No.172 of 2009 -4- Amma including the plaintiff and the first defendant. However, the purchase certificate had not been produced in the trial court and preliminary decree for partition was passed in O.S.2766/90 on 23/09/96 even before order was passed in O.A.107/1988 by the Land Tribunal. The said preliminary decree is not appealed against and the preliminary decree has become final and the subsequent order of the Land Tribunal cannot affect the rights determined under the preliminary decree which has attained finality. In the RSA filed against, the final decree passed in the suit and confirmed by the first appellate court, the contentions advanced on the basis of the purchase effected by the appellant/second defendant of “kudikidappu” is not tenable and could not naturally be considered. There is thus, absolutely no merit in R. S. A. No.172 of 2009 -5- this RSA and no question of law and much less any substantial question of law arises for consideration in this RSA. This RSA, in the circumstances, is dismissed. K.P.BALACHANDRAN, JUDGE kns/-