IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 RSA.No.487 of 2008 (G) ---------------------------- AS.353/2002 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.1243/2001 of ADDL.M.C.(RENT CONTROL),TRIVANDRUM .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------- HARI SEKHAR, S/O.SOMASEKHARAN NAIR, CHERUKUNNATHU PUTHEN VEEDU, F-92, MOSQUE LANE, KESAVADASAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL RESPONDENTS: RESPONDENTS/DEFENDANTS: ------------------------------------------------------ 1. RADHAMMA, W/O.SOMASEKHARAN NAIR, CHERUKUNNATHU VEEDU, F-88, MOSQUE LANE, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM. 2. GANESH KUMARAN NAIR, S/O.SOMASEKHARAN NAIR, CHERUKUNNATHU VEEDU, F-88, MOSQUE LANE, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM. 3. SREEKUMARAN NAIR, S/O.SOMASEKHARAN NAIR, CHERUKUNNATHU VEEDU, F-88, MOSQUE LANE, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM. 4. K.SARADAMMA, D/O.KAMALAKSHY AMMA, T.C.6/3425, PUSHPAMANGALAM, VATTIYOORKAVU, NOW RESIDING AT KAKKANATTU LANE, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.487 of 2008 ------------------------------------------------ Dated this the 30th day of June, 2008 JUDGMENT The plaintiff whose suit for partition of the scheduled property setting aside the alienation thereof has been concurrently dismissed by the courts below, is the appellant. It is against the concurrent verdict that this appeal has been filed by the plaintiff. 2. Plaintiff instituted O.S.1243/01 before the Munsiff's Court, Thiruvananthapuram for partition of the scheduled property alleging inter alia that plaintiff and defendants 2 and 3 are the children of the first defendant; that the parties are governed by Hindu Succession Act; that the scheduled property forms part of larger extent of 32 cents which originally belonged to the first defendant by virtue of partition deed No.1211 R. S. A. No.487 of 2008 -2- of 1124 ME of Sub Registry Office Pattom when she was a minor; that the said 32 cents was allotted to the Thavazhy of the first defendant included under 'F' schedule to the said partition deed; that on attaining majority the first defendant got physical possession of her share and she got married in the year 1960 and defendants 2 and 3 were born respectively in 1961 and 1964 and the plaintiff was born in the year 1966; that the plaintiff and defendants 2 and 3 acquired right by birth over the said Thavazhy property and thereby he is entitled to get 1/4th share in the scheduled property; that out of the total 32 cents, the plaintiff and defendants 1 to 3 have alienated portions to strangers and the remaining property is scheduled as plaint schedule property; that originally the property was not having any road frontage; that during 1998 when the plaintiff was away R. S. A. No.487 of 2008 -3- at Bombay, the first defendant along with Karunakara Panicker developed a road through the northern portion of the entire property; that the scheduled property of six cents comes immediately on the south of the said road; that the defendant had constructed a foundation in the plaint schedule property after formation of the said road; that on getting information of the said venture plaintiff interfered and prevented further construction; that the plaintiff requested defendants 1 to 3 to partition the schedule property by metes and bounds and they refused to effect a partition; that while so on 12/08/01 the fourth defendant made preparations to put up a building in the scheduled property claiming right that she has purchased the said property from one Sheela Kumari; that on enquiry it is learned that the first defendant has executed sale deed in R. S. A. No.487 of 2008 -4- respect of the scheduled property in favour of the aforesaid Karunakara Panicker as sale deed No.3264 on 13/01/98 and the said Karunakara Panicker bequeathed the property in favour of his daughter L.K.Sheela and the fourth defendant has purchased the property from the aforesaid Sheela Kumari; that the first defendant has no right to execute a document independently with respect to any specific portion of the property and that unless the property is partitioned by metes and bounds the defendant or any other co-owner has no independent right to execute any document with respect to their rights over any portion of the scheduled property except to the extent of her share and that the attempt of the fourth defendant amounts to ouster of the plaintiff and other co-owners from the scheduled property by putting up new constructions which will make an equitable partition impossible; R. S. A. No.487 of 2008 -5- that the attempt of the fourth defendant is illegal and that any construction in the scheduled property has to be restrained. 3. Defendants 1 to 3 remained absent and ex parte. The fourth defendant contended that the suit is not maintainable that the acquisition of 32 cents by the first defendant is to be proved by the plaintiff that the plaintiff has no right over the scheduled property that actual extent of the plaint scheduled property is 6.350 cents; that the plaintiff is living with defendants 1 to 3 and had knowledge about the alienation of the scheduled property in favour of Karunakara Panicker and to this defendant; that the property was having road frontage when the fourth defendant purchased it and it is incorrect to say that the foundation of the scheduled property was constructed by Karunakara Panicker/the father of Sheela R. S. A. No.487 of 2008 -6- Kumari; that the plaintiff never made any objection to the construction carried out in the scheduled property and the suit has been filed only to cause hardship to the fourth defendant. The property is not partible as prayed for. The fourth defendant has taken steps to construct building in the scheduled property after obtaining permission from the City Corporation and sanction from TRIDA. She had availed a loan of Rs.2 lakhs from the State Bank of Travancore and has availed Provident Fund advance for the construction of the building and the suit has been filed when the fourth defendant has completed all steps to start construction of the building in the scheduled property. The scheduled property is having well defined boundaries and it is in exclusive possession of the fourth defendant and she is in absolute possession and enjoyment of the same. The fourth defendant R. S. A. No.487 of 2008 -7- who is a bona fide purchaser cannot be restrained by a decree of injunction. The attempt of the plaintiff is to harass the fourth defendant. The first defendant has obtained another 16 cents of property in Sy. No.947/2 of Mulloor village from her mother by virtue of a gift deed; and she had acquired eight cents of property by virtue of partition deed and out of the total 32 cents even admitting the claim of 1/4th share each of the plaintiff and the defendants 2 and 3 the first defendant has title over 24 cents of land and she can alienate the said property without the junction of anyone else. The fourth defendant has filed O.S.75/02 for declaring her title over the scheduled property in which the plaintiff herein alone entered appearance and the other defendants did not contest the same and it appears that this suit also is filed in collusion with defendants 1 to 3. On the above R. S. A. No.487 of 2008 -8- contentions, the fourth defendant prayed for a dismissal of the suit with her costs. 4. On the above pleadings, the trial court raised necessary issues for trial and after trial and considering the evidence adduced at trial which consisted of oral evidence of PW1 and DW1 and documentary evidence of Exts.A1, B1 and B2 as also Ext.C1, dismissed the suit. Appeal preferred by the appellant/plaintiff against the said judgment as A.S.353/02 was dismissed by the first appellate court concurring with the findings of the trial court and hence, this R.S.A by the plaintiff against the concurrent verdict in the case. 5. It is the case of the plaintiff that altogether under Ext.A1 partition of 1124 ME the first defendant obtained 32 cents towards her share for the benefit of the Thavazhy consisting of the first defendant as also R. S. A. No.487 of 2008 -9- defendants 2 and 3 and the plaintiff who are her children. It is not assailed that the property obtained by the first defendant under Ext.A1 is not property allotted to her Thavazhy, but all the same the plaintiff strangely enough does not assail the sale deeds executed by the first defendant and others in relation to the entire property other than six cents from out of the said 32 cents and the suit is only in relation to the scheduled six cents which has been purchased by the fourth defendant from one Sheela Kumari who got it under a bequeath from her father Karunakara Panicker. The said Karunakara Panicker is said to be the Vendee of the scheduled property from the first defendant. The said Karunakara Panicker is not impleaded in the suit. On the case set up Karunakara Panicker has bequeathed the property in favour of his daughter Sheela R. S. A. No.487 of 2008 -10- Kumari. Sheela Kumari also is not impleaded as a party and it is by subsequent assignment by Sheela Kumari that the fourth defendant gets title over the property. Thus, without impleading the immediate transferee of the scheduled property from the first defendant and the subsequent transferee the suit has been filed only as against the subsequent assignee who purchased the property from Sheela Kumari. The document in her favour or a copy thereof is not produced. The relief of having a sale deed executed by the first defendant cannot be sought for and obtained without impleading the immediate transferee and the assignees but impleading only the last purchaser who is in possession of the suit property as on the date of suit. Further, it is not stated anywhere as to why the alienation in respect of the other portions of the 32 cents excluding the scheduled property R. S. A. No.487 of 2008 -11- are not assailed. It is seen stated in the judgment of the trial court that the O.S.75/02 is filed by the fourth defendant for declaration of her title over the scheduled property and that in the said suit the present appellant/plaintiff alone entered appearance. There is no mention as to what happened to the said suit especially when the said suit is one for declaration of title and that has got immediate bearing on the reliefs sought for in the present plaint in O.S.1243/01. In fact a joint trial of those two suits should have been conducted and the counsel for the appellant is unable to submit as to what happened to O.S.75/02 instituted by the fourth defendant. At the time of institution of the suit by the plaintiff she was aged 34 years as seen described in the plaint itself. No reason is assigned for not assailing the other sale deeds executed in respect of the balance 23 R. S. A. No.487 of 2008 -12- cents from out of the 32 cents obtained under Ext.A1 partition. It is seen from the contention of the fourth defendant that the suit has been filed at a time when she has availed of loan and began construction of a building in the scheduled property. It appears that the suit was filed by the appellant/ plaintiff to appropriate some more money from the fourth defendant putting her to difficulties when assignment of the property was made in her favour not by the first defendant but she obtained it only by subsequent assignments. The plaintiff cannot hope to get the relief without assailing the document executed by the first defendant in favour of Karunakara Panicker and the subsequent assignments in favour of his daughter Sheela Kumari and the sale in favour of the fourth defendant. I see no merit in the request made by the counsel for the appellant R. S. A. No.487 of 2008 -13- to have this case remanded for consideration afresh enabling the appellant to cure the defects and to have a denovo trial. No substantial question of law as such which has got a bearing on the suit going by the nature of the suit and the manner in which it has been framed, does arise for consideration in this R.S.A. 6. In the result, refusing admission, I dismiss this R.S.A in limine. K.P.BALACHANDRAN, JUDGE kns/-