IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 SA.No. 981 of 1996(A) --------------------- OS.320/1985 OF MUNSIFF COURT, ATTINGAL AS.76/1989 of ADDITIONAL SUB COURT,ATTINGAL .................... APPELLANT(S):APPELLANTS/PLAINTIFFS -------------------------------------------- 1. SADANANDAN SOUMI, MANAKKATTUVILAKATH VEEDU MALAMEL PARAMB, KADINAMKULAM MURI DO.VILLAGE, (MINOR REPRESENTED BY MOTHER, THE 2ND APPELLANt) 2. BHARATHI VILASINI MANAKKATTUVILAKATH VEEDU MALAMEL PARAMB, KADINAMKULAM MURI, DO. VILLAGE. BY ADV. SRI.SIBY MATHEW SMT.P.A.REZIYA SRI.WILSON URMESE RESPONDENT(S): RESPONDENTS/DEFENDANTS ---------------------------------------------------- 1. SOUDAMINI VIJAYAMMA PANAYIL VEEDU MALAMEL PARAMB, KADINAMKULAM MURI DO. VILLAGE. 2. SOUDAMINI SANTHA, PARAMKIMANVILA THADATHARIKATH PUTHEN VEEDU FROM KUZHIVILA VEEDU, PALAYATHUM MUKALIL, CHELLAKOTTU MURI, NEDUMANGAD VILLAGE, FROM DO. DO. 3. KESAVAN RAGHAVAN, KATTUKULATHIL VEEDU, KARIYIL MURI, MENAMKULAM VILLAGE,KAZHAKKUTTAM. (DIED. LRS. IMPLEADED) BY ADV. SRI.M.BALAGOVINDAN FOR R4 TO 8 SRI.D.KISHORE SMT.PAMALA.P.K. FOR R1 & R2 ADDL.RESPONDENT NO.4:- ADDL.R4. HYMAVATHY, W/O.LATE RAGHAVAN, KATTUKULATHIL VEEDU, KARIYILMURI MANAMKULAM VILLAGE, KAZHAKOOTTOM P.O. ADDL.R5. BABY, D/O.LATE RAGHAVAN, KATTUKULATHIL VEEDU, KARIYILMURI, MANAMKULAM VILLAGE, KAZHAKOOTTOM. ADDL.R6. USHA, D/O.LATE RAGHAVAN, KATTUKULATHIL VEEDU, KARIYILMURI MANAMKULAM VILLAGE, KAZHAKOOTTOM. ADDL.R7. SURESH KUMAR, S/O.LATE RAGHAVAN KATTUKULATHIL VEEDU, KARIYILMURI MANAMKULAM VILLAGE, KAZHAKOOTTOM. ADDL.R8. RAJEEVEN, S/O.LATE RAGHAVAN, KATTUKULATHIL VEEDU, KARIYILMURI, MANAMKULAM VILLAGE, KAZHAKOOTTOM. ADDITIONAL RESPONDENTS 4 TO 8 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED THIRD RESPONDENT AS PER ORDER DATED 17.7.2003 IN CMP 316/03. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 8 / 2 / 2010 THE COURT ON 08/02/2010 DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A.No. 981 OF 1996 =========================== Dated this the 8th day of February,2010 JUDGMENT Plaintiffs in O.S. No.320/1985 on the file of Munsiff Court, Attingal are the appellants. Defendants are the respondents. Suit was filed originally for declaration of title and permanent prohibitory injunction and later got amended incorporating an additional relief that as the property was taken delivery in execution of the ex parte decree in O.s.272/1984, the ex parte decree is to be set aside and the building taken delivery is to be restored to the possession of appellants. Appellants contended that plaint schedule property 5 ½ cents in survey No.1204/1 of Kadinamkulam village, Kazhakuttom Taluk form part of 12 ½ cents and Plaint schedule property originally belonged to Kaliyambi Govindan and S.A.981/1996 2 on his death the properties were divided under Ext.A2 partition deed in 1952 whereunder the properties were divided and allotted to the mother Bhagavathi and son Krishnan and daughters Dakshayani and Soudamini. Soudamini was allotted the properties shown in the D schedule and on her death, it devolved on her children Sasidharan and Santha. The said legal heirs by settlement deed and gift deed transferred their rights in favour of first respondent/first defendant and along with the second respondent the daughter under Ext.A1 sale deed dated 30.11.1984 plaint schedule property was assigned in favour of the appellants and appellants have title and possession to the plaint schedule property. It is contended that third respondent instituted O.S.272/1984 against respondents 1 and 2 and obtained an ex parte decree and in execution of the ex parte decree subsequently took delivery of the building and the property and appellants have title to the plaint schedule property and therefore the title of the S.A.981/1996 3 appellants is to be declared. It is contended that third respondent who alone contested the suit did not have any right or title to the property and Ext.B1 the ex parte decree was obtained fraudulently and it is not binding on the appellants and therefore appellants are entitled to the decree sought for. 2. Respondents 1 and 2 remained ex parte and third respondent alone resisted the suit. Third respondent contended that he is unaware of Ext.A2 partition deed and the executant of Ext.A2 alone have no right to execute the partition deed, without the junction of Bhargavi the daughter of Chinna Appi the first wife of Kaliyambi Govindan and therefore based on Ext.A2 partition deed appellants cannot claim any right to the property under Ext.A1 sale deed. It is contended that Bhargavi the daughter of Kaliyambi Govindan had assigned her fractional right in the plaint schedule property in favour of Abdul Rahiman under Ext.A20 assignment deed and under Ext.A19 that S.A.981/1996 4 right was transferred in favour of the third respondent and while so third respondent instituted O.S.272/1984 seeking recovery of possession of the building from the possession of respondents 1 and 2 and after the decree obtained in that suit, execution proceedings were initiated and then the suit was filed and appellants are not entitled to the decree sought for. After the plaint was amended an additional written statement was filed contending that the decree is binding on the appellants who are claiming rights under respondents 1 and 2 against whom Ext.B1 decree was passed subsequent to the decree and therefore the suit is only to be dismissed. 3. Learned Munsiff on the evidence of PWs. 1 to 4 DW1 and Exts.A1 to A15 and B1 dismissed the suit holding that appellants did not establish their title or identity of the plaint schedule property. Appellants challenged the decree and judgment before Sub Court, Attingal in A.S.76/1989. Before the First Appellate Court, appellant produced S.A.981/1996 5 documents as additional evidence. Learned Sub Judge on reappreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the Second Appeal. 4. Second Appeal was admitted formulating the following substantial questions of law. 1. Were not the courts bound to frame an issue as to whether the judgment and decree in O.S.272/84 is to be set aside since it was specifically pleaded that the real owner of the plaint schedule property was not made a party to the said suit and the decree was obtained by fraud and collusion and when there was a prayer for setting aside the judgment and decree in O.S.272/1984? S.A.981/1996 6 5. Learned counsel appearing for the appellants was heard. 6. Learned counsel argued that Ext.A2 partition deed establishes that the D schedule property therein was allotted to the share of Soudamini and Ext.A1 etablishes that on the death of Soudamini, her right in the D schedule property therein was transferred by her legal heirs, Sasidharan and Santha, in favour of Vijayamma who in turn transferred her right in November 1984 in favour of appellants and as appellants are not parties to O.S.272/1984, the decree is not binding on them. It is also argued that Ext.B1 decree was obtained ex parte and respondents 1 and 2 did not contest the case and the decree was fraudulently obtained and is not valid and binding on the appellants as all these owners of the property under Ext.A2 partition deed were not made defendants in the suit and in such circumstances, learned Munsiff and learned Sub Judge should have found that appellants are entitled to the decree sought for. S.A.981/1996 7 It was argued that Ext.B1 is an ex parte decree obtained fraudulently as is clear from the fact that respondents 1 and 2 the defendants who assigned the property under Ext.A1 did not contest the suit and in such circumstances the decree is to be set aside. 7. Appellants are setting up title to the plaint schedule property under Ext.A1. The title obtained under Ext.A1 is the title obtained by Vijayamma the assignor from the legal heirs of one of the sharers under Ext.A2 partition deed. Under Ext.A2 partition deed, the properties were divided between Bhagavathi the mother and two daughters Dakshayani and Soudamini and son Krishnan. The property allotted to Soudamini is D schedule. It is the case of appellants that on the death of Soudamini, her right devolved on Sasidharan and Santha, who in turn assigned it in favour of Vijayamma and Vijayamma assigned it under Ext.A1 to the appellants. On the other hand, case of third respondent is that Kaliyambi Govindan had a first S.A.981/1996 8 wife by name Chinna Appi and he married Bhagavathi the mother of Soudamini only later, after the death of Chinna Appi. It is contended that on the death of Chinna Appi, her right devolved on Bhargavi and therefore on the death of Kaliambi Govindan his rights will devolve on Bhagavathi and her children and also Bhargavi and Bhargavi is not a party to Ext.A2 partition deed and so it is not binding on her or her assignee. Ext.A20 the assignment deed executed by Bhargavi, in favour of Abdul Rahiman establishes that she is the daughter of Chinna Appi, the first wife of Kaliyambi Govindan. Under Ext.B1 she had assigned her right in favour of Abdul Rahiman who in turn under Ext.A19 assigned it in favour of third respondent in 1975. Third respondent thereafter instituted O.S.272/1984 against respondents 1 and 2, who are claiming right from Soudamini, one of the daughters of Bhagavathi and that too on the right obtained under Ext.A2 partition deed. Though Ext.B1, the decree in O.S.272/1984 is ex parte, it is admitted at S.A.981/1996 9 the time of evidence that a petition was filed by the first respondent to set aside the ex parte decree and when it was dismissed, an appeal was filed and challenging that order, even a CMA was filed and it was also dismissed. Therefore it cannot be contended that Ext.B1 decree was obtained fraudulently in collusion with the assignees under Ext.A1. Ext.A1 assignment deed was executed by respondents 1 and 2, the defendants in O.S.272/1984 when that suit was pending. Therefore Ext.A1 is definitely hit by the principles of lispendens. Being the assignees of the defendants in O.S.272/1984, Ext.B1 decree is binding on them. In such circumstances, the appellants are not entitled to get a declaration that Ext.B1 decree is not binding on them. Eventhough no specific issue was framed on whether Ext.B1 decree is liable to be set aside by the trial court, it was considered by the learned Munsiff. Learned Sub Judge in the first appeal has also considered this question in detail. In such circumstances, the S.A.981/1996 10 failure to frame a specific issue is not fatal and on that ground the concurrent judgments cannot be set aside. 8. Added to this appellants are claiming right over 5 ½ cents of property being part of 12 ½ cents allotted to Soudamini under Ext.A1. Without establishing the identity of that property, appellants cannot claim the decree as rightly found by the courts below. On that ground also, appellants are not entitled to the decree. There is no merit in the appeal. It is dismissed but without costs. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006