IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 AS.No. 388 of 1997() -------------------- OS.620/1994 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/1st DEFENDANT:- -------------------------------- 1. KRISHNAN, S/O. VALIYAVEETTIL NARAYANAN, AGED ABOUT 59, PALIAMTHURUTHU, PIZHALA, KADAMAKUDY. (DIED) ADDL. APPELLANTS 2 TO 5 IMPLEADED:- 2. JAYANTHI, D/O. LATE KRISHNAN, AGED 42, PALIAMTHURUTHU, PIZHALA P.O., KADAMAKUDY. 3. VASANTHI, D/O. LATE KRISHNAN, AGED 40, - DO- - DO - 4. PRAKASAN, S/O. LATE KRISHNAN, AGED 39, - DO- - DO - 5. SUNI MON, S/O. LATE KRISHNAN, AGED 48, - DO- - DO - ADDL. APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED APPELLANT NO.I VIDE ORDER IN I.A. NO. 3835 OF 2005 DT. 08.12.2005. BY ADV. MR. S.SREEKUMAR RESPONDENTS/PLAINTIFFS 2 TO 5 AND DEFENDANTS 2 TO 7:- ---------------------------------------------------------------------- 1. LAKSHMANAN, S/O. VALIYAVEETTIL NARAYANAN, AGED 47, AGRICULTURIST, PALIAMTHURUTHU, PIZHALA KADAMAKUDY. (DIED) ( ADDL. RESPONDENTS 11 TO 13 IMPLEADED.) 2. SARASWATHI, W/O. LATE BAWAN, AGED 53, POONICHIRATHUNDI, CHUTTUPADUKARA, EDAPPALLY P.O. A.S. No. 388/1997 : 2 : 3. RAGHAVAN, SO. LATE BAWAN, AGED 27, POONICHIRATHUNDI, CHUTTUPADUKARA, EDAPPALLY P.O. 4. VILASINI, D/O. LATE BAWAN, AGED 24, POONICHIRATHUNDI, CHUTTUPADUKARA, EDAPPALLY P.O. 5. THULASI, D/O. VALIAVEETTIL NARAYANAN, AGED ABOUT 67, PALIAMTHURUTHU PIZHALA, KADAMAKKUDY. 6. RUGMINI, D/O. NARAYANAN, AGED ABOUT 49, THEKKEY THERUVIL HOUSE, OPP. PETROL PUMP, VYPIN P.O. (DIED) (ADDL. RESPONDENTS 14 TO 18 IMPLEADED) 7. LAKSHMI CHANDRAN, W/O. LATE CHANDRAN, AGED 43, PALIAMTHURUTHU, PIZHALA, KADAMAKKUDY. 8. SATHEESAN, S/O. LATE CHANDRAN, AGED 24, PALIAMTHURUTHU, PIZHALA, KADAMAKKUDY. 9. GEETHA, D/O. LATE CHANDRAN, AGED 22, PALIAMTHURUTHU, PIZHALA, KADAMAKKUDY. 10. RAJESH, S/O. LATE CHANDRAN, AGED 18, PALIAMTHURUTHU, PIZHALA, KADAMAKUDY. ADDL. RESPONDENTS 11 TO 18 IMPLEADED 11. RATHNAM, W/O. P.N. LAKSHMANAN, PALIYAMTHURUTHIL HOUSE, PIZHALA P.O. 12. V.L. SURESH, S/O. P.N. LAKSHMANAN, PALIYAMTHURUTHIL HOUSE, PIZHALA P.O. 13. V.L. SOBHA, W/O. VENUGOPAL, KUYAMPARAMBIL HOUSE, PALIYAMTHURUTHIL HOUSE, PIZHALA P.O. PIN: 682 027. (LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 11 TO 13 AS PER ORDER DATED 01.06.2009 ON I.A. NO. 3733 OF 2007) A.S. No. 388/1997 : 3 : ADDL. RESPONDENTS 14 TO 18 IMPLEADED 14. C.P. BALAKRISHNAN, S/O. LATE RUGMINI, KOZHIPARAMBIL HOUSE, VYPEEN. P.O. 682 510. 15. LALITHA RADHAKRISHNAN, W/O. LATE RADHAKRISHNAN, METHASSERY HOUSE, CHEMPU P.O. POOTHOTTA, ERNAKULAM DISTRICT. 16. S.D. SASI, THEKKETHERUVIL HOUSE, VYPEEN P.O. PIN:- 682 510. 17. SEENA SUNIL, PALIYAMTHURUTHU HOUSE, PIZHALA P.O. PIN – 682 027. 18. REMANI SUDHAKARAN, W/O. SUDHAKARAN, THEKKETHERUVIL HOUSE, VYPEEN P.O., PIN:- 682 510. (LEGAL REPRESENTATIVES OF THE DECEASED 6TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 14 TO 18 AS PER ORDER DATED 01.06.2009 ON I.A. NO. 3792 OF 2007) ADV. MR. A.RAMAPRABHU MS. R.RANJINI MR. R.LAKSHMI NARAYANAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. No. 388/1997 : 4 : ORDER ON C.M.P.NO. 3256/1997 IN A.S. NO. 388/1997 DISMISSED 25.08.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. ========================== A.S. No. 388 of 1997 ========================== Dated this the 25th day of August, 2009. JUDGMENT The 1st defendant in O.S No. 620 of 1994 on the file of the Sub Court, Ernakulam is the appellant in this appeal. The said suit was instituted by 5 plaintiffs seeking partition and separate possession of their 1/6 share over three items of immovable properties scheduled to the plaint as plaint schedules A to C. The plaint A schedule has an extent of 1.76 acres. The plaint B schedule has an extent of 26 cents and the plaint C schedule is admeasuring 8 cents. 2. The case of the plaintiffs can be summarised as follows:- Plaintiffs 1 and 2 are the children of late Valiyaveettil Narayanan. The 3rd plaintiff is the widow of Bawan, the eldest son of the said Narayanan and plaintiffs 4 and 5 are the son and daughter of the said Bawan. The 1st defendant is another son of late Narayanan and 2nd and 3rd defendants are daughters of late Narayanan. Plaint A to C schedule A.S. No. 388 of 1997 : 2 : properties belonged in jenm to Cochin Thirumala Devaswom and were outstanding on Varam arrangement with late Narayanan. Plaint B and C schedule properties were purchased by utilising the surplus income obtained from the plaint A schedule property. The 1st defendant and plaintiffs 1 and 2 under a family arrangements, are in separate possession and enjoyment of portions of plaint A schedule property. Plaint B schedule is also in the possession and enjoyment of plaintiffs 1 and 2. Plaint C schedule property is in the enjoyment of the 1st defendant. The plaint schedule properties are liable to be partitioned among the plaintiffs and the defendants who are the legal heirs of Narayanan. Each of the four sons and two daughters of late Narayanan are entitled to 1/6 share out of the plaint schedule properties. The 1st defendant had filed O.S. No. 308 of 1983 before the court below against plaintiffs 1 and 2 and in that suit it was found that the present plaint schedule properties belonged to Narayanan. The plaint schedule properties are paddy fields and are A.S. No. 388 of 1997 : 3 : portions of an extensive padasekharam. A trust had been formed for the entire padasekharam including the plaint schedule properties for the purpose of prawn fishing and the right to prawn fishing is auctioned during the season every year. The 1st defendant is collecting the share from the chemmeenkettu at the rate of Rs.12,000/- per year for the past several years. He has not been paying the share of income from prawn fishing to the plaintiffs for the past several years. The plaintiffs have limited their claim for mesne profits at the rate of Rs.2000/- in each share. Their demand for partition of the plaint schedule properties immediately after the disposal of O.S. No. 308 of 1983 was not acceded to by the 1st defendant. Hence the suit. 3. The 3rd defendant remained ex parte. 4. Defendants 1 and 2 filed a joint written statement contending inter alia as follows:- The suit is not maintainable either in law or on facts. The plaint schedule properties belong to the 1st defendant being his self acquired property. The plaint A schedule A.S. No. 388 of 1997 : 4 : property having an extent of 1.76 acres, was purchased as per document No. 106 dated 19.04.1982 and Exchange deed No. 1344/65 dated 15.12.1965 of S.R.O., Narackal. The plaint B schedule property was purchased by the 1st defendant as pr document No. 319 of 1969 dated 20.03.1969 of S.R.O., Narackal. The plaint C schedule properties was purchased by the 1st defendant as per document No. 801 of 1984 dated 02.05.1984 of S.R.O., Narackal. Plaintiffs 1 and 2 had trespassed into the plaint schedule item No. 1 resulting in the 1st defendant filing O.S. No. 739 of 1986 for recovery of possession on the strength of title and for injunction. In the said suit, the 1st defendant had based his claim on document No. 706 of 1982. The suit was decreed as prayed for and confirmed in appeal by the Sub Court, Ernakulam on 18.02.1991 in A.S. No. 99 of 1989. The plaintiffs filed a suit as A.S. No. 391 of 1985 seeking partition and separate possession of the plaint schedule property alleging that the same belongs to late Narayanan. That suit was tried along with two other suits (O.S. Nos. 308 A.S. No. 388 of 1997 : 5 : of 1993 and 390 of 1985) filed by the 1st defendant. The partition suit O.S. No. 391 of 1985 was dismissed. The plaintiffs had also filed another suit as O.S. No. 121 of 1991 seeking partition of the plaint schedule properties and the same was also dismissed. In O.S No. 739 of 1986, the 1st defendant obtained delivery of the plaint schedule property. The present suit is barred by res judicata in view of the decisions in O.S. Nos. 739 of 1986 and 121 of 1991. The court below framed the following issues for trial:- 1) Whether the suit is barred by limitation. 2) Whether the plaint A to C schedule properties are in exclusive possession and enjoyment of the 1 st defendant? 3) Whether the plaint schedule properties are partible? 4) Whether the suit is barred by res-judicata in view of the dismissal of O.S. No. 121 of 1991 of this Court? 5) Whether the plaintiffs are entitled for the partition of plaint schedule properties by metes and bounds? 6) Whether the plaintiffs are entitled for mesne profits? 6a)Whether valuation shown & C.F paid are correct? 7) Reliefs and cost. A.S. No. 388 of 1997 : 6 : 5. On the side of the plaintiffs, 2 witnesses were examined as PWs 1 and 2 of whom PW1 is the 2nd plaintiff Lakshmanan and PW2 is a local resident who was conversant with the properties and late Narayanan cultivating the properties. Exts.A1 and A2 were got marked. On the side of the contesting defendants, no oral or documentary evidence was adduced. 6. The learned Sub Judge, after trial, as per preliminary judgment and decree dated 21.11.1996 entered the findings on the issues in favour of the plaintiffs and passed a preliminary decree for partition in respect of the plaint A schedule property. The suit was dismissed as against the plaint B and C schedule properties. The court directed the plaint A schedule property to be divided into six equal shares and allotment of 1/6 share to the 2nd plaintiff, 1/6 share to plaintiffs 3 to 5. Additional defendants 4 to 7 who are the legal heirs of the deceased 1st plaintiff Chandran, were jointly held entitled to 1/6 share over the plaint schedule property. Plaintiffs 2 to 5 and additional A.S. No. 388 of 1997 : 7 : defendants 4 to 7 were entitled to mesne profits in respect of the plaint A schedule property from the 1st defendant, the quantum of which was relegated to the final decree proceedings. It is the said preliminary decree which is assailed in this appeal by the 1st defendant. 7. I heard Adv. Shri. S. Sreekumar, the learned counsel appearing for the appellant and Adv. Smt. Renjini, the learned counsel appearing for the contesting respondents, namely, respondents 2 to 4 and 7 to 13. 8. The appellant/1st defendant died pending appeal and his legal representatives were impleaded as additional appellants 2 to 5. 9. The learned counsel appearing for the additional appellants made the following submissions before me in support of the appeal:- This is a case in which the suit was resisted on the ground of res judicata in view of the decree passed in O.S. Nos. 739 of 1986 and 121 of 1991. The 1st defendant who was the contesting defendant, was denied a fair opportunity A.S. No. 388 of 1997 : 8 : to substantiate his contentions. The case stood posted for plaintiffs' evidence on 25.11.1995 on which date the 2nd plaintiff was examined as PW1 and Exts. A1 and A2 were marked. Thereafter, the case was adjourned twice for the plaintiffs' evidence to 26.11.1996 and 28.11. 1996 on which date PW2 was examined. After the close of the plaintiffs' evidence, one day's time was sought for defendants' evidence and the request was rejected and the court below pronounced the judgment on the next day, namely, 21.11.1996. If the 1st defendant was permitted to adduce evidence by producing the judgment and decree in O.S. No. 739 of 1986, the suit would have been dismissed. Likewise, the dismissal of O.S No. 121 of 1991 filed by the plaintiffs seeking partition of the very same property would preclude them from filing the present suit. 10. I am afraid that I cannot agree with the submissions made on behalf of the appellants. As mentioned earlier, the present suit was filed for partition of three items of properties described in plaint A, B and C A.S. No. 388 of 1997 : 9 : schedule properties. The court below has disallowed the claim for partition in respect of plaint B and C schedule properties and the plaintiffs have not filed any appeal or cross objection against the dismissal of the suit with regard to those two items of properties. The only surviving dispute is regarding the plaint A schedule property admeasuring 1.76 acres. The plaint A schedule property belonged to the common ancestor Narayanan who died after the commencement of the Hindu Succession Act. The parties are Hindus belonging to the Kudumbi community. Narayanan had four sons and two daughters. 1st defendant Krishnan, 1st plaintiff Chandran, 2nd plaintiff Lakshmanan, and Bawan, the late husband of 3rd plaintiff are the 4 sons and 2nd defendant Thulasi and 3rd defendant Rugmini are the two daughters. 1st plaintiff died pending suit and his widow and children were impleaded as defendants 4 to 7. Plaintiffs 4 and 5 are the children of the 3rd plaintiff and her husband late Bawan. As on today, all the children of Narayanan are no more. Thulasi, the 2nd defendant died A.S. No. 388 of 1997 : 10 : pending this appeal and since she died unmarried, she has not left behind any legal representatives other than the rest of the parties. Krishnan, the 1st defendant who filed this appeal, also died pending this appeal and his legal representatives impleaded as additional appellants 2 to 5. The 2nd plaintiff Lakshmanan also died pending this appeal and his legal representatives have been impleaded as respondents 11 to 13. 3rd plaintiff Rugmini also died pending this appeal and her legal representatives were impleaded as respondents 14 to 18. 11. O.S. No. 308 of 1983 was an earlier suit filed by the 1st defendant against the present plaintiffs 1 and 2 for a perpetual injunction and for damages for demolition of a portion of the 4 items of properties scheduled to the plaint therein. Item Nos. 1 to 3 therein together constitute the present plaint A schedule property admeasuring 1.76 acres. The 4th item in that suit was the present plaint B schedule property admeasuring 26 cents. O.S. No. 390 of 1985 was yet another suit filed by the 1st defendant against the A.S. No. 388 of 1997 : 11 : present plaintiffs 3 and 4 and the wife of the 4th plaintiff seeking a perpetual injunction against trespass in respect of the present plaint B schedule property which was item No. 4. O.S. No. 391 of 1985 was filed by the present plaintiffs 3 to 5 against the present 1st defendant and plaintiffs 1 and 2 seeking partition of three items of properties which together constitute the present plaint A schedule property. All the aforesaid three suits were jointly tried and disposed of by Ext.A1 judgment dated 10.07.1986 as per which O.S No. 308 of 1983 was dismissed regarding plaint schedule item Nos. 1 to 3 therein (present plaint A schedule property) holding that both the plaintiff and the defendant therein are co-owners. O.S No. 308 of 1983 was decreed only respect of the plaint schedule item No. 4 therein which is the present plaint B schedule property. O.S No. 390 of 1985 was also decreed only in respect of the present plaint B schedule property. O.S No. 391 of 1985 was dismissed on account of the mis- joinder of parties namely for not impleading the present defendants 2 and 3. A.S. No. 388 of 1997 : 12 : 12. As for the 4th suit, namely, O.S. No. 121 of 1991 filed by the plaintiffs earlier seeking partition of the present plaint A to C schedule properties, it is conceded that there was no adjudication on the merits. The plaint was rejected on 04.02.1993 for non-payment of the balance court fee and a restoration petition as well as a review petition filed by the present plaintiffs were dismissed as not maintainable. Since a fresh suit is not barred, the present suit was instituted seeking the very same reliefs. 13. As regards the dismissal of O.S. No. 739 of 1986, no documentary or oral evidence was adduced by the appellants. In fact, the court below did not even frame an issue as to whether the decree in O.S. No. 739 of 1986 would operate as res judicata. According to the plaintiffs, O.S No. 739 of 1986 was not pertaining to the present plaint A schedule property. 14. It is true that after the close of the plaintiffs' evidence on 28.11.1986, the judgment was pronounced on the next day after rejecting the defendants' request for A.S. No. 388 of 1997 : 13 : adjournment of the case for defence evidence. But then, the judgment or decree in O.S. No. 739 of 1986 were not produced before the court below well in advance. The present appeal was filed on 27.06.1987. Even along with the appeal, the judgment and decree in O.S No. 739 of 1986 as per which the 1st defendant claims to have obtained a decree for recovery of possession of the present plaint A schedule property, have not been produced. If the contesting defendants had a valid ground of defence, they would have diligently produced the documentary evidence in respect of their claim over the plaint A schedule property. Under these circumstances, I am not inclined to grant an opportunity to the appellants to adduce further evidence in respect of their defence by setting aside the judgment and decree and remanding the case to the court below for fresh disposal. 15. The result of the foregoing discussion is that the judgment and decree passed by the court below do not warrant any interference at the hands of this Court. Now A.S. No. 388 of 1997 : 14 : with the death of the 2nd defendant Thulasi issueless, there is augmentation of the shares to 1/5th share instead of 1/6th share to each of the children of deceased Narayanan. The court below shall while passing a final decree, make appropriate modifications in the decree. Since the court below has not fixed the date from which the mesne profits are payable by the 1st defendant, it is ordered that the 1st defendant shall be liable to pay the mense profits only from the date of this appeal namely, 27.06.1997 16. In the result, this appeal is dismissed. However, having regard to the facts and circumstances of the case, the parties are directed to bear their respective costs. Dated this the 25th day of August, 2009. V. RAMKUMAR, JUDGE. rv A.S. No. 388 of 1997 : 15 : V. RAMKUMAR, J. ------------------------------------ A.S. No. 388 of 1997 ---------------------------------------- 25th day of August, 2009. JUDGMENT A.S. No. 388 of 1997 : 16 : V. RAMKUMAR, J ------------------------------------ A.S. No. 388 of 1997 : 17 : A.S. No. 388 of 1997 ---------------------------------------- 1st day of June, 2009. ORDER A.S. No. 388 of 1997 : 18 :