IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 RSA.No. 760 of 2006() --------------------- AS.42/1999 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.307/1994 of II ADDL.M.C.,TRIVANDRUM .................... APPELLANTS/RESPONDENTS/DEFENDANTS ------------------------------------------------------ 1. P.SARASWATHY, D/O. PACHI, INDIRAVILASOM MELE PUTHEN VEEDU, KATTAYIKONAM, AYIROORPPARA VILLAGE, THIRUVANANTHAPURAM. 2. APPUKUTTAN, INDIRAVILASOM MELE PUTHEN VEEDU, KATTAYIKONAM, AYIROORPPARA VILLAGE, THIRUVANANTHAPURAM. 3. A.SUDHAKARAN, S/O. APPUKUTTAN, INDIRAVILASOM MELE PUTHEN VEEDU, KATTAYIKONAM, AYIROORPPARA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENT(S): APPELLANTS/PLAINTIFFS ------------------------------------- 1. K.SARASWATHY AMMA (DIED), HARIVILASOM, VAMANAPURAM. 2. S.RADHAMONY AMMA, D/O. SARASWATHY AMMA, HARIVILASOM, VAMANAPURAM. 3. S.THANKAMONY AMMA, D/O. SARASWATHY AMMA, RAJI BHAVAN, ATTINGAL. -:2:- 4. R.INDIRA DEVI AMMA, D/O. RADHAMONY AMMA, HARIVILASOM, VAMANAPURAM VILLAGE. 5. G.JAYAKUMAR, S/O. GANGADHARAN NAIR, HARIVILASOM, VAMANAPURAM VILLAGE. 6. R.SANTHAKUMARI AMMA, D/O. RADHAMONY AMMA, HARIVILASOM, VAMANAPURAM VILLAGE. 7. G.HARIKUMAR, HARIVILASOM, VAMANAPURAM VILLAGE. 8. R.KUMARY LILLY @ BEENAKUMARI, HARIVILASOM, VAMANAPURAM. 9. T.BEENAKUMARI, D/O. THANKAMONY, RAJI BHAVAN, ATTINGAL. 10. S.KAMALAVATHY, D/O. SARASWATHY AMMA, EDAVILAKATHU VEEDU, MEETHUR, KALLARA. 11. S.SYAMALAKUMARI AMMA, D/O. SARASWATHY AMMA, HARIVILASOM, VAMANAPURAM. 12. P.SUKUMARAN NAIR, S/O. PURUSHOTHAMAN NAIR, HARIVILASOM, VAMANAPURAM. 13. P.MURALEEDHARAN NAIR, S/O. PURUSHOTHAMAN NAIR, HARIVILASOM, VAMANAPURAM. 14. SOBHANA KUMARI, S/O. SARASWATHY AMMA, HARIVILASOM, VAMANAPURAM. 15. S.LATHAKUMARI, HARIVILASOM, VAMANAPURAM. 16. T.VALSALAKUMARI, D/O. THANKAMONY, RAJI BHAVAN, ATTINGAL. 17. P.PREMAKUMARI, RAJI BHAVAN, ATTINGAL. 18. T.SHEELA, RAJI BHAVAN, ATTINGAL. -:3:- 19. C.ANILKUMAR, S/O. CHELLAPPAN PILLAI, HARIVILASOM, VAMANAPURAM. 20. S.ANITHA, D/O. SYAMALAKUMARI, HARIVILASOM, VAMANAPURAM. 21. ANIL KUMAR, S/O. MANIYAN PILLAI, EDAVILAKATHU VEEDU, MEETHUR, KALLARA. 22. SUNIL KUMAR, S/O. MANIYAN PILLAI, EDAVILAKATHU VEEDU, MEETHUR, KALLARA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 760 of 2006 * * * * * * * * * * * * * * * * * * Dated: 30th January, 2009 JUDGMENT Defendants 1 to 3 in O.S. No. 307 of 1994 on the file of the II Addl. Munsiff's Court, Thiruvananthapuram are the appellants in this Second Appeal. The said suit instituted by respondents 1 to 10 herein was one for a perpetual injunction restraining defendants 1 to 3 from trespassing upon the plaint schedule property admeasuring 4 ½ cents. 2. The plaintiff contended that the plaint schedule property was a portion of a larger extent settled in favour of the plaintiff and defendants 4 to 16 as per Ext.A1 settlement deed. 3. The suit was resisted by the appellants contending inter alia that pending suit the plaintiffs had sold the plaint schedule property to strangers who were in possession of the same and that the suit was bad for non-joinder of the stranger assignees. R.S.A. NO. 760 of 2008 -:2:- 4. As per judgment and decree dated 24-10-1998 the learned Munsiff accepted the defence contentions and dismissed the suit. On appeal preferred by the plaintiff as A.S. No. 42 of 1999 before the District Court, Thiruvananthapuram, the lower appellate court has reversed the decree passed by the trial court and granted a decree as prayed for. Hence, this Second Appeal. 5. The following are the questions of law formulated in the memorandum of Second Appeal:- i) Has not the first appellate court committed an error of jurisdiction in relying on an ex-parte commission report and plan and that too without examining the commissioner at the appellate stage ? ii) Is not the Appellate court wrong in entering new findings without appreciating the pleading and evidence on record ? iii) Is it open to a plaintiff to proceed with the suit for the benefit of an assignee pendente lite and that too without any reservation of any right and possession over the property and the right to continue the suit ? iv) Is the right to maintain a suit on behalf of co-owners is available in the case of strength assignees pendente lite ? v) Has the law laid down in 1987 (1) KLT and 2005 (1) KLT 127 rightly understood by the Appellate Court ? vi) Has not the Appellate Court committed error of law in R.S.A. NO. 760 of 2008 -:3:- relying on a photocopy of a document ? 7) Can a report and plan which is perverse against the evidence available in the case be admitted and acted upon the sole ground that no objection has been filed by the parties ? 6. The learned counsel appearing for the appellants re-iterated before me the contentions of defendants 1 to 3. 7. I do not find any good ground for interference with the judgment passed by the lower appellate court. An extent of 21 cents of land including the plaint schedule property was settled in favour of the plaintiffs and defendants 4 to 16 as per Ext.A1 settlement deed dated 18-9-1969. From the said extent an area of 16 ½ cents was compulsorily acquired by the State and what remained with the co-owners was 4.5 cents which is the plaint schedule property. The appellants who are the contesting defendants did not lay any claim over the plaint schedule property. They had no contention that they have title or possession over the plaint schedule property. Their only contention was that during the pendency of the suit the plaintiffs and the other co-owners had sold the plaint R.S.A. NO. 760 of 2008 -:4:- schedule property to strangers and that without impleading the stranger alinees no effective decree could be granted in the suit. This contention which found favour with the trial court was not accepted by the lower appellate court and according to me, rightly. There is no dispute that as on the date of institution of the suit in the year 1994, the plaintiffs and the other co-owners were in possession of the plaint schedule property. The assignment of the property by the co- owners during the pendency of the suit will be hit by lis pendens. The stranger/assignees cannot claim to be impleaded in the suit as of right, particularly, when they have full faith in their assignors in bringing the litigation to a logical conclusion. That an assignee pendente lite cannot claim impleadment as of right a position which is well settled. (See Cherukutty v. Velappu - 1987 (1) KLT 565, Bhaskaran v. Vijayaraghavan and Others - 2005 (1) KLJ 127). It is equally well settled that the rights of the parties have to be decided with reference to the date of commencement of the lis R.S.A. NO. 760 of 2008 -:5:- namely date of institution of the suit. Eventhough the co- owners had transferred the plaint schedule property to strangers during the pendency of the suit as on the date of institution of the suit the plaintiffs and the other co-owners, namely defendants 4 to 16 were in possession of the plaint schedule property. Hence, the lower appellate court was fully justified in granting a decree to the plaintiff. No question of law much less any substantial question of law arises for consideration in this appeal. The substantial 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 30th January 2009. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani.