IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 RFA.No. 478 of 2009() --------------------- OS.555/1993 of SUB COURT,THRISSUR .................... APPELLANT/5TH DEFENDANT ------------------------------------------- A.VIDYASAGAR, AGED 72 YEARS, S/O. KARTHIYAYANI AMMA, GREEN COTTAGE, TRIKKUMARAKKUDAM P.O., TRICHUR. BY ADV. SRI.K.P.SREEKUMAR RESPONDENT(S): PLAINTIFF & DEFENDANTS 2-4,6 & 7 ----------------------------------------------- 1. A.SURESAN, AGED ABOUT 45 YEARS, S/O. C.GOPALAKRISHNA MENON, ALLATH HOUSE, ANTHIKKAD, (NOW RESIDING AT TC 47/044,ASOKA NAGAR, KANHANI ROAD, AYYANTHOLE, TRICHUR, PIN-680 003. 2. C.KAMALAM, W/O. LATE SHRI. A.GOPINATHA MENON, AGED ABOUT 64 YEARS, CHANGARAMKULATH HOUSE, VALAPPAD P.O., TRIPRAYAR-680 566, TRICHUR DIST. 3. C.V.VASANTHAKUMAR, AGED ABOUT 43 YEARS, S/O. C.KAMALAM, CHANGARAMKULATH HOUSE, VALAPPAD P.O., TRIPRAYAR-680 566, TRICHUR DIST. 4. C.SREEKUMAR, AGED ABOUT 40 YEARS, CHANGARAMKULATH HOUSE, VALAPPAD P.O., TRIPRAYAR-680 566, TRICHUR DIST. 5. C.JYOTHILAKSHMY, AGED ABOUT 37 YEARS, CHANGARAMKULATH HOUSE, VALAPPAD P.O., TRIPRAYAR-680 566, TRICHUR DIST. 6. A.UNNIKRISHNAN, AGED ABOUT 66 YEARS, S/O. ALLATH KARTHIYAYANI AMMA, RESIDING AT 102, PAVITHRAM 40, PALI HILL, NARGIRA DUTT ROAD, BANDRA(WEST), BOMBAY. 7. A.RAVINDRANATH, AGED ABOUT 64 YEARS, S/O. ALLAH KARTHIYAYANI AMMA, RESIDING AT GOPIKRISHNAN, POONKUNNAM, TRICHUR-680 002. ADV. SMT.SEEMA P.P. FOR R2 TO 7 SRI.R.VENUGOPAL FOR R1 SRI.R.SREEHARI FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.F.A. No. 478 of 2009 ---------------------------------------- Dated this the 7th day of October, 2009 JUDGMENT The 5th defendant in O.S. No. 555/1993 on the file of the Sub Court, Thrissur is the appellant and the petitioner in C.M. Application No. 1201/2009. C.M. Application No.1201/2009 is a petition for condoning the delay of 4058 days in filing R.F.A. No. 478 of 2009. The suit was filed for a decree for partition and separate possession of plaintiff's 1/5th share in the property. The 1st respondent in this appeal is the plaintiff in the said Suit. The trial court passed a preliminary decree dated 20.1.1998 allowing the plaintiff to have 1/5th share in the plaint schedule property and the building situated therein. The plaintiff was also allowed to share the income. The parties hereinafter referred to as plaintiff and defendants as arrayed in O.S. No. 555/1993 on the file of the trial court. 2. It is an admitted fact that the plaintiff purchased the plaint schedule property in a public auction sale conducted by the Revenue Divisional Officer, Thrissur on 4.4.1981. The Sub Collector, Thrissur has issued a sale certificate in favour of the plaintiff in respect of plaint schedule property on 17.7.1982. Ever since the purchase of the property, plaint schedule property is in the joint possession ownership and enjoyment of plaintiff and defendants. 3. In the said suit defendants 1 ,2, 5 and 7 have filed a joint R.F.A. No. 478 of 2009 -2- written statement They did not oppose the prayer for partition The only prayer of these defendants is to divide the plaint schedule property in such a way that the building is allotted to the share of 7th defendant without causing any damage to the structure. So practically there was no adjudication of any rights of any parties to the suit. Since the suit was proceeded on the basis of the admission of these defendants , the trial court passed the preliminary decree declaring that the plaintiff have right over 1/5th share in the plaint schedule property and the building situated therein. 4. Subsequently, the plaintiff filed application for passing the final decree in the said suit. . While the final decree proceedings is pending 5th defendant/appellant filed a separate suit as O.S. 586/2003 for partition and separate possession of his 2/5 share over the plaint schedule properties and for declaration that the plaintiff/1st respondent is not entitled to any right over the suit properties and for perpetual injunction restraining the plaintiff/1st respondent from taking any steps in pursuance of the preliminary decree passed in O.S. 555/1993 on the file of the Sub Court Thrissur The suit property in the subsequent suit is the very same suit property in O.S. No. 555/1993. The 5th defendant/appellant filed writ petition No. 14786 of 2009 before this Court challenging the order dated 17.3.2009 passed by the Sub Court, Thrissur as per which the trial court upheld the objection of the plaintiff/1st respondent. The order dated 17.3.2009 of the court below was produced in the said writ petition as R.F.A. No. 478 of 2009 -3- Ext.P12. When the writ petition was taken up by this Court for consideration this Court observed that the if the 5th defendant/appellant had obtained 1/5 share of one of the co-owners and he himself had 1/5 share he ought to have canvassed for his 2/5 share in O.S No. 555 of 1993. This Court also observed that , that having not been done, his remedy is not to file a fresh suit for partition instead shall seek review of the preliminary decree passed in O.S. No. 555 of 1993 or to file an appeal against the preliminary decree. This Court justified the decision of the trial court regarding the maintainability issue of O.S. No. 586 of 2003 , upheld the objection raised by the plaintiff /1st respondent and dismissed the writ petition without prejudice to the right of the 5th defendant/appellant to workout the aforesaid remedies. 5. I have perused the contention raised by the appellant who is the 5th defendant along with defendants 1, 2 and 7 in O.S. 555/1993..In the written statement filed by these defendants in that suit, it is seen that these defendants prayed that a decree may be passed in such a way that the building is allotted to the share of the 7th defendant since he is not having any other house and he is residing in the said building for the last more than 13 years. So the trial court passed a decree as mentioned in the 1st paragraph of this judgment. It is also important to note that the trial court has not made any declaration of right in respect of balance 4/5th share of plaint schedule property. The trial court has not declared the shares of other co-owners The trial court only decreed that the R.F.A. No. 478 of 2009 -4- plaintiff/1st respondent is entitled to 1/5th share in the plaint schedule property. So the present appellant and other co-owners can enjoy the rest of the property viz. 4/5th share. This Court rightly held in writ petition No.14786/2009 that the remedy opened to 5th defendant/appellant is to seek a review of the preliminary decree passed in O.S. No. 555/1993 or to file an appeal against the preliminary decree passed in that suit. 6. I have examined the sale certificate issued to the plaintiff /1st respondent and to the 5th defendant/appellant which are produced by the 5th defendant/appellant as Annexure A4 and A3 respectively In Annexure A4 sale certificate dated 23.3.1982 the property purchased by the plaintiff in the suit is 1/5th shares in Survey No1784P of Thrissur Vilage. It is seen in Annexure-A4 that the property is having an extent of 32 Cents. In Annexure A3 sale certificate dated 7.7.1978 which stands in the name of the 5th defendant/appellant the property purchased by him is 1/5th share of the property having an extent of 38 ½ Cents in Survey No. 1784 and 1782 of Thirissur Village respectively. It is not known whether Annexrue A3 property and A4 property are one and the same. The delay in filing this appeal is very inordinate. The delay sought to be condoned is 4058 days i.e 11 years and more than 11 months In this context, I have also examined the merits of the case pleaded in this appeal. As observed earlier the appellant has no case before the court below that the plaintiff/1st respondent is not entitled to 1/5th share in the plaint R.F.A. No. 478 of 2009 -5- schedule property. As per Ext.A1 produced in O.S. 555/1993 ,the plaintiff is one of the co-owners of the plaint schedule property and since he is a co-owner he is entitled to 1/5th share in the plaint schedule property. In that situation the plaintiff/1st respondent filed final decree application. The preliminary decree was passed on 20.1.1998. There was no appeal against the preliminary decree dated 20.1.1998. The final decree application was pending for the last 9 years before the trial court , I think that O.S.586/2003 and W.P.(C) No. 14786 of 2009 and this appeal were filed by the 5th defendant/appellant by raising contradictory and conflicting pleas so as to protract the final decree proceedings. In O.S. 555/1993, the 5th defendant/appellant has no case the plaintiff is not a co-owner . But in the subsequent suit(O.S. No. 586/2003) he raised a contention that the 1/5th right claimed by the plaintiff/1st respondent has been purchased by him long before plaintiff's/1st respondent's purchase and therefore according to the 5th defendant/appellant the said 1/5th share of the property did not belong to the plaintiff/1st respondent. in spite of the fact that the preliminary decree was passed on 20.1.1998 the 5th defendant/appellant herein did not choose to file any review petition or appeal against the preliminary decree. Instead he filed a separate suit as O.S. 586/2003 before the trial court after a period of five years of the passing of the preliminary decree and at a time when the final decree is pending adjudication. Ultimately O.S. 586/2003 was dismissed on 17.3.2009 finding that the suit is not maintainable which was confirmed by this Court R.F.A. No. 478 of 2009 -6- in the above referred writ petition. So it has to be inferred that this appeal is filed on the basis of the observation of this Court in the judgment in the writ petition. On the basis of the observation contained in the said judgment, I have again examined the contention raised by the contesting defendants in detail in O.S No.555/1993 before the court below, the preliminary decree passed by the court below and the subsequent events. I do not find any merit in this appeal and that there is any bonafides in filing this appeal belatedly. The opportunity of filing an appeal or review petition as the case may be is available to the 5th defendant/appellant right from 20.1.1998, but he did not avail of that opportunity . There is no sufficient or satisfactory explanations for condoning the delay in C.M.Application No. 1201 of 2009. In the aforesaid circumstances C.M. Application No.1201/2009 does not merit any consideration, therefore dismissed Consequently, the appeal also stands dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.F.A. No. 478 of 2009 ---------------------------- JUDGMENT 7th October, 2009