IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 SA.NO. 343 OF 1998(G) --------------------- {IN A.S.NO.25/1994 OF THE SUB COURT, KOTTARAKKARA IN O.S.NO.421/1990 OF THE MUNSIFF COURT, PUNALUR} .................... APPELLANT(S)/APPELLANT/PLAINTIFF: ------------------------------------------- NARAYANAN SATHEENDRAN, MANGALATHU VEEDU, KAMUKUMCHERRY, PIDAVOOR. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. LEKSHMI AMMA KARTHIYAYANI AMMA, (DIED) THADAVILA PUTHEN VEEDU, KAMUKUNCHERRY, PIDAVOOR. 2. KARTHIYAYANI AMMA CHANDRAVALLY AMMA, RESIDING AT THADAVILA PUTHEN VEEDU, KAMUKUMCHERRY, PIDAVOOR. 3. LEKSHMIKUTTY AMMA, D/O.KARTHIYANI AMMA, RESIDING AT THADAVILA PUTHEN VEEDU, KAMUKUMCHERRY, PIDAVOOR. 4. SARASWATHY AMMA, D/O.KARTHIYANI AMMA, RESIDING AT THADAVILA PUTHEN VEEDU, KAMUKUMCHERRY, PIDAVOOR. 5. RADHAMANI AMMA, D/O.KARTHIYANI AMMA, RESIDING AT THADAVILA PUTHEN VEEDU, KAMUKUMCHERRY, PIDAVOOR. SA.NO. 343 OF 1998(G) :: 2 :: 6. BHANUMATHY AMMA, D/O.KARTHIYANI AMMA, RESIDING AT THADAVILA PUTHEN VEEDU, KAMUKUMCHERRY, PIDAVOOR. 7. ANANDAVALLY AMMA, D/O.KARTHIYANI AMMA, RESIDING AT THADAVILA PUTHEN VEEDU, KAMUKUMCHERRY, PIDAVOOR. 8. REMADEVI AMMA, D/O.KARTHIYANI AMMA, RESIDING AT THADAVILA PUTHEN VEEDU, KAMUKUMCHERRY, PIDAVOOR. 9. P.SIVADASAN NAIR, S/O.KARTHIYANI AMMA, RESIDING AT THADAVILA PUTHEN VEEDU, KAMUKUMCHERRY, PIDAVOOR. 10. LEKSHMIKUTTY AMMA, ASOKAMANDIRAM, KAMUKUMCHERRY, PIDAVOOR. 11. ASHOKAN, S/O. LEKSHMIKUTTY AMMA, ASOKAMANDIRAM, KAMUKUMCHERRY, PIDAVOOR. 12. SHYLAJA, D/O.LEKSHMIKUTTY AMMA, ASOKAMANDIRAM, KAMUKUMCHERRY, PIDAVOOR. 13. USHA, D/O.LEKSHMIKUTTY AMMA, ASOKAMANDIRAM, KAMUKUMCHERRY, PIDAVOOR. 14. MINI, D/O.LEKSHMIKUTTY AMMA, ASOKAMANDIRAM, KAMUKUMCHERRY, PIDAVOOR. THE DEATH OF THE 1ST RESPONDENT IS RECORDED VIDE ORDER DATED 15.3.2011 IN MEMO BEARING CF 6941/10 DT. 8.11.10. R1 TO R8 BY ADV. SRI.K.K.JOHN R9, R10 & R12 BY ADV. SRI.GEORGE KURUVILLA R11,R13 & R14 BY ADV. SMT.A.CHITHRA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON 15/03/2011 DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------------------- S.A.No.343 of 1998 ----------------------------------------------- Dated this the 15th day of March, 2011 JUDGMENT Plaintiff is the appellant. Suit was for declaration of title, fixation of boundary and injunction. Both the courts below concurrently found against the plaintiff and he was non-suited. Feeling aggrieved, he has preferred this appeal. 2. The following substantial questions of law have been formulated while admitting the appeal, on which notice was ordered to the respondents for hearing. a) Were the courts right in holding that the suit is barred by the Section 47 of CPC and by the principles of lis-pendens by virtue of the decree in O.S.No.109/1963. b) Were not the courts wrong in holdings that the suit is hit by Section 47 CPC when the 10th defendant and the property of the 10th defendant included in the plaint 'S' schedule property was not at all subject matter of the properties in S.A.No.343 of 1998 :: 2 :: O.S.No.109/1963 and the 10th defendant was not at all a party to the said suit. c) Were not the courts below wrong in holding that the suit is hit by Section 47 when the sale deeds obtained from the 9th defendant did not affect the whole of the plaint 'A' schedule property. 3. The learned senior counsel for the appellant, inviting my attention to paragraph 10 of the judgment rendered by the lower appellate court, which has been quoted in the memorandum of appeal as well, contended that despite noticing that the trial court has not done justice to the parties in disposing the case even without exhibiting the materials tendered by both sides, and, therefore, the case require a remission after setting aside the decision rendered in the suit, the court below proceeded with the hearing and disposed the appeal, for the sole reason that a time limit had been fixed by this court in petition (O.P.No.18634/97) for expeditious disposal of the appeal. S.A.No.343 of 1998 :: 3 :: So, without going into the larger questions involved, with reference to the pleadings and evidence of the case, in view of the facts scenario, as presented above, indicating that both the courts below have not dealt with the case in accordance with judicial propriety, according to the senior counsel, the impugned judgment is liable to be set aside and the case to be remitted to the trial court, for a fresh disposal on merits. The learned senior counsel, being asked to present arguments on the merits of the appeal as well, as interference with the concurrent decision rendered by the courts below in non-suiting the plaintiff is permissible only within the narrow scope covered by Section 100 of the Code of Civil Procedure, it was urged by the counsel that the disposal of the suit by the trial court was made on a preliminary issue whether the suit was maintainable, but, without affording any of the parties an opportunity to lead evidence on that issue. Even without exhibiting the documents tendered on such preliminary issue entering a S.A.No.343 of 1998 :: 4 :: finding that the suit is not maintainable, the plaintiff was non-suited, and the course so followed, according to the counsel, is thoroughly unsustainable. Where the maintainability of the suit has to be adjudged on disputed facts, giving rise to mixed questions of fact and law, and not on pure question of law alone, the trial court should have dealt with that issue of maintainability with other issues emerging from the pleadings of the parties and the suit should have been disposed after affording to the plaintiff an opportunity to establish his case, according to the counsel. At any rate, the disposal of the suit made by the trial court, which had been upheld by the first appellate court as well, overlooking the impropriety and serious infirmity in the disposal of the suit, is liable to be interfered with by allowing this appeal, is the further submission of the counsel. 4. On the other hand, counsel appearing for the respondent, adverting to the facts involved in the case S.A.No.343 of 1998 :: 5 :: submitted that the suit of the appellant/plaintiff was clearly an abuse of the process of the court and the reliefs set up in the suit were barred by the orders passed in the execution proceedings in O.S.No.109/63, wherein the execution court had negatived the case set up by the plaintiff to resist the execution of the decree, which is identical and para materia to the case presented in the suit. Not only that, the claim set up over the suit property by the plaintiff was under a pendente lite transfer made in his favour and also his father, during the continuance of O.S.No.109/63 in which their transferers were parties (the defendants 9 and 10 in the present suit), and the properties assigned were also involved. The title deeds taken by the assignees, the plaintiff and his father, spelt out that the plaintiff would derive title or right over the property only after the death of his father. His father, the 11th defendant in the present suit, on the basis of such assignments, got impleaded in the execution proceedings S.A.No.343 of 1998 :: 6 :: in O.S.No.109/63 and resisted and obstructed the identification of the property, which was sought for by the judgment debtors thereto, the defendants 1 to 8 in the suit, through an advocate commission. Turning down such objections at the stage when execution proceeded further, the plaintiff filed the present suit advancing a case that his father was only a name lender in the sale deeds taken over properties and he alone is the title holder as he had advanced the entire amount for purchase. His father was alive when he instituted such suit. Later the plaintiff also made several attempts to get himself impleaded in the execution proceedings in O.S.No.109/63, on the basis of the aforesaid assignments made in his favour by defendants 9 and 10 to obstruct the decree. When such attempts failed to materialise, he has proceeded with this frivolous and vexatious suit, is the submission of the counsel; and it was in that context, this court in the original petition filed by him imputing police harassment S.A.No.343 of 1998 :: 7 :: in connection with the decree executed in O.S.No.109/63 had directed expeditious disposal of the first appeal. The dismissal of the suit of the plaintiff, on the preliminary issue that it is not maintainable, as rendered by the trial court and which was confirmed by the lower appellate court, in the given facts of the case, does not warrant any interference, is the submission of the counsel, urging that the present appeal does not involve any question of law, leave alone any substantial question of law for consideration by this court. 5. Perusing the records of the case, with reference to the judgments rendered by both the courts below and the submissions made by the counsel on both sides, I find that the concurrent decision rendered by both the courts below to negative the claims of the plaintiff that his suit is not maintainable and it has been instituted with oblique motives to resist the execution of the decree passed in O.S.No.109/63 does not warrant any S.A.No.343 of 1998 :: 8 :: interference. The facts involved would indicate that one Padmanabha Kurup executed a settlement deed in favour of his three sons, namely, Madhava Pillai, who is no more, Sadasivan Nair and Balakrishna Pillai [defendants 9 and 10 in the suit], allotting 25 cents of land each to them, as if the entire property has an extent of 75 cents and odd. The 1st defendant in the suit is the wife and defendants 2 to 8 are the children of deceased Madhavan Pillai. However, later, having some dispute with Madhavan Pillai, his father Padmanabha Kurup, along with one of her sons, the 9th defendant (then a minor) instituted a suit for injunction. A decree was passed in favour of the plaintiffs in that suit. That decree confirmed in appeal, but, with a modification directing the parties to take out a commission in execution to determine and fix the identity of the property. The plaintiffs in that suit did not proceed for taking out a commission and, thereupon, the judgment debtor Madhavan Pillai took steps thereof. Pending such S.A.No.343 of 1998 :: 9 :: execution proceedings defendants 9 and 10 assigned the properties obtained by them under the settlement deed from their father in favour of the present plaintiff and his father, the 11th defendant. The sale deeds so taken, which had been exhibited in evidence by the lower appellate court, as Exts.A1 and A2, would indicate that the plaintiff could claim any right over the properties transferred only after the death of his father, the 11th defendant. After such assignment, the 11th defendant, father of the plaintiff got himself impleaded as 3rd plaintiff in the execution proceedings of O.S.No.109/63 and resisted the steps taken by the judgment debtor to identify the property by taking out a commission. When such attempts failed, it is seen, the present suit was instituted by the plaintiff while his father, the 11th defendant was alive alleging that his father had no right over the properties under the deeds as the entire sale consideration for purchasing the property was met from his funds. The assignments made by defendants S.A.No.343 of 1998 :: 10 :: 9 and 10 in favour of the plaintiffs and also that of his father were after the institution of O.S.No.109/63 and pending the proceedings thereof is not disputed. As a pendente lite transferee, the plaintiff was bound by the decision in the above suit, more particularly with reference to the identity and fixation of the property, which was directed to be determined in the execution proceedings of the decree passed in that suit. It has also come out that after the death of his father, he had moved an application in the execution proceedings of O.S.No.109/63 contending that he was not bound by the decree and the orders passed in the execution proceedings under that decree. That application was dismissed and it has become final. It is seen from the order passed by this court in C.R.P.No.821/96 that the plaintiff had moved an application to be impleaded as a party in the execution proceedings of O.S.No.109/63, but, it was turned down and the aforesaid revision was filed S.A.No.343 of 1998 :: 11 :: challenging that order. A copy of the order in that revision was handed over to me by the learned counsel for the respondents. Graphic details of the dilatory tactics taken by the 11th defendant (father of the plaintiff) and also the present plaintiff to stall the execution of O.S.No.109/63 are spelt out in the order. Disposing that revision, this court has expressed thus: “As an assignee during the pendency of the suit, the revision petitioner is bound by the decree and also the subsequent orders. It is clear that his father, one of the co- owners along with him, was a party to the execution proceedings, who had raised contentions on behalf of the revision petitioner also. The revision petitioner could have come on record if he had a case different from that of his father. It was in the presence of his father that the executing court determined the actual property the second plaintiff is entitled to on the basis of the settlement deed. Such determination was also upheld by this court in C.R.P.No. 1031/93. As the legal representative of his S.A.No.343 of 1998 :: 12 :: father, the orders are binding on the revision petitioners. He cannot be permitted to go behind the orders of the executing court.” 5. After dismissal of the aforesaid revision, the plaintiff, it is seen, over and above prosecuting the present suit,which by then had been dismissed, by way of an appeal, had moved an original petition alleging of police harassment in interfering with his rights over his property. In that petition, O.P.No.18634/97, this court, taking note of the pendency of A.S.No.25/94, the judgment of which has given rise to the present appeal, directed the Subordinate Judge's court, Kottarakkara, to hear the appeal immediately and dispose it within the time limit fixed. Whatever be the opinion expressed by the Subordinate Judge that the non-marking of the documents produced by the trial court, while disposing the suit, was not correct and in such a course, setting aside such order S.A.No.343 of 1998 :: 13 :: and a remand was the proper course, it need only be stated that the first appellate court, nor even this court is expected to remit a case for the reason that the judgment rendered by a court below lacked quality or suffered from some infirmity, which in no way affected the decision formed on the pleadings and materials placed. Allegations raised in the plaint to make out a case that the 11th defendant, the father of the plaintiff, has no right over the suit property, which goes against the terms under Exts.A1 and A26, coupled with the fact that the appellant had been worsted in the execution proceedings in O.S.No.109/63 more than once, all lead to the irresistible conclusion that the prosecution of the suit by the plaintiff, a pendente lite transferee, who is bound by the decree in O.S.No.109/63 and the orders passed in the execution proceedings thereof, is unworthy of any merit. Conclusion formed by the trial court in the proved facts of the case that the suit of the plaintiff is not maintainable which has been S.A.No.343 of 1998 :: 14 :: confirmed by the lower appellate court as well, deserve only to be upheld. There is no question of law, leave alone any substantial question of law in this appeal, and it is dismissed, directing both sides to suffer their respective costs. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//