IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 RSA.No. 617 of 2006(F) ---------------------- AS.510/1994 of SUB COURT,NEYYATTINKARA OS.419/1971 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANT/APPELLANT/PETITIONER: ------------------------------------------------ PALSY PRABHAKUMARI, KEELICOTTU KIZHAKKUMKARA PUTHEN VEEDU, PERUMPAZHUTHOOR DESOM, NEYYATTINKARA PAKUTHY, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENTS: RESPONDENTS/COUNTER PETITIONER: -------------------------------------------- 1. BHANU NADAR RAJAYYAN NADAR, NEYYARATHALA VILAKOM NELETHATTU PUTHEN VEEDU, VADAKARA DESOM, PERUMKADAVILA PAKUTHY. 2. JOIS VIJAYAMMA, NEYYARATHALA VILAKOM NELETHATTU PUTHEN VEEDU, VADAKARA DESOM, PERUMKADAVILA PAKUTHY. 3. PARVATHI THANKAMMA, NEYYARATHALA VILAKOM NELETHATTU PUTHEN VEEDU, VADAKARA DESOM, PERUMKADAVILA PAKUTHY. 4. KOCHAN NADAR NARAYANAN NADAR, MELETHENGUVILAKUZHI NARAYANA VILASOM BUNGLOW, VADAKARA DESOM, PERUMKADAVILA PAKUTHY (DIED), LEGAL HEIRS ARE IMPLEADED ADDL.35TH TO 38TH RESPONDENTS. 5. KOCHAN NADAR CHELLAPPAN NADAR, MELETHENGUVILAKUZHI PUTHEN VEEDU, VADAKARA DESOM (DIED) LEGAL HEIRS ARE IMPLEADED ADDL.21ST TO 27TH RESPONDENTS. R.S.A.NO. 617/2006 -2- 6. KOCHAN GOVINDAN, MELETHENGUVILAKUZHI, ARAPPURA BUNGLOW OF VADAKARA DESOM (DIED) LEGAL HEIRS ARE IMPLEADED ADDL.14TH TO 20TH RESPONDENTS. 7. KOCHAN LAKSHMANAN, THENGUVILA KUZHI, MELE SREEVILASOM BUNGLOW, VADAKARA DESOM. 8. PADMANABHAN CHELLAPPAN, THERIYIL THEKKE PUTHEN VEEDU, VADAKARA DESOM, PERUMKADAVILA PAKUTHY, NEYYATTINKARA. 9. PADMANABHAN RAGHAVAN, THENGUVILAKUZHI MELETHATTU PUTHEN VEEDU, VADAKARA DESOM (DIED) LEGAL HEIRS ARE IMPLEADED ADDITIONAL 28TH TO 34TH RESPONDENTS. 10. PADMANABHAN KESAVAN VARUPARAMBU MELE KADAYARA PUTHEN VEEDU, VADAKARA DESOM. 11. REV. V.WILLIAM, THE BISHOP N.S.K. DAYOSIS,THIRUVANANTHAPURAM, REPRESENTED BY C.S.I. CHURCH, VADAKARA. 12. THANKAMMA ELSAMMA, THENGUVILAKUZHI, ARAPPURA BUNGLOW, VADAKARA DESOM. 13. THANKAMMA DASAMMA, THAVIYARATHALA MELE ARUKALPURA VEEDU, VADAKARA DESOM. 14. GOVINDAN THANKARAJ, RESIDING AT ARAPPURA BUNGLOW, THENGUVILAKUZHI, VADAKARA DESOM, NEYYATTINKARA TALUK. 15. ELSAMMA SUMATHI, RESIDING AT ARAPPURA BUNGLOW, THENGUVILAKAKUZHI, VADAKARA DESOM, NEYYATTINKARA TALUK. 16. GOVINDAN VIJAYARAJ, RESIDING AT ARAPPURA BUNGLOW, THENGUVILAKUZHI, VADAKARA DESOM, NEYYATTINKARA TALUK. 17. ELSAMMA SILVI, RESIDING AT ARAPPURA BUNGLOW, THENGUVILAKUZHI, R.S.A.NO. 617/2006 -3- VADAKARA DESOM, NEYYATTINKARA TALUK. 18. ELSAMMA SAROJAM, RESIDING AT ARAPPURA BUNGLOW, THENGUVILAKUZHI, VADAKARA DESOM, NEYYATTINKARA TALUK. 19. GOVINDAN MANIYAN, RESIDING AT ARAPPURA BUNLOW, THENGUVILAKUKZHI, VADAKARA DESOM, NEYYATTINKARA TALUK. 20. GOVINDAN BABU, RESIDING AT ARAPPURA BUNGLOW, THENGUVILAKUZHI, VADAKARA DESOM, NEYYATTINKARA TALUK (ADDL.RESPONDENTS 14TH TO 20TH ARE IMPLEADED AS L.RS. OF DECEASED 6TH RESPONDENTS). 21. NELSON, S/O.CHELLAPPAN NADAR, AGED 48, THENGUVILAKUZHI MELE ROADARIKATHU KADAYARA VEEDU, VADAKARA DESOM, MARAYAMUTTOM. 22. ROBINSON, S/O. CHELLAPPAN NADAR, AGED 44, THENGUVILAKUZHI MELE PUTHEN VEEDU, VADAKARA DESOM, MARAYAMUTTOM. 23. PUSHPOM, D/O. ROSAMMA, AGED 40, THARISU VEEDU, NADOORKOLLA, AMARAVILA P.O 24. SUGANTHI, D/O. ROSAMMA, AGED 37, MANALIVILA ROADARIKATHU KADAYARA VEEDU, CHILLIYOOR, MARAYAMUTTOM P.O. 25. BABY, D/O. ROSAMMA, AGED 35, THERIKANNIMMA VEEDU, D.B. SADANAM, THIRUPURAM DESOM, THIRUPURAM P.O. 26. DORAPAYI, D/O. ROSAMMA, AGED 32, UDIYAKONAM, JOHNY BHAVAN, AMACHAL DESOM, AMACHAL P.O. 27. LAWRENCE, S/O. CHELLAPPAN NADAR, AGED 27, THENGUVILAKUZHI PUTHEN VEEDU, VADAKARA DESOM, MARAYAMUTTOM. 28. THAVI JHANAMMA,AGED 68, THENGUVILAKUZHI MELETHATTU PUTHEN VEEDU, VADAKARA DESOM, PURUMKADAVILA VILLAGE. 29. SWARNA BAI, D/O. JHANAMMA, AGED 47, THENGUVILAKUZHI MELETHATTU PUTHEN VEEDU, VADAKARA DESOM, PERUMKADAVILA VILLAGE. R.S.A.NO. 617/2006 -4- 30. BABY, D/O. JHANAMMA, AGED 45, VARUPARAMBU VEEDU, VADAKARA DESOM. 31. THULASI, D/O. JHANAMMA, AGED 43, KAITHARAKKAL VEEDU, VADAKARA DESOM. 32. THANKAPPAN, S/O. RAGHAVAN, AGED 41, REENA SADANAM, VADAKARA DESOM. 33. KUTTAPPAN, S/O. RAGHAVAN, AGED 39, ANEESH BHAVAN OF VADAKARA DESOM. 34. LALITHA, D/O. JHANAMMA, AGED 37, THENGUVILAKUZHI VEEDU, VADAKARA DESOM, PERUMKADAVILA (ADDL.RESPONDENTS 28TH TO 34TH ARE IMPLEADED AS L.RS. OF DECEASED 9TH RESPONDENT). 35. CHELLAMMA, W/O.NARAYANAN NADAR, MELETHENGUVILAKUZHI, NARAYAVILASOM BUNGLOW, VADAKARA DESOM, MARAYAMUTTOM, PERUMKADAVILA. 36. SATHYANESAN, S/O.NARAYANAN NADAR, MELETHENGUVILAKUZHI, NARAYANAVILASAM BUNGLOW, VADAKARA DESOM, MARAYAMUTTOM, PERUMKADAVILA. 37. RAJAYYAN, S/O. NARAYANAN, BEENA SADANAM, DEVAIYARATHALA, VADAKARA, MARAYAMUTTOM. 38. SUSEELA, SHIJU BHAVAN, VALANVILA, VELLARADA. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ================================ R.S.A. NO. 617 OF 2006 ================================== Dated this the 19th day of February 2008 JUDGMENT Eighth defendant in O.S.No.419/1971, the petitioner in I.A.No.4142/1984 in O.S.No.419/71 on the file of the Ist Additional Munsiff Court, Neyyattinkara is the appellant. A preliminary decree was passed in O.S.No.419/1971 on 8-11-1974. Under the preliminary decree, 8th defendant was allotted to 51 ½ cents, though he claimed ¼ share which originally belonged to Mallan Raman and sold to Omana and purchased by the appellant. The preliminary decree was challenged in A.S.No.46/75 by the plaintiffs. As per judgment dated 30-9-1977, first appeal was allowed modifying the preliminary decree with regard to the right of the plaintiffs. It was found that the plaintiffs are entitled to redemption, partition and recovery of possession of ½ share less 3 and 3.4. cents assigned to 9th defendant from A schedule property. With regard to the shares of the defendants it was found that the R.S.A.NO. 617 OF 2006 -2- shares of the defendants will be fixed by the lower court. It is pursuant to the observations, the appellant as well as some of the other defendants filed separate petitions for passing a supplementary preliminary decree. The learned Munsiff as per order dated 19-8-1991 dismissed that applications holding that they will not be prejudiced by passing the final decree by finalising the share of the plaintiffs. Final decree was also passed. It was challenged before Sub Court, Neyyattinkara in A.S.No.510/1994 and A.S.No.846/1994. Appellant filed A.S.No.846/1994 against the final decree and A.S.No.510/1994 against the dismissal of I.A.No.4142/1984. Appeals were dismissed. 2. Appeal is filed only against final judgment in A.S.No.510/1994. The final decree as confirmed in A.S.No.846/1994 has become final. 3. The argument of the learned counsel was that in view of the observations by the first appellate court in A.S.No.46/75 granting liberty to the defendants to apply for fixation of the shares, courts below should have decided the question without directing parties to file a fresh suit. R.S.A.NO. 617 OF 2006 -3- 4. On hearing the learned counsel, I do not find any substantial questions of law involved in the appeal. 5. In the preliminary decree which was modified by the first appellate court in A.S.No.46/75, claim of the plaintiff was upheld and they were granted ½ share rejecting the claim of the defendants that so much share was not available for the plaintiffs. The learned Munsiff and the learned District Judge consequent to the filing of petitions by the appellant, as well as other defendants found that the claims regarding the defendants are to be decided in a separate suit. It was submitted by the learned counsel that some of the defendants have already filed a suit. In such circumstances, the appeal is dismissed granting liberty to the appellant to agitate his claim in the pending suit or by a separate suit. M. SASIDHARAN NAMBIAR, JUDGE ks.