IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 FAO.No. 106 of 2005() --------------------- I.A.371/2004 IN A.S.20/1995 OF SUB JUDGE, TIRUR APPELLANT/SUPPLEMENTAL APPELLANTS 2 TO 4: ----------------------------------------------------- 1. KONAKKADA MANATTAYIL PADMANABHAN, S/O.KONAKKADA MANTTAYIL KANDANKUTTY, AGED 66 YEARS, CHELEMBRA AMSOM AND DESOM, ERNAD TALUK. 2. KONAKKADA MANATTAYIL SEKHARAN, S/O.KONAKKADA MANTTAYIL KANDANKUTTY, AGED 57 YEARS, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK. 3. KONAKKADA MANATTAYIL SIVADASAN, S/O.KONAKKAA MANTTAYIL KANDANKUTTY, AGED 53 YEARS, CHELEMBRA AMSOM AND DESOM, ERNAD TALUK. 4. KONAKKADA MANATTAYIL BALACHANDRAN, S/O.KONAKKADA MANTTAYIL KANDANKUTTY, AGED 49 YEARS, CHELEMBRA AMSOM AND DESOM, ERNAD TALUK. BY ADV. MR. E.NARAYANAN RESPONDENTS: RESPONDENTS/DEFENDANTS: -------------------------------------------------- 1. KONAKKADA MANATTAYIL APPUTTI, CHELEMBRA AMSOM AND DESOM, CHELEMBRA TALUK. 2. KONAKKADA MANATTAYIL MALUKUTTY, W/O.KOLLAMBALATH CHATHUKKUTTY, CHERUVANNOOR AMSOM AND DESOM, KOLATHARA P.O. 3. KONAKADA MANATTAYIL VASU, CHELEMBRA AMSOM AND DESOM, CHELEMBRA P.O. (....2/-) FAO.106/05 (2) 4. KONAKADA MANATTAYIL RAGHAVAN, CHELEMBRA AMSOM AND DESOM, CHELEMBRA P.O. 5. KONAKADA MANATTAYIL SAROJINI, CHELEMBRA AMSOM AND DESOM, CHELEMBRA P.O. 6. KONAKKADA MANATTAYIL LAKSHMI, W/O.K.K.GOPALAN, OLAVANNA AMSOM AND DESOM, PERUMANNA P.O., KOZHIKODE TALUK. 7. KONAKKADA MANATTAYIL SREEDHARAN, CHELEMBRA AMSOM AND DESOM, CHELEMBRA P.O. 8. KONAKADA MANATTAYIL JAYARAJAN, CHELEMBRA AMSOM AND DESOM, CHELEMBRA P.O. 9. KONAKADA MANATTAYIL SUMATHI, W/O.PILAKKAT DASAN, MANNOOR AMSOM AND DESOM, MUKKATH KLADAVU P.O., KOZHIKODE TALUK. 10. KONAKADA MANATTAYIL LEELA, VAZHAYOOR AMSOM AND DESOM, KARAKKAD PARAMBA P.O., ERNAD TALUK. 11. KUTTAN, S/O.BAPPUTTY @ APPUTTY, CHELEMBRA AMSOM AND DESOM, CHELEMBRA P.O., ERNAD TALUK. 12. APPUTTY, S/O.PERAVANKUTTY, CHELEMBRA AMSOM AND DESOM, ERNAD TALUK. 13. KUTTAN, CHELEMBRA AMSOM AND DESOM, ERNAD TALUK, S/O.CHAYICHAN, MURIKKATT(H). 14. APPAU, CHELEMBRA AMSOM AND DESOM, ERNAD TALUK, S/I.CHAYICHAN, MURIKKATT (H). 15. SAROJINI, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK. 16. DEVAKI, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK, W/O.PONNATTIL APPUKUTTAN, KUTTOOLANGADI, FAROOK COLLEGE P.O. 17. KONGADA MANTTAYIL CHIRUTHA, W/O.DECEASED CHAYICHA, CHELEMBRA AMSOM AND DESOM, ERNAD TALUK. (IT IS RECORDED THAT 17TH RESPONDENT DIED AND NO SEPARATE STEP IS NECESSARY TO IMPLEAD HER LEGAL HEIRS AT THE RISK OF APPELLANT VIDE ORDER DTD.22.2.07 ON I.A.624/07) (...3/-) FAO.106/05 (3) 18. KONGADA MANATTAYIL KELUKUTTY, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK. (*DIED. LRs IMPLEADED.) 19. K.M.CHOYUNNI, S/O.KONKADA MANATTAYIL PERAVANKUTTY, NAMBEENAYIL VEEDU, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK. (IT IS RECORDED THAT 19TH RESPONDENT DIED AND NO SEPARATE STEP IS NECESSARY TO IMPLEAD HIS LEGAL HEIRS, AT THE RISK OF APPELLANT VIDE ORDER DTD.22.2.07 ON I.A.626/07) 20. K.M.DAMODHARAN, S/O.KONKADA MANTTAYIL PERAVANKUTTY, CHELEMBRA AMSOM AND DESOM, ERNAD TALUK. 21. K.M.ACHUTHAN, S/O.RAVUNNI, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK. 22. K.M.MADHAVI, W/O.PUZHAKKAL ANDI, KADALUNDI AMSOM AND DESOM, KADALUNDI P.O., CALICUT. 23. K.M.AMMUNNI, W/O.ANDISSERI SANKARAN, KUMMIL VEEDU, MANNOOR AMSOM AND DESOM, KADALUNDI P.O., CALICUT. 24. RAMANI, W/O.BALAKRISHNAN, PARAKKATTU HOUSE, CHELEMBRA P.O., CHELEMBRA AMSOM AND DESOM, ERANAD TALUK. 25. K.M.KARTHIAYANI, W/O.T.K.KARUNAN, THIYYASKANDI HOUSE, PANGAT AMSOM AND DESOM, P.O.PANGHAT, BALUSSERY VIA. 26. K.M.SAROJINI, NEAR KRISHNA U.P.SCHOOL, D/O.UNNEERI, MANNOOR AMSOM AND DESOM, P.O.MANNUR. 27. K.M.KOMALAM, W/O.KUTTIMON, NEAR SREEDEVI A.U.P.SCHOOL, KADALUNDI AMSOM AND DESOM, KADALUNDI P.O. 28. K.M.PUSHPAVALLY, W/O.V.RAVEENDRAN, CHOWANNOOR AMSOM AND DESOM, KOLATHARA P.O., CALICUT. 29. K.M.SUKUMARAN, KUZHUPPAKKATTU HOSUE, CHELEMBRA AMSOM AND DESOM. (....4/-) FAO.106/05 (4) 30. KUZHUPPAKKATTU AMMUNNI, W/O.APPUTTY, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK. (IT IS RECORDED THAT 30TH RESPONDENT DIED AND NO SEPARATE STEP IS NECESSARY TO IMPLEAD HER LEGAL HEIRS, VIDE ORDER DTD.22.2.07 ON I.A.625/07) 31. K.M.VELAYUDHAN, S/O.APPUTTY, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK. 32. K.M.SAVITHRI, W/O.PANAYANKAL GOPALAN, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK. 33. K.M.KOUSALYA, NEAR SREEDEVI U.P.SCHOOL, KADALUNDY AMSOM AND DESOM, W/O.LATE KONNAMKUZHI CHAKKAPPAN. 34. K.M.YASODA, W/O.RAJAN, KUKKATTUKADAVU, KADALUNDY AMSOM. 35. K.M.CHANDRAN, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK, S/O.LATE APPUTTY, KUZHITHEKKAT CHAKKINGAL (H). 36. K.M.SURENDRAN, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK, S/O.LATE APPUTTY, KUZHITHEKKAT CHAKKINGAL (H). 37. K.M.SHOBHANA, W/O.MANOHARAN, KUZHIPPAKKATHU VEEDU, CHELEMBRA AMSOM AND DESOM. 38. CHINNAMMALU, W/O.CHINAPPAN, CHELEMBRA AMSOM AND DESOM, ERNAD TALUK. 39. SHEEJA, D/O.CHINNAPPAN, CHELEMEBRA AMSOM AND DESOM, ERNAD TALUK. 40. DEVAKI, W/O.K.M.NARAYANAN, MURIKKATTU HOSUE, CHELMBRA AMSOM AND DESOM, ERNAD TALUK, 41. SHEEJA, D/O.K.M.NARAYANAN, MURIKKATTU HOUSE, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK. 42. BABU, MURIKKATTU HOUSE, CHELEMBRA AMSOM AND DESOM, ERANAD TALUK. 43. K.M.KAMALA, W/O.CHOYUNNI, NAMBEERIYIL HOUSE, CHELEMEBRA AMSOM AND DESOM (....5/-) FAO.106/05 (5) 44. K.N.ANAND, S/O.CHOYUNNI, NAMABEERIYIL HOUSE, CHELEMBRA AMSOM AND DESOM. 45. K.N.SUSHAMA RANI, W/O.MOHANAN, KUZHIPPAKKAT HOUSE, CHELEMBRA AMSOM AND DESOM. 46. K.N.BEENA RANI, S/O.PUZHAKKAL MANOJ, KARUMARAKKAD, ARIYALLUR AMSOM AND DESOM. *SUPPLEMENTAL RESPONDENTS: 47. KONGADA MURIKKATTU JANU ALIAS SAROJINI, AGED 75 YEARS, W/O. DECEASED KELUKUTTY, MURIKKATTU HOUSE, CHELEMBRA AMSOM DESOM, MALAPPURAM DISTRICT. 48. K.M. SUBRAMANIAN, AGED 52 YEARS, S/O. DECEASED KELUKUTTY, MURIKKATTU HOUSE, CHELEMBRA AMSOM DESOM, MALAPPURAM DISTRICT. 49. K.M. KRISHNAN, AGED 49 YEARS, S/O. DECEASED KELUKUTTY, MURIKKATTU HOUSE, CHELEMBRA AMSOM DESOM, MALAPPURAM DISTRICT. 50. K.M. RAGHAVAN, AGED 46 YEARS, S/O. DECEASED KELUKUTTY, MURIKKATTU HOUSE, CHELEMBRA AMSOM DESOM, MALAPPURAM DISTRICT. 51. K.M. MALUKUTTY, AGED 43 YEARS, D/O. DECEASED KELUKUTTY, MURIKKATTU HOUSE, CHELEMBRA AMSOM DESOM, MALAPPURAM DISTRICT. 52. K.M. BALAKRISHNAN, AGED 40 YEARS, S/O. DECEASED KELUKUTTY, MURIKKATTU HOUSE, CHELEMBRA AMSOM DESOM, MALAPPURAM DISTRICT. 53. K.M. SASIDHARAN, AGED 38 YEARS, S/O. DECEASED KELUKUTTY, MURIKKATTU HOUSE, CHELEMBRA AMSOM DESOM, MALAPPURAM DISTRICT. 54. K.M. RAVEENDRAN, AGED 36 YEARS, S/O. DECEASED KELUKUTTY, MURIKKATTU HOUSE, CHELEMBRA AMSOM DESOM, MALAPPURAM DISTRICT. (...6/-) FAO.106/05 (6) 55. K.M. GEETHA, AGED 33 YEARS, D/O. DECEASED KELUKUTTY, MURIKKATTU HOUSE, CHELEMBRA AMSOM DESOM, MALAPPURAM DISTRICT. (* SUPPLEMENTAL RESPONDENTS 47 TO 55 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 18TH RESPONDENT VIDE ORDER DTD. 16.8.06 ON I.A.2317/06) ADV. MR. P.K.SURESH KUMAR FOR R12 MR. K.P.SUDHEER FOR R12 MR. P.SANJAY FOR R18,20,43,45,46 MR. A.PARVATHI MENON FOR R18,20,43,45,46 MR. C.K.AJAYAKUMAR FOR R18,20,43,45,46 MS.M.C.SANITHA FOR R18,20,43,45,46 MR. P.SANJAY FOR R11,14TO16&42. MR. A.PARVATHI MENON FOR R11,14TO16&42. MR. C.K.AJAYAKUMAR FOR R11,14TO16&42. MS.M.C.SANITHA FOR R11,14TO16,42. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.106/05 ORDER ON I.A1789 OF 2005 IN FAO.106 OF 2005 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 16.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- F.A.O.No.106 OF 2005 -------------------------------------------------- Dated this the 16th day of March, 2009 J U D G M E N T Appellants are the petitioners in I.A.371 of 2004 in A.S.20 of 1995 on the file of Sub Court, Tirur. Respondents are the respondents in the application. A preliminary decree for partition was passed by Sub Court, Tirur in O.S.484 of 1961 on 25.7.1966. As per the preliminary decree, item Nos.1 to 4 and 12 of the plaint schedule properties were available for partition. It was directed to be divided into 36 shares. Plaintiff was allotted 1/3 (12/36) share. Fifth defendant was allotted 1/36 share. Defendants 9 and 10, 4/36 shares. Defendant No.23 being the legal heir of 11th defendant was allotted 4/36 shares. Defendants 16 to 22 being the legal heirs of 13th defendant was allotted 4/36 shares. Second defendant alone challenged the preliminary decree before Sub Court, Tirur in A.S.779 of 1970. Appeal was dismissed on 14.8.1972 confirming the preliminary decree. Thereafter in I.A.88 of 1973, an application for passing of a final decree, final decree was passed on 23.12.1978. That FAO.106/2005 2 final decree was challenged before Sub Court, Tirur in A.S.60 of 1979. First Appellate Court set aside the final decree on 3.7.1981 and remanded the final decree application for fresh disposal. After remand, the pleadings were amended and a final decree was passed on 18.6.1982. It was challenged before Sub Court, Tirur in A.S.75 of 1982. That appeal was dismissed. It was challenged before this court in S.A. 472 of 1988. This court dismissed the second appeal on 23.6.1988. 2. As per the preliminary decree no share was allotted to the first defendant though in the plaint itself it is admitted that first defendant has 1/36 share. The legal heirs of the first defendant filed I.A.2950 of 1994 for passing a supplementary preliminary decree contending that as the share due to first defendant was not alloted, they cannot get share allotted. As per order dated 14.11.1994 a supplementary preliminary decree was passed declaring that first defendant is entitled to 1/36 right over items 1 to 4, and 12 of the plaint schedule property, which was found to be available for partition as per the preliminary decree, as confirmed in A.S.779 of 1970. The legal heirs of third defendant in A.S.20 of 1975 challenged the supplementary FAO.106/2005 3 preliminary decree. That appeal was dismissed for default on 5.2.2004. I.A.371 of 2004 was filed to readmit the appeal under Rule 19 of Order XLI of Code of Civil Procedure. As per the impugned order that application was dismissed. It is challenged in this appeal. 3. Learned counsel appearing for appellant and learned counsel appearing for contesting respondents were heard. 4. Learned counsel appearing for the appellant argued that the first Appellate Court was not justified in dismissing the application filed under Rule 19 of Order XLI of Code of Civil Procedure when it is established that the appellants were not aware of the posting of the appeal on 5.2.2004 or its dismissal and that too for the reason that the predecessor in respect of the appellant the third defendant did not challenge the right of the first defendant in the property. Learned counsel relied on the judgment of the trial court dated 25.7.1966, where the contentions of the third defendant was stated in brief to the effect that Imbichunni had assigned the property and therefore the said properties are not available for partition. Learned counsel argued that in the light of said contention the question FAO.106/2005 4 whether item Nos. 1 to 4 are available for partition and whether the first defendant is entitled to a share is a question to be onsidered by the Sub court in A.S.20 of 1995 and the denial of an opportunity to have a decision on merit in the appeal is against the interest of justice and therefore the appeal is to be readmitted to file. 5. Learned counsel appearing for contesting respondents pointed out that in spite of the contention raised by the third defendant as well as defendants 1 and 2 that item Nos.1 to 4 are not available for partition, a preliminary decree was passed finding that item Nos.1 to 4 are available for partition and that preliminary decree was confirmed in A.S.779 of 1970 by Sub Court, Tirur and pursuant to the preliminary decree a final decree was also passed and it has also become final and therefore appellants are not entitled to challenge the availability of items 1 to 4 for partition by recourse to filing an appeal against the supplementary preliminary decree. It was contended that as per order in I.A.2950 of 1994 the trial court had only allowed to get the 1/36 share due to the first defendant separated and in the plaint itself that share was admitted and FAO.106/2005 5 none of the defendants disputed that share, if item Nos.1 to 4 are available for partition and therefore there is no merit in the appeal. 6. On hearing the learned counsel appearing for both sides, I do not find any reason to interfere with the dismissal of I.A.371 of 2004 whereby dismissal of A.S.20 of 1995 was concluded. Though learned counsel appearing for the appellants vehemently argued that third defendant had denied the availability of items 1 to 4 for partition on the ground that the said properties were originally assigned in favour of Imbichunni, who in turn assigned it in favour of Sankaran Nambissan, that contention was not accepted by the trial court and a preliminary decree was passed holding that items 1 to 4 are available for partition and plaintiff and defendants 5, 9, 10, 23 and 16 to 22 are entitled to get their share separated. That preliminary decree was not challenged by the third defendant, though second defendant challenged it in A.S.779 of 1970 on the very same ground which was raised by the third defendant in his written statement. A.S.779 of 1970 was dismissed confirming the preliminary decree. It has become final long back. FAO.106/2005 6 Therefore, appellants who are only the legal heirs of third defendant are not entitled to challenge the availability of items 1 to 4 for partition as they are claiming right only under the third defendant and the third defendant did not challenge the preliminary decree. Even if the appeal is to be readmitted, there is no merit in the appeal to be heard and in such circumstances there is no reason to interfere with the order passed by the learned Sub Judge in I.A.371 of 2004. Appeal is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb