IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 SA.No. 827 of 2000(F) --------------------- AS.686/1994 of SUB COURT,NEYYATTINKARA OS.155/1983 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANT(S): ---------------------- 1. SUMATHI AMMA W/O.KRISHNA PILLAI, AGED ABOUT 49 PUTHVEEDU OF KARODE DESOM KARODE VILLAGE 2. KRISHNA PILLAI VELAPPAN NAIR AGED ABOUT 35, OF PUTHUVEEDU OF KARODE DESOM, KARODE VILLAGE 3. KRISHNA PILLAI SURENDRAN NAIR AGED ABOUT 35, PUTHUVEEDU OF KARODE DESOM, KARODE VILLAGE 4. KRISHNA PILLAI MADHUSOODANAN NAIR AGED ABOUT 28, PUTHUVEEDU OF KARODE DESOM, KARODE VILLAGE 5. SUMATHI AMMA GIRIJA AGED ABOUT 30 YEARS PUTHUVEEDU OF KARODE DESOM, KARODE VILLAGE 6. SUMATHI AMMA GEETHA AGED ABOUT 26 YEARS PUTHUVEEDU OF KARODE DESOM, KARODE VILLAGE 7. KUTTAPPAN PILLAI SUKUMARAN NAIR AGED ABOUT 50, PRASANTH KARODE DESOM, KULATHOOR VILLAGE 8. BHAGAVATHI PILLAI DEVAKI PILLAI AGED ABOUT 60, PUTHUVEEDU KARODE DESOM, KULATHOOR VILLAGE SA 827/00 -2- 9. KUTTAPPAN NAIR GOPALAKRISHNAN NAIR AGED ABOUT 58 YEARS PULIYARATHAL PUTHENVEEDU, ERICHALLOOR DESOM KARODE VILLAGE 10. LEKSHMI PILLAI GOMATHY AMMA AGED ABOUT 54 YEARS PULIYARATHALA PUTHENVEEDU ERICHALLOOR DESOM KARODE VILLAGE 11. BHASKARA PILLAI SUKUMARAN NAIR GOVERNMENT SERVANT AGED 45 YEARS, PUTHUVEEDU ERICHALLOOR DESOM, KARODE VILLAGE 12. BHASKARA PILLAI RADHAKRISHNAN NAIR AGED 35 YEARS, PUTHUVEEDU ERICHALLOOR DESOM, KARODE VILLAGE 13. BHAGEERATHI AMMA OMANA AMMA AGED ABOUT 50 YEARS, PUTHUVEEDU ERICHALLOOR DESOM, KARODE VILLAGE 14. BHAGEERATHI AMMA GOURIKUTTY AMMA AGED ABOUT 48 YEARS, PULIVILAKATHU VEEDU ERICHALLOOR DESOM, KARODE VILLAGE 15. BHAGEERATHI AMMA REMA DEVI AGED ABOUT 37 YEARS, PUTHUVEEDU ERUCHALLOOR DESOM, KARODE VILLAGE BY ADV. SRI.R.T.PRADEEP RESPONDENT(S): ------------------------ 1. SANKARA PILLAI MADHAVAN PILLAI AGED 68 YEARS, RESIDING IN ETTIYACHANVILAKATHU VEEDU AYRAYIL DESOM, KARODE VILLAGE, NEYYATTINKARA TALUK 2. KRISHNA PILLAI NARAYANA PILLAI VADAKKE KADAVARAKKAL PUTHEN BUNGLOW KARODU DESOM, KULATHOOR VILLAGE 3. KAMALAMMA PILLA SUKMARI AMMA] VADAKKE KADAVARAKKAL PUTHEN BUNGLOW KARODU DESOM, KULATHOOR VILLAGE SA 827/00 -3- 4. RAMAN PILLAI BALAKRISHNA PILLAI KOCHOTTUKONATHU MELE THANNIVILA VEEDU UDIYANKULANGURA DESOM, CHENKAL VILLAGE 5. PARVATHI PILLAI THAMARAKSHI AMMA PULIVILAKATHU VEEDU, KARODE DESOM 6. SANKARA PILLAI VISWANADHAN NAIR, PULIVILAKATHU VEEDU, KARODE DESOM 6. SANKARA PILLAI VISWANADHAN NAIR, PULIVILAKATHU VEEDU, KARODE DESOM 7. PARVATHI PILLAI KAMALAMMA PILLA ELABKAMAM VEEDU, CHOOZHAL DESOM KOLLAMKODE PAKUTHY 8. RAMAN PILLAI KRISHNAN NAIR PULIVILAKATHU VADAKKATHIL VEEDU KARODE DESOM OF KOLLAMKODU PAKUTHY 9. RAMAN PILLAI VASUDEVAN PILLAI PULIVILAKATHU VADAKKATHIL VEEDU KARODE DESOM OF KOLLAMKODE PAKUTHY 10. LEKSHMI PILLA PARUKKUTTI AMMA PULIVILAKATHU VADAKKATHIL VEEDU KARODE DESOM OF KOLLAMKODE PAKUTHY 11. NARAYANI PILLA PARUKUTTY AMMA PULAYAMYILA PUTHEN VEEDU KARODE DESOM, KOLLAMODE PAKUTHY 12. THANKAMMA PILLA AMBUJAKSHI AMMA THAKKATTU VILAKATHU MELEPUTHEN VEEDU KULATHOOR DESOM, KULATHOOR PAKUTHI 13. KUMARA PILLAI GOVINDA PILLAI THEKKE KADAVARAKKAL VEEDU KARODE DESOM 14. MADHAVI PILLA VISALAKSHMI AMMA THEKKEKADAVARAKKAL VEEDU KARODE DESOM 15. VASANTHA CALLED AS PARVATHI PILLA PARUKUTTY, PULIVILAKATHU VADAKKEVEEDU KARODE DESOM 16. JANAKI PILLA PANKAJAKSHI AMMA PULIVILAKATHU VADAKKEVEEDU, KARODE DESOM SA 827/00 -4- 17. NARAYAN PILLA BHASKARA PILLAI PULIVILAKATHU VADAKKEVEEDU, KARODE DESOM 18. SNEHAPPU NADATHI, PULAYANVILA VEEDU KARODE DESOM 19. KUNJAN NADAR KUTTI NADAR, KARODE DESOM 20. KUNJAN NADAR CHELLAPPAN NADAR PULAYAMVILA VEEDU KARODE DESOM 21. KUNJAN NADAR KAMALAM NADAR PULIVILAKATHU VADAKKE VEEDU, KARODE DESOM 22. ANNAMUTHU NADATHI KUBJELI NADATHI MUNDAKKARVILA VEEDU, KARODE DESOM 23. PACHANADAR THANKAN NADAR MUNDKKARVILA VEEDU, KARODE DESOM 24. PACHAN NADAR NESAMANI NADAR MUNDAKKARVILA VEEDU, KARODE DESOM 25. PACHAN NADAR SUKUMARAN NADAR MUNDAKKARVILA VEEDU, KARODE DESOM 26. PACHAN NADAR VARKKI NADAR MUNDAKKARVILA VEEDU, KARODE DESOM 27. NARAYANA PILLA RADHAKRISHNA PILLAI KADAMPATT VEEDU VEKKOL DESOM KULASEKHARAN VILLAGE, KALKKULAM TALUK HAVING DO - 28. NARAYANA PILLA KRISHNA PILLAI KACHERI VEEDU, KADAYALUMMODU KALIYAL DESOM, KALIYAL VILLAGE, KAVING ALSO PULAYANVILAKATHU VEEDU KARODU DESOM, KULATHOOR VILLAGE 29. PONNAMMA PILLA SAROJINI AMMA PULIVILAKATHU VADAKKEVETUVILAKATHU VEEDU KARODU DESOM, KULATHOOR VILLAGE 30. SAROJINI AMMA BINDU PULIVILAKATHU VADAKKEVETUVILAKATHU VEEDU KARODU DESOM, KULATHOOR VILLAGE SA 827/00 -5- 31. DIVAKARAN NAIR SATHEESAN NAIR PULIVILAKATHU VADAKKEVETUVILAKATHU VEEDU KARODU DESOM, KULATHOOR VILLAGE 32. DIVAKARAN NAIR RAVINDRAN NAIR PULIVILAKATHU VADAKKEVETUVILAKATHU VEEDU KARODU DESOM, KULATHOOR VILLAGE 33. DIVAKARAN NAIR GOPALAN NAIR PULIVILAKATHU VADAKKEVETUVILAKATHU VEEDU KARODU DESOM, KULATHOOR VILLAGE 34. THANKAMMA KAMALAM PULAYANVILA VEEDU, KARODU DESOM KULATHOOR VILLAGE 35. KUNJAN NADAR MANIYAN PULAYANVILA VEEDU, KARODU DESOM KULATHOOR VILLAGE 36. EASWARI PILLA CHELLAMMA PILLAI PULAYANVILA VEEDU, KARODU DESOM KULATHOOR VILLAGE 37. VELAYUDHAN PILLAI KRISHNAN NAIR THENGGUMTHOTTATHU VEEDU OF KARODU DESOM KULATHOOR VILLAGE 38. KUNJULEKSHMI PILLAI WIDOW OF LATE NARAYANA PILLAI AGED ABOUT 72 PULAYANVILA PUTHEN VEEDU OF DO- 39. KUNJULEKSHMI PILLAI SAROJINI AMMA AGED ABOUT 50 OF -DO- 40. KUNJULEKSHMI PILLAI GOMATHI AMMA AGED ABOUT 48 OF -DO- 41. KUNJULEKSHMI PILLAI SUMATHI AMMA AGED ABOUT 40 OF -DO- 42. KUNJULEKSHMI JAGADAMMA AGED ABOUT 35 OF -DO- 43. LEKSHMIKUTTY THANKAMMA AGED ABOUT 55 THOTTATHU VEEDU KARODE DESOM, KARODE VILLAGE SA 827/00 -6- 44. VELUKKUTTY PILLAI S/O.VELAYUDHAN PILLAI AGED ABOUT 35 OF -DO- 45. REVEENDRAN NAIR S/O.VELAYUDHAN PILLAI AGED ABOUT 26 OF DO- 46. SANTHAMMA D/O.THANKAMMA AGED ABOUT 23 OF -DO- 47. SURENDRAN NAIR S/O.VELAYUDHAN PILLAI AGED ABOUT 20 OF -DO- 48. VASUMATHI D/O.THANKAMMA AGED ABOUT 18 OF -DO- 49. AMMUKKUTTY AMMA BHARATHI AMMA AGED ABOUT 34, PULAYANVILAKATHU VEEDU KARODE DESOM KARODE VILLAGE ADV. SRI.G.S.REGHUNATH FOR R3 SRI.B.KRISHNA MANI FOR R5 TO 7 & 12 SRI.V.PREMCHAND FOR R5 TO 7 & 12 SRI.N.MAHESH FOR R5 TO 7 & 12 SMT.ASHA JYOTHI FOR R5 TO 7 & 12 SRI.N.RAMACHANDRAN NAIR(VARINJAM) FOR R13&14 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.827 of 2000-F ------------------------------------- Dated this the 20th day of July 2011 Judgment Defendants 6 to 11, additional defendants 52 and 53 and also the legal heirs of defendants 4 and 5 in OS No.155/83 before the Munsiff's Court, Neyyattinkara, are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. It is unnecessary to go into the details of the case for the simple reason that this appeal can be disposed of on a very short ground. 2. The plaintiffs laid the suit for partition on the basis of Ext.A1 partition deed of the year 1104 ME. They traced their title to the said document and ultimately, they claim partition of plaint B schedule property and for a declaration that the decree in OS No.114/1974 will not bind the plaintiffs. 3. It appears that defendants 1 and 2 did not contest the suit. The other defendants supported the SA 827/00-F 2 plaintiffs. 4. The trial court on the basis of the finding that the predecessor-in-interest of the plaintiffs had only a mortgage right, dismissed the suit. 5. The plaintiffs carried the matter in appeal as AS No.686/94 before the Sub Court, Neyyattinkara. It appears that at the time of argument of the appeal, there was an understanding between the parties on the basis of which a preliminary decree was passed. It is seen from a reading of the appellate court judgment that at the time of hearing, the learned counsel appearing for the appellants did not press the relief against the preliminary decree and the final decree was passed in OS No.114/74 ordering that the allotments in favour of the 2nd plaintiff and the 23rd defendant shall be made without disturbing the allotment of property in favour of defendants 1 and 2. The lower appellate court also held that since there was no representation on behalf of the other defendants and no argument was advanced in order to justify their claim in SA 827/00-F 3 respect of their shares in plaint A schedule property, those defendants are not entitled to any share. On that basis, a preliminary decree was passed as follows : “In the result, this appeal is allowed in part and the judgment and decree in OS No.155/83 of the 1st Additional Munsiff, Neyyattinkara are hereby set aside. A preliminary decree for partition was passed in the following terms : 1. Appellant (additional 2nd plaintiff) shall be eligible to get a decree for partition and for allotment of plaint B schedule property as his share in plaint A schedule property. 2. The 23rd defendant shall be eligible to get 16 cents of land from plaint A schedule property. 3. Additional 2nd plaintiff or the 23rd defendant shall be eligible to apply for passing of a final decree in terms of the preliminary decree. 4. However, it is made clear that the allotments in favour of the additional 2nd plaintiff and the 23rd defendant shall be made without disturbing the allotment of property in favour of the 1st and 2nd defendants by SA 827/00-F 4 virtue of the final decree in OS No.114/74. In other words, at the time of allotment of properties in the final decree proceedings plot NOFGHIS marked in the plan attached to Exhibit A13 which is the final decree in OS No.114/74 shall be specifically excluded.” 6. Assailing the decree passed by the lower appellate court, the aggrieved defendants 6 to 11, additional defendants 52 and 53 and also the legal heirs of defendants 4 and 5 have filed this appeal. Notice is seen issued on the following questions of law raised in the second appeal : 1.Whether Order XLI Rule 4 of CPC imposes an obligation on appellate court to vary reverse the decree in favour of all parties relying on common grounds without excluding any party when the common grounds relied on are found acceptable. 2. Whether the refusal of reversal or variance of decree to parties who stood in the same footing as that of the parties in whose favour the decree reversed or varied SA 827/00-F 5 would result in manifest injustice and gross miscarriage of justice. 3.Whether the refusal to grant reliefs to the parties in an appeal on the ground that the counsel engaged on their behalf failed to represent, would result in manifest injustice and gross miscarriage of justice. 7. The learned counsel for the appellants pointed out that if the plaintiffs are entitled to share, so also the appellants. The lower appellate court was not justified in declining reliefs to the appellants on the ground that there was no representation on their behalf before the lower appellate court. The learned counsel pointed out that by virtue of Ext.A1 partition deed, the appellants are also entitled to a share in the property and the defendants are bound to return the share due to the appellants. 8. In the facts and circumstances of the case, it is felt that the shares due to the appellants will have necessarily to be determined. Accordingly, the appeal is partly allowed and the matter is remanded to the lower SA 827/00-F 6 appellate court for the purpose of determining the shares due to the appellants also. The determination of shares due to the appellants shall be in such a manner so as not to disturb the properties allotted by virtue of the trial court decree in OS No.114/74. It is made clear that the matter is remanded only for this limited purpose. The parties shall appear before the lower appellate court on 04.08.2011. Notice will be taken by the counsel appearing on behalf of the respective parties when the matter is taken up by the lower appellate court. The lower appellate court shall dispose of the matter as expeditiously as possible, at any rate, within three months from the date of appearance of the parties before court. P.Bhavadasan, Judge sta SA 827/00-F 7 SA 827/00-F 8