IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 RSA.No. 625 of 2008() --------------------- AS.304/2004 of D.C. & SESSIONS COURT,KOZHIKODE OS.306/1995 of ADDL.M.C.,KOZHIKODE-II .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 3 & 7:- ---------------------------------------------------------- 1. VELLARIKKAL KOYAKUTTY @ BHAVA AGED 80 YEARS, S/O. AHAMMED KOYA VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK 2. K.MOIDEENKUTTY AGED 38 YEARS, S/O. MOTHIKUTTY ANTHIYOORKUNNU AMSOM, VELIYAMPARAMBA DESOM ERNAD TALUK, BY POWER OF ATTORNEY HOLDER K.ASSAN AGED 59 YEARS, S/O.LATE MAMU, KOORANAKANDY HOUSE PULIKKAL AMSOM, MUTTAYOOR DESOM OF ERNAD TALUK 3. MUHAMMEDKUTTY, AGED 55 YEARS, S/O.PARAYIL ALI, CHERUKAVU AMSOM, CHEVAYUR DESOM OF ERNAD TALUK.BY POWER OF ATTORNEY HOLDER K.ASSAN AGED 59 YEARS, S/O.LATE MAMU, KOORANAKANDY HOUSE PULIKKAL AMSOM, MUTTAYOOR DESOM OF ERNAD TALUK. 4. KOMUTTY, AGED 62 YEARS , S/O.LATE YOOSAF KUNDALAKADAN, CHERUKAVU AMSOM, CHEVAYOOR DESOM OF ERNAD TALUK. BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENTS/RESPONDENTS/PLAINTIFFS:- -------------------------------------------------- 1. MELATH KUNHAMMED, AGED 61 YEARS, S/O.BAVA, CHERUKAVU AMSOM, PANGOD DESOM OF ERNAD TALUK. R.S.A. No. 625/2008 : 2 : 2. KUTTAMVELIKKATH VIJAYAN,AGED 50 YEARS S/O.KRISHNAN NAMBIAR, KUNNUMMAL AMSOM DESOM OF VATAKARA TALUK. 3. PAZHANAKUZHIYIL BALAN, 50 YEARS S/O. KUNHIRAMAN, THIRUVALLOR AMSOM VELLOOKARA DESOM OF VATAKARA TALUK. 4. VARKKATHANATH MOHANAN NAIR AGED 49 YEARS, S/O.,GOPALAN NAIR MANAKKAD AMSOM DESOM OF THODUPUZHA TALUK 5. EDAYILLUM KRISHNAN NAIR, AGED 49 YEARS, S/O. MUTHU NAIR, KOLATHUR AMSOM, DESOM OF KASARGODE TALUK. 6. VILLANPLAKKAL THOMAS, AGED 51 YEARS, S/O. V.J. SAMUALE, KOOVAPPALLY AMSOM, DESOM OF THODUPUZHA TALUK. 7. MEEMBIDI THEKKEDATH SAIPRAKASH, AGED 48 YEARS, S/O. GOVINDAN NAMBEESHAN, AMARAMBALAM AMSOM, DESOM OF NILAMBUR TALUK. 8. BICHIVI, AGED 55 YEARS, W/O. MUSTHAFA KAMAL, CHERUKAVU AMSOM DESOM OF ERNAD TALUK. 9. KOTTATHODI FATHIMA, AGED 45 YEARS, D/O. MELATH KUNHIMMED, CHERUKAVU AMSOM, PANGOD DESOM OF ERNAD TALUK. 10. P. N. PREMKUMAR, AGED 55 YEARS, S/O. NARAYANAN NAIR, KOZHIKODE AIR PORT QUARTERS, KARIPUR AMSOM DESOM OF ERNAD TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 625 of 2008 ========================= Dated this the 12th day of January, 2009. JUDGMENT Defendants 1 to 3 and 7 in O.S. No. 306 of 1995 on the file of the Court of Additional Munsiff - II, Kozhikode are the appellants in this Second Appeal. The said suit was one for a perpetual injunction restraining the defendants from trespassing into the plaint schedule property admeasuring 2.42 acres of land. 2. The trial court decreed the suit and the lower appellate court on appeal preferred by the appellants, has confirmed the decree. Hence this Second Appeal. The following are the questions of law formulated in the memorandum of Second Appeal:- a. Without the production of the Will under which the plaintiff admittedly claims title can it be held that the plaintiff has discharged the burden of proof on pleadings thus disentitling him for a decree? b. Is it not settled law that a finding under Order 22 Rule 5 CPC as to who the legal representatives are in a proceedings pertains only to that proceedings alone and for that reason can it be said that the mere impleadment of the plaintiff as a legal representative of his mother on the strength of this alleged Will Exhibit-A7 and A8 proceedings will be a final adjudication with the respect to the genuineness of the Will and its bequest? R.S.A. No. 625/2008 : 2: c. The alleged Will having never been adjudicated upon or proved in any Civil Court or Tribunal in terms of the requirements of Section 63 of the Succession Act and Section 68 of the Evidence Act can it be held that the genuineness of the Will was substantially in issue in a previous proceedings Exhibit-A7 and A8 so as to attract the bar of resjudicata in this suit? d. Whether therefore the dismissal of I.A. 1651/07 in A.S. 304/2004 seeking to summon the alleged Will 3/71 of SRO Feroke from the Sub Registrar Feroke is justified? 3. I heard the learned counsel appearing for the appellants. 4. The following are the facts concurrently found by the court below:- The plaint schedule property belonged to Kizhakke Kovilakam in Jenmam. As per a registered kanam charth of the year 1920, one Chinnukutty Amma was in possession of the property. Her rights were subsequently assigned to the mother of the plaintiff. The grandfather of the 1st defendant was a tenant under the plaintiff's mother. O.S. No. 270 of 1958 on the file of the Munsiff's Court, Parappanangadi was a suit filed by the plaintiff's mother claiming recovery of arrears of rent. The said suit was decreed and the plaint schedule property was sold in execution of the said decree. The property was taken delivery of by the plaintiff on behalf of his mother. Even though the 1st defendant's grandfather who was R.S.A. No. 625/2008 : 3: the sub tenant under the plaintiff's mother, filed Ext.A3 application for re-delivery, the same was dismissed on 09.09.1960. The 1st defendant's grandfather then assigned the property to the 1st defendant in the year 1967. O.S. No. 203 of 1965 was filed by the 1st defendant against the plaintiff's mother originally for a perpetual injunction and it was subsequently amended as one for recovery of possession. The said suit was dismissed and the dismissal was confirmed in appeal and Second Appeal. Subsequently, the 1st defendant filed another suit as O.S. No. 18 of 1968 before the Munsiff's Court, Parappanangadi seeking similar reliefs. That suit was also dismissed and confirmed in appeal. The 1st defendant had filed an application under Section 72(C) of the Kerala Land Reforms Act before the competent Land Tribunal seeking assignment of the right, title and the interest in respect of the plaint schedule property. The said application was dismissed by the Land Tribunal as per Ext.A7 and confirmed in appeal as evidenced by Ext.A8 appellate judgment. The plaintiff's application with regard to the same property was allowed by the Land Tribunal as per Ext.A10 order which has been R.S.A. No. 625/2008 : 4: confirmed as per Ext.A11 judgment of the appellate authority. Thus, the present suit filed by the plaintiff was rightly decreed and the contentions of the appellants were rightly rejected by the courts below. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 12th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 625/2008 : 5: