IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 RSA.No. 192 of 2010() --------------------- AS.1/2008 of PRINCIPAL SUB COURT,ERNAKULAM OS.53/2002 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------- P.J.SKARIA, S/O.ULAHANNAN, AGED 49 YEARS, PATTUPALATHADATHIL HOUSE, PIRAMADOM KARA, ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S)/RESPONDENTS/DEFENDANTS ------------------------- 1. GEORGE, S/O.ULAHANNAN, AGED ABOUT 58 YEARS, SANTHOSH BHAVAN, PAMBAKKUDA P.O., MEMMURY KARA, MEMMURY VILLAGE, MUVATTUPUZHA TALUK. 2. JOHNY V.KANDANPARAMBIL, AGED ABOUT 56 YEARS, VIJAI BHAVAN, KOLENCHERRY P.O., KOLENCHERRY, KANOOR. ADV. SHRI K.RAMACHANDRAN FOR R1 (CAVEATOR) SHRI S.SREEDEV FOR R1 (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.192 of 2010 -------------------------------------- Dated this the 2nd day of March, 2010. JUDGMENT Heard. Admitted. Respondents appear through Advocate Shri K.Ramachandran. 2. Following substantial questions of law are framed for a decision: i. When a suit is filed for partition and cancellation of Ext.A1 document which is pending consideration in a different proceedings have not the court belows gone wrong in deciding the validity and nature of the document which is not question to be decided in the present suit? ii. Have not the courts below gone wrong in considering the argument of the appellant that the claim put forward by the defendant under Ext.B1 is hit by Section 65 of the Limitation Act? iii. Have not the courts below gone wrong in accepting Ext.B1 and interpreting the document against the recitals therein in respect of the leasehold right and possession while taking that document towards the claim to establish the right of the defendants? RSA No.192/2010 2 3. The dispute concerned 73.5 cents as described in the plaint schedule over which the appellant/plaintiff claimed title and possession as per Ext.A1, settlement deed dated 20.8.2001 executed by his father. Respondent No.1 is his brother and respondent No.2 is the brother-in-law of appellant and respondent No.1. Appellant laid the suit alleging that respondents tried to trespass into the suit property. Respondents contended that appellant has no exclusive possession of the suit property and that Ext.A1, assignment deed relied on by the appellant is fraudulently created. They claimed that 38.5 cents out of the suit property and other items belonged to the mother of appellant and respondent No.1 as per Ext.B1, sale deed dated 25.7.1955 and on her dying intestate on 19.9.1997 the said property devolved on appellant and respondent No.1. Appellant is only a co-owner of the suit property and cannot have any exclusive right or possession of the same. It is the contention of respondents that they have filed O.S.No.120 of 2002 for cancellation of Ext.A1, assignment deed and for a decree for partition. Trial court found that appellant has no exclusive right or possession of the suit property and dismissed the same. First appellate court has confirmed that finding and hence the Second Appeal on the substantial questions which I have framed above. It is contended by learned counsel for appellant that courts below have not given a proper interpretation of the documents while holding that appellant is only a co-owner of the suit property. According to the learned counsel, exclusive right of the appellant and his predecessor-in-interest is acknowledged by the predecessor-in-interest of RSA No.192/2010 3 respondent No.1 even in Ext.B1, sale deed relied on by him. It is the contention of the learned counsel that at any rate, the suit ought to have been tried along with O.S.No.120 of 2002 which is still pending trial in the court of learned Munsiff. Learned counsel for respondent Nos.1 and 2 in response contend that the present situation was brought about by the conduct of appellant himself in that when respondents wanted a joint trial of the present suit with O.S.No.120 of 2002 that was objected by the appellant who, instead wanted a stay of trial of O.S.No.120 of 2002 and for that purpose filed an application under Section 10 of the Code of Civil Procedure (for short, “the Code”) and got a favourable order. It is therefore not open to the appellant to now turn round and contend that the present suit ought to have been tried along with O.S.No.120 of 2002. It is contended by learned counsel that so far as exclusive right claimed by the appellant and his predecessor-in-interest is concerned, there is no mention of deliveration of title in Ext.A1, the document relied on by the appellant and hence merely on account of a recital in Ext.B1 it cannot be said that appellant has exclusive right over the suit property. Learned counsel would contend that the said recital would not in any way bind respondent No.1 or his predecessor-in- interest. 4. I have not called for records of the case since it is agreed by counsel on both sides that the Second Appeal could be disposed of in the line I have proposed without calling for the records, considering the nature of RSA No.192/2010 4 documents relied on by the parties. Ext.A1 is the assignment deed dated 20.8.2001 on which reliance is placed by the appellant to claim exclusive title and possession of the suit property. In Ext.A1, his assignor (his father Ulahannan) does not trace his title to any document or oral lease but only states that he has been in possession and enjoyment of the suit property since long and the property was included in his name in the thandaper account. In the plaint also there is no statement that appellant's predecessor-in-interest was a lessee of the property and accordingly in possession of the same. 5. It is not disputed that the suit property originally belonged to Ittan Sara. Ittan Sara executed Ext.B1, mortgage deed dated 18.01.1954 in favour of Thomas and later assigned her right in the suit property in favour of her grand daughter, Mary allegedly as per Ext.B3, settlement deed dated 11.3.1954. While so, Thomas, the mortgagee under Ext.B2 got assignment of jenm right from Mary as per Ext.B4, dated 27.5.1955 and the said Thomas is said to have assigned his right in favour of the mother of appellant and respondent No.1 as per Ext.B1, sale deed dated 25.7.1955. Thus according to the respondents, mother of appellant and respondent No.1 got absolute right over the suit property and on her death it devolved on her legal heirs who included appellant and respondent No.1. 6. Trial court dismissed the suit holding that appellant is only a co- owner of the suit property obviously accepting the contention of respondents. It RSA No.192/2010 5 is true that in the plaint or in Ext.A1 it is not stated how appellant's father, Ulahannan derived title over the suit property but there is a reference in Ext.B1, sale deed executed by Thomas in favour of mother of appellant and respondent No.1 on 27.5.1955 that the property referred therein was outstanding on oral lease with Ulahannan, father of appellant and respondent No.1. Appellant has an argument that it would appear from the documents produced by the respondents that what was acquired by the mother was only jenm right over the property while the property stood with Ulahannan as per the (alleged) oral lease referred to in Ext.B1. It is contended that this aspect of the matter was not considered by the courts below and instead, Ext.A1 was ignored for the reason that it does not mention deliveration of title or the alleged oral lease. In O.S.No.12 of 2002 filed by respondent No.1 and others there is also a prayer for cancellation of Ext.A1. Considering the fact that O.S.No.120 of 2002 wherein cancellation of Ext.A1 and partition of the suit property are sought for is pending and in the nature of the respective recitals in the documents relied on by the parties, the controversy can be settled finally only if both suits are tried and disposed of jointly. Otherwise there is possibility of divergent decisions being entered into. The court has also to decide, even if Ext.B1 and the documents relied on by the respondents are accepted, what exactly is the right that the parties have acquired as per the respective documents and what would be the consequences on the claim of possession made by the contesting parties. In these circumstances notwithstanding that failure to conduct joint trial of the suit RSA No.192/2010 6 was brought about by the conduct, if any of the appellant himself I am inclined to think that for a proper and final adjudication of all the disputes between the parties the suits have to be tried and disposed of jointly. As such leaving the contentious issues open I am persuaded to set aside the judgment and decree of the courts below and remand the case to the trial court where O.S.No.120 of 2002 is pending. I am told that on account of the order of stay passed under Section 10 of the Code, trial of that case has not so far commenced. In the facts and circumstances of the case learned Munsiff shall vacate the stay order passed under Section 10 of the Code in that case and try this case and O.S.No.120 of 2002 jointly. I make it clear that it will be open to the parties to adduce further evidence if they are so advised. 7. There is a controversy between the parties as to who is in possession of the suit property. Learned counsel for appellant would contend that there was an order of temporary injunction in favour of appellant which was confirmed by the first appellate court in Civil Miscellaneous Appeal and thus the order of injunction remained in force until the disposal of the suit by the trial court. Learned counsel for respondents would submit that the order of injunction was not passed on merit and instead, an order of status quo passed by the trial court on consent of the parties. I am not entering into that controversy at this stage. I make it clear that it will be open to the trial court to pass appropriate orders in the matter including appointment of any one of the parties as party receiver on such terms and conditions as the trial court may fix if such a course RSA No.192/2010 7 is found appropriate and suitable. Resultantly, this appeal is allowed by way of remand. Judgment and decree of the courts below are set aside and the case is remitted to court of learned Munsiff, Muvattupuzha for joint trial and disposal along with O.S.No.120 of 2002. Learned Munsiff shall vacate the stay of trial ordered in O.S.No.120 of 2002 and pass a formal order of joint trial of the two cases. Parties shall appear in the trial court on 30.3.2010. I.A.No.472 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks