IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 RSA.No. 341 of 2008() --------------------- AS.52/2002 of PRL.SUB COURT,THIRUVANANTHAPURAM. OS.1106/1998 of III ADDL.MUNSIFF'S COURT, THIRUVANANTHAPURAM .................... APPELLANTS/APPELLANTS/ADDL.PLAINTIFFS 2 TO 6: ------------------------------------------------------ 1. MADHAVIKUTTY AMMA, AGED 65, WIDOW OF LATE DAMODARAN NAIR, 'KARTHIKA', KANJIRAMPARA, MARUTHAMKUZHI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 2. DAMODARAN PILLAI NANDAKUMAR, AGED 40, 'KARTHIKA', KANJIRAMPARA, MARUTHAMKUZHI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 3. MADAVIKUTTY AMMA, SANDHYARANI, AGED 37, 'KARTHIKA', KANJIRAMPARA, MARUTHAMKUZHI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 4. MADAVIKUTTY AMMA LEKSHMI RANI, AGED 35, 'KARTHIKA', KANJIRAMPARA, MARUTHAMKUZHI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 5. DAMODARAN PILLAI, MANJUKUMAR, AGED 33, 'KARTHIKA', KANJIRAMPARA, MARUTHAMKUZHI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENTS/RESPONDENTS/DEFENDANTS 1 TO 8 AND 10 TO 26 ---------------------------------------------------- 1. DEVAKI AMMA, SARADAMMA, PLAVARATHALA VEEDU, CHITTATTINKARA, ANCHAMADA MURI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. -2- R.S.A.NO.341/2008 2. DEVAKI AMMA MADHAVI AMMA, PLAVARATHALA VEEDU, CHITTATTINKARA, ANCHAMADA MURI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 3. DEVAKI AMMA MAHESWARI AMMA, AJAYA BHAVAN MANNAMMOOLA, PEROORKADA, THIRUVANANTHAPURAM. 4. DEVAKI AMMA JAGADAMMA, PADMANABHA BHAVAN, CHITTATTINKARA, THIRUVANANTHAPURAM. 5. DEVAKI AMMA SULOCHANA, PLAVARATHALA VEEDU, CHITTATTINKARA, ANCHAMADA MURI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 6. AMMUKUTTY AMMA JANAKI AMMA, PLAVARATHALA VEEDU, CHITTATTINKARA, ANCHAMADA MURI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 7. BHAGEERATHI AMMA MOHANAN NAIR, PLAVARATHALA VEEDU, CHITTATTINKARA, ANCHAMADA MURI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 8. SASIDHARAN NAIR, S/O.BHAGEERATHI AMMA, PLAVARATHALA VEEDU, CHITTATTINKARA, ANCHAMADA MURI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 9. AMMUKUTTY AMMA MADHAVI AMMA, PLAVARATHALA VEEDU, CHITTATTINKARA, ANCHAMADA MURI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 10. PAPPU PILLAI GANGADHARAN NAIR, T.C.9/2086, LAAKSHMIKRIPA, VATTAVILA, THIRUMALA, THIRUVANANTHAPURAM. 11. SEKHARAN NAIR, S/O.AMMUKUTTY AMMA, KUNNUMPURATHU VEEDU, CHITTATTINKARA, THIRUVANANTHAPURAM. 12. MADHAVAN NAIR, S/O.AMMUKUTTY AMMA, KUNNUMPURATHU VEEDU, CHITTATTINKARA, THIRUVANANTHAPURAM. 13. PACHI AMMA KAMALAKSHI AMMA, PLAVARATHALA VEEDU, CHITTATTINKARA, THIRUVANANTHAPURAM. -3- R.S.A.NO.341/2008 14. PACHI AMMA BHAGAVATHIKUTTY AMMA, MANGLAVU VEEDU, CHITTATTINKARA, THIRUVANANTHAPURAM. 15. VELAYUDHAN PILLA RAVEENDRAN NAIR, MANGLAVU VEEDU, CHITTATTINKARA, THIRUVANANTHAPURAM. 16. VELAYUDHAN PILLA SASIDHARAN NAIR, MANGLAVU VEEDU, CHITTATTINKARA, THIRUVANANTHAPURAM. 17. MADHAVAN PILLAI VISWANATHAN NAIR, PLAVARATHALA VEEDU, CHITTATTINKARA, ANCHAMADA MURI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 18. SARASWATHY AMMA, D/O.LEKSHMYKUTTY AMMA, PLAVARATHALA VEEDU, CHITTATTINKARA, ANCHAMADA MURI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 19. BABY, W/O.KARUNAKARAN NAIR, SAJITHA BHAVAN, CHANGA VELLANAD, NEDUMANGAD. 20. SAJITHA, D/O.BABY, SAJITHA BHAVAN, CHANGA VELLANAD, NEDUMANGAD. 21. LEKHA, D/O.BABY, SAJITHA BHAVAN, CHANGA VELLANAD, NEDUMANGAD. 22. SHYLAJA, D/O.BABY, SAJITHA BHAVAN, CHANGA VELLANAD, NEDUMANGAD. 23. M.KRISHNA PILLAI, KRISHNAVILASOM, PADAYANI ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM. 24. S.USHAKUMARI, W/O.R.SUKUMARAN NAIR, PADAYANI ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM. 25. K.MADHAVAN PILLAI, S/O.SAROJINI AMMA, PADAYANI ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWIN HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.341 OF 2008 --------------------------- DATED THIS THE 3RD DAY OF JULY, 2009 JUDGMENT Additional plaintiffs 2 to 6, who are the legal heirs of the deceased original plaintiff, in O.S.No.1106/98 on the file of the III Additional Munisff's Court, Thiruvananthapuram are the appellants. This appeal is directed against the judgment and decree in A.S.No.52/2002 on the file of the Principal Sub Court, Thiruvananthapuram. The suit was instituted by the original plaintiff for declaration, partition of 1/7 share over the plaint schedule property and for declartion that the partition deed No.3768/1969 and the judgment and the decree in O.S.No.881/1982 would not bind the plaintiff. 2. The plaint schedule property having an extent of 49.250 cents of land forms part of a larger extent of 1 acre. The grandfather of the original plaintiff, one Mr. Kesava Pillai, who was the Karnavan of the tharwad had leased out the said one acre -2- R.S.A.No.341/2008 to one Kuttan Pillai. On the death of Kesavan Pillai, Pappu Pillai, who is none other than the father of the original plaintiff, instituted O.S.No.1379/1122 to redeem the mortgage. That suit was decreed granting redemption of mortgage. An application was filed by the lessee as O.A.No.342/1965 before the Land Tribunal, Kollam for assignment of the entire 1 acre of land. The original plaintiff's father Pappu Pillai was the respondent in O.A.No.342/1965. The Land Tribunal allowed resumption of one half of the property. On getting release of the plaint schedule property Pappu Pillai executed a mortgage deed (Ext.A2) in favour of the 11th defendant for a period of six years. It is submitted by the plaintiffs that in order to raise a fraudulent claim over the plaint schedule property, the defendants 6 to 10 and 12 to 23 in collusion with another had executed a partition deed No.3768/1969 and that the original plaintiff nor the additional plaintiffs had any knowledge of O.S.No.881/1982 or the appellate judgment. It is further averred that the plaintiffs were -3- R.S.A.No.341/2008 ready to deposit the mortgage amount of Rs.6,000/- and redeem the mortgage. The plaintiffs claim 1/7 share in the plaint schedule property. 3. Written statement was filed by the defendants 1 to 5 claiming 5/7 share in the plaint schedule property. The contesting defendants inter alia contended that the Karnavan Kesava Pillai was not in possession of the plaint schedule property and he had no right to give the property on lease. It was further contended that the mortgage executed by late Pappu Pillai in favour of the 11th defendant is void and invalid and the same would not bind the Tharwad and that though Pappu Pillai had not challenged Ext.A3 partition deed, he had by his own conduct accepted the same. The trial court, after appreciating the oral and documentary evidence, namely, PW-1, Exts.A1 to A8 and B1to B5 and C1, held that on going through Ext.A7 order it is seen that the petition for resumption in OA. case was filed by Pappu Pillai himself and not by Krishna Pillai as alleged -4- R.S.A.No.341/2008 in the plaint, that from the said order it is clear beyond any confusion or doubt that Pappu Pillai obtained the property for and on behalf of his Tharwad and that by Ext.P7 order he never acquired any absolute right, title or interest over the plaint schedule property. But from Exts.A1 and A2 it can be seen that the said Pappu Pillai has tried or rather made attempts to bring the property to his sole ownership. Ext.A1 is a release deed executed by Krishna Pillai, who was the prior mortgagee. The trial court also noted that after the death of Pappu Pillai, some of the executants of Ext.A3 partition deed filed O.S.No.881/82 against the 11th defendant to redeem the mortgage created under Ext.A2 mortgage deed. That suit was decreed against the 11th defendant and the matter was confirmed in second appeal. The certified copy of the judgment of this Court is marked as Ext.B2 and Ext.B3 is the certified copy of the delivery list prepared in pursuance of the decree in the said suit. From Ext.B3 it can be seen that the property was delivered over to the plaintiffs in -5- R.S.A.No.341/2008 O.S.No.881/82 on 6/2/1998. Subsequent to the said delivery the present suit has been filed by the brother of the defeated defendant in O.S.No.881/82 claiming that he was not aware about such a decree and delivery, since he is on inimical terms with the 11th defendant. 4. In the second appeal (S.A.No.303/95) referred above this Court observed that Pappu Pillai had accepted the partition deed of 1969 by his subsequent conducts. In the facts and circumstances stated above, the trial court came to the irresistible conclusion that Pappu Pillai had the knowledge about Ext.A3 partition deed and therefore held that Pappu Pillail did not raise any claims. In the light of the aforesaid findings, the trial court dismissed the suit. 5. Before the Appellate Court also the plaintiffs agitated the very same contentions. The Appellate Court examined the oral and documentary evidence. On an elaborate discussion of the facts and circumstances and the documentary evidence, the -6- R.S.A.No.341/2008 Appellate Court also reached the very same conclusions. The finding arrived at by the trial court was confirmed by the Appeal Court solely based on the facts and circumstances of the case and the evidence on record. I do not find any ground is made out to take a different view. Since the questions were decided solely based on the evidence, I find that there is no scope for invoking the jurisdiction under Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and it is accordingly dismissed in limine. HARUN-UL-RASHID, Judge. kcv.