IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 FAO.No. 335 of 2007() --------------------- AGAINST THE ORDER IN IA.3101/2006 IN IA.2461/06 IN OS.116/1993 of ADDL.SUB COURT, THALASSERY .................... APPELLANTS/PETITIONERS/DEFENDANTS NO.18 TO 20: ------------------------------------------------------------------------------ 1. A.S.MUHAMMED MANZUR, S/O. MUHAMMED SEECRY, AGED 63 YEARS, BUSINESSMAN, COLOMBO STORES, VEERAJPET, KODAGU, KARNATAKA STATE. 2. A.H.MOULA ALI, S/O. A.S.MOHAMMED HASSAN, AGED 44 YEARS, BUSINESSMAN, COLOMBO STORES, VEERAJPET, KODAGU, KARNATAKA STATE, NOW AT COLOMBO STORES, 31-33 ERSKINE ROAD, NULL BAZAR, MUMBAI-400 003. 3. A.H.MOUZAM ALI, S/O. A.S.MOHAMMED HASSAN, AGED 42 YEARS, BUSINESSMAN, COLOMBO STORES, VEERAJPET, KODAGU, KARNATAKA STATE. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): RESPONDENTS/PLAINTIFFS NO.2 TO 5 & DEF.NO.3,8 - 42 ---------------------------------------------------------------------------------------------------- 1. ARACHAMVEETTIL HAJIRABI, W/O. LATE P.K.ABDULLA, AGED 53 YEARS, NO OCCUPATION, THALAPARAMBA BUNGALOW, KUTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT. 2. SAJIDHA SALAM, D/O. LATE P.K.ABDULLA, AGED 33 YEARS, NO OCCUPATION, RESIDING AT THUMBAY APARTMENTS, 5TH FLOOR, ODELHO LANE, FAL-NIR, MANGALORE, KARNATAKA STATE. 3. BABIDHA MUSALIAR, D/O. LATE P.K.ABDULLA, AGED 31 YEARS, NO OCCUPATION, RESIDING AT 2ND FLOOR, TIRTHINAPALLI TERRACE,SRI.NAGAR COLONY, SAIDAPET, CHENNAI. 4. SHARMIN ABDUL WAHID, D/O. LATE P.K.ABDULLA, AGED 29 YEARS, NO OCCUPATION, RESIDING AT SABAH HOUSE, THIRUVANOOR NADA, OPPOSITE U.P.SCHOOL, CALICUT-1, KOZHIKODE DIST., KERALA. 5. P.K.SAFIA UMMA, W/O. LATE ABDUL SHUKUR, (DIED) AGED 84 YEARS, NO OCCUPATION, RESIDING AT MOUNT PLEASANT, THALASSERY, KANNUR DISTRICT, KERALA. 6. P.K.MOHAMMED, S/O. LATE A.K.KADARKUTTY, AGED 67 YEARS, BUSINESSMAN, RESIDING AT MONRY POSE, THANA, KANNUR, KANNUR DISTRICT, KERALA. 7. P.K.HARRIS, S/O. LATE A.K.KADARKUTTY, AGED 64 YEARS, BUSINESSMAN, RESIDING AT PALLIKUNNU BUNGALOW, THALASSERY, KANNUR DISTRICT, KERALA. 8. P.K.HASHIM, S/O. LATE A.K.KADARKUTTY, AGED 60 YEARS, BUSINESSMAN, RESIDING AT PALLIKUNNU BUNGALOW, THALASSERY, KANNUR DISTRICT, KERALA. 9. P.K.JAMEELA, D/O. LATE A.K.KADARKUTTY, AGED 62 YEARS, NO OCCUPATION, RESIDING AT SITHARA ASHRAM, QUILON, KOLLAM DISTRICT, KERALA. 10. P.K.RABIYA, D/O. LATE A.K.KADARKUTTY, AGED 59 YEARS, NO OCCUPATION, RESIDING AT VASLANE, MANGALORE, KARNATAKA STATE. 11. T.T.P.KAYYUMMA, W/O. LATE MAMMU, AGED 70 YEARS, NO OCCUPATION, RESIDING AT 'NOOR MAHAL', P.O.AMBILAD, KUTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT. 12. T.T.P.MAHAMOOD, S/O. LATE MAMMU, AGED 42 YEARS, BUSINESS, RESIDING AT 'NOOR MAHAL', P.O.AMBILAD, KUTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT, KERALA. 13. T.T.P.ALI, S/O. LATE MAMMU, AGED 42 YEARS, BUSINESS, RESIDING AT 'NOOR MAHAL', P.O.AMBILAD, KUTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT, KERALA. 14. T.T.P.MAYAN, S/O. LATE MAMMU, AGED 40 YEARS, BUSINESS, RESIDING AT 'NOOR MAHAL', P.O.AMBILAD, KUTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT, KERALA. 15. A.K.MARIYU, W/O. N.R.ABDUL HAMEED, NO OCCUPATION, AGED 55 YEARS, SABIDA MANZIL, P.O.UNNIKULAM, COONER, KOZHIKODE DISTRICT, KERALA. 16. K.M.KUTTY BEE, W/O. P.K.ALI, AGED 71, 8/401, NADUVATTOM AMSOM DESOM, RED CROSS ROAD, CALICUT, KOZHIKODE DISTRICT, KERALA. 17. P.K.MAYAN, S/O. P.K.ALI, AGED 50 YEARS, 8/401, NADUVATTOM AMSOM DESOM, RED CROSS ROAD, CALICUT, KOZHIKODE DISTRICT, KERALA. 18. P.K.NASEEM, S/O. P.K.ALI, AGED 49 YRS, 8/401, NADUVATTOM AMSOM DESOM, RED CROSS ROAD, CALICUT, KOZHIKODE DISTRICT, KERALA. 19. P.K.ZAREENA, D/O. P.K.ALI, AGED 48 YRS, 8/401, NADUVATTOM AMSOM DESOM, RED CROSS ROAD, CALICUT, KOZHIKODE DISTRICT, KERALA. 20. P.K.VAHEEDA, D/O. P.K.ALI, AGED 45 YRS, 8/401, NADUVATTOM AMSOM DESOM, RED CROSS ROAD, CALICUT, KOZHIKODE DISTRICT, KERALA. 21. P.K.MOHAMOOD, S/O. P.K.ALI, AGED 44 YRS, 8/401, NADUVATTOM AMSOM DESOM, RED CROSS ROAD, CALICUT, KOZHIKODE DISTRICT, KERALA. 22. P.K.KAMARUNNISSA, W/O. P.K.MOIDU, AGED 57 YEARS, PALAPARAMBA BUNGALOW, MANANTHERI AMSOM DESOM, NIRMALAGIRI P.O., KANNUR DISTRICT, KERALA. 23. P.K.FAIZAL, S/O. P.K.MOIDU, AGED 37, PALAPARAMBA BUNGALOW, MANANTHERI AMSOM DESOM, NIRMALAGIRI P.O., KANNUR DISTRICT, KERALA. 24. P.K.FARZANA, D/O. P.K.MOIDU, AGED 35 YEARS, PALAPARAMBA BUNGALOW, MANANTHERI AMSOM DESOM, NIRMALAGIRI P.O., KANNUR DISTRICT, KERALA. 25. P.K.FAHAD, S/O. P.K.MOIDU, AGED 20 YRS, PALAPARAMBA BUNGALOW, MANANTHERI AMSOM DESOM, NIRMALAGIRI P.O., KANNUR DISTRICT, KERALA. 26. P.K.RAZIYA, D/O. AYISUMMA, AGED 63, NO OCCUPATION, RESIDING AT ASHYANA, CANTONMENT, KANNUR, KERALA. 27. P.K.SALEEM, S/O. AYISUMMA, AGED 62 YRS, BUSINESS, RESIDING AT ASHYANA, CANTONMENT, KANNUR, KERALA. 28. P.K.SHAMEEM, S/O. AYISUMMA, AGED 59, RESIDING AT ASHYANA, CANTONMENT, KANNUR, KERALA. 29. P.K.NASEENA, D/O. AYISUMMA, AGED 53, NO OCCUPATION, RESIDING AT ASHYANA, CANTONMENT, KANNUR, KERALA. 30. ZEENATH AFFROSE RAHIM, D/O. T.P.P.ABDULLA, AGED 55 YEARS, RESIDING AT NO.368, LIOYOLS ROAD, CHENNAI-86, TAMIL NADU. 31. P.K.MOHAMMED ABDULLA, S/O.T.P.P.ABDULLA, AGED 51 YEARS, RESIDING AT RAHMATH BAGH, BEHIND SALES TAX CHECK POST, KANNOTHUMCHAL, KANNUR-5, KERALA. 32. P.K.NASEER ABDULLA, S/O. T.P.P.ABDULLA, AGED 46 YEARS, RESIDING AT NO.368, LIOYOLS ROAD, CHENNAI-86, TAMIL NADU. 33. A.K.AMINA UMMA, W/O. P.K.MAYAN, AGED 66 YEARS, KOYAPATHODY BUNGALOW, CHEVAYOOR, KOZHIKODE-673 008, KERALA. 34. P.K.KADAR KUTTY, S/O. P.K.MAYAN, AGED 45 YEARS, KOYAPATHODY BUNGALOW, CHEVAYOOR, KOZHIKODE-673 008, KERALA. 35. P.K.AHAMMED KUTTY, S/O. P.K.MAYAN, AGED 43 YEARS, KOYAPATHODY BUNGALOW, CHEVAYOOR, KOZHIKODE-673 008, KERALA. 36. P.K.KADEEJA, D/O. P.K.MAYAN, AGED 41, KOYAPATHODY BUNGALOW, CHEVAYOOR, KOZHIKODE-673 008, KERALA. 37. P.K.AYSHA, D/O. P.K.MAYAN, AGED 39, KOYAPATHODY BUNGALOW, CHEVAYOOR, KOZHIKODE-673 008, KERALA. ADDL.R 38 TO R44 IMPLEADED. 38. P.K. MOHAMMED ALI, S/O. LTE ABDUL SHUKUR, AGED 62 YEARS, BUSINESS, RESIDING AT 'MOUNT PLEASANT', HOLLOWAY ROAD, NEAR DISTRICT COURT, THALSSERY, KANNUR DISTRICT, KERALA. 39. P.K. KUNHAMINA, D/O. LATE ABDUL SHUKUR, AGED 60 YEARS, NO OCCUPATION, RESIDING AT MOUNT PLESANT, HOLLOWAY ROAD, NEAR DISTRICT COURT, THALASSERY, KANNUR DISTRICT, KERALA. 40. P.K. KHALID, S/O. LATE ABDUL SHUKUR, AGED 58 YEARS, BUSINESS, RESIDING AT HILL TOP, KORAKUNNU, THALASSERY, KANNUR DISTRICT, KERALA. 41. P.K. NIZAR, S/O. LATE ABDUL SHUKUR, AGED 56 YEARS, EMPLOYED ABROAD, RESIDING AT MOUNT PLEASANT, HOLLOWAY ROAD, NEAR DISTRICT COURT, THALSSERRY, KANNUR DISTRICT, KERALA. 42. P.K. MAYAN, S/O. LATE ABDUL SHUKUR, AGED 54 YEARS, BUSINESS, RESIDING AT “MOUNT PLEASANT, HOLLOWAY ROAD, NEAR DISTICT COURT, THALSSERY, KANNUR DISTRICT, KERALA. 43. P.K. LATHEF, S/O. LATE ABDUL SHUKUR, AGED 52 YEARS, EMPLOYED ABROAD, RESIDING AT MOUNT PLEASANT, HOLLOWAY ROAD, NEAR DISTRICT COURT, THALASSERY, KANNUR DISTRICT, KERALA. 44. P.K. NAZIA, D/O. LATE ABDUL SHUKUR, AGED 50 YEARS, NO OCCUPATION, RESIDING AT MOUNT PLEASANT, HOLLOWAY ROAD, NEAR DISTRICT COURT, THALASSERY, KANNUR DISTRICT, KERALA. ADDL. R38 TO 44 IMPLEADED AS PER ORDER DATED 8.7.2009 IN I.A. 125/2008. ADV. SRI.K.V.PAVITHRAN FOR R1 TO 4, 6 TO 15, 17 TO 37 ADDL.38 TO 41 AND 44 ADV. SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R1 TO 4,6 TO 41 & 44 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 335 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of July, 2009. JUDGMENT Bhavadasan, J, Defendants 18 to 20 in O.S. 116 of 1993 before the Sub Court, Thalassery are the appellants. Their application, namely, I.A.3101 of 2006 in I.A. 2461 of 2006 in O.S. 116 of 1993 for restoration of the application to set aside the ex-parte decree was dismissed. 2. The suit was one for partition. The appellants are the assignees from one of the parties to the suit, namely, Ali. It is stated that the appellants are not members of the family, but assignees from the sharers who sought partition of the suit properties. They are the assignees of plaint item No.4 situate in Coorg District of Karnataka State. They purchased the property for valuable consideration from the first defendant in the suit in 1981 and since then have been in absolute possession and enjoyment. It was their contention that item F.A.O.335/2007. 2 No.4 is not therefore available for partition. Even though they raised a plea of fixity of tenure under the Kerala Land Reforms Act, that plea was found against them. The matter was carried in Civil Revision Petition before this court, but that was also dismissed as per order dated 8.3.2006. While dismissing the Civil Revision Petition, this court directed that the suit be disposed of within five months. The appellants would say that the dismissal of the CRP was not communicated to them by their counsel and they were unaware of the same. Therefore, when the suit was listed for trial on 18.8.2006, they could not appear before the court below. They were set ex-parte and an ex-parte decree as against them was passed on 26.8.2006. Since the appellants came to know of the ex- parte decree, they contacted their counsel, who had appeared for them and collected the files. They thereafter filed I.A. 2461 of 2006 in O.S.116 of 1993 to have the ex-parte decree set aside. That I.A. was not opposed by the respondents in that petition. On F.A.O.335/2007. 3 22.11.2006 when the matter stood posted for filing of counter affidavit and hearing, the counsel appearing for the appellants could not reach the court in time and the court below therefore dismissed the application for default. I.A. 3101 of 2006 was filed for restoration of I.A.2461 of 2006. The petitioner would point out that there was no wilful laches or negligence on their part and the suit be re-opened and they may be allowed to contest the same. 3. It is to be noticed that the suit is one for partition. Admittedly the appellants are not members of the family, the properties of which were sought to be partitioned. The main contention taken by the appellants herein is that they had purchased item No.4 from the first defendant in the suit in 1981 and it belonged exclusively to them and is not available for partition. The court below was not inclined to accept that claim and it was held that it is available for partition and a preliminary decree was passed. It was an ex-parte decree as against the F.A.O.335/2007. 4 appellants. It was for setting aside that ex-parte decree that I.A. 2461 of 2006 was filed. It is seen from the records that the said application was posted to 22.11.2006 for filing of counter affidavit of the respondents and for hearing. According to the appellants, on that day their counsel could not appear before court due to a bandh call by one of the political parties. The result was that the said application was dismissed. They sought restoration of that application by filing I.A.3101 of 2006. It is the case of the appellants that there was no wilful laches or negligence on their part and they have serious contentions to be urged in the suit. 4. Learned counsel appearing for the respondents pointed out that even if the appellants are given an opportunity to contest the suit on merits, that serves no purpose except that it will only delay in completing the proceedings. It is pointed out that the documents by which one of the sharers sold the property to the appellants recites that there are other sharers to the said property F.A.O.335/2007. 5 and that it was with their consent that the sale deed was executed. There is nothing to show that there was any such consent from other sharers. The learned counsel pointed out that at best what the appellants would seek was that, the property purchased by them may be set apart to the share of their vendor as far as possible. 5. It was pointed out that even going by the materials now on record, the appellants can contend that the property assigned to them by the sharer should be allotted to him as far as possible in partition suit so that the possession and enjoyment of the appellants may not have to be disturbed. 6. It is brought to the notice of this court that in the final decree proceedings, the vendor of the appellants have been allotted property elsewhere. 7. It is true that no grounds are made out to interfere with the impugned order as such. The appellants cannot be heard to say that the property assigned to them, which was item No.4 in F.A.O.335/2007. 6 the suit was not available for partition. It is not as if that the sharer had assigned the property concealing facts. In the document of title in favour of the appellants, the devolution of the property is clearly recited and it is also stated that there are other sharers to the property. This means that the appellants were aware of the defect in title, which they have obtained as per the assignment deed from the first defendant. Under such circumstances, it cannot be said that the appellants have a right to retain the property. It is only in equity that the property assigned to the appellants be set apart to the share of their assignor as far as possible. 8. Both sides pointed out that there was no such direction in the preliminary decree. But the contesting respondents in this appeal had no objection in making that reservation subject ofcourse to the availability of property. 9. Even though no convincing reasons are given for interfering with the order of the court below, in order to give a F.A.O.335/2007. 7 quietus to the matter, it is felt that it is only proper to direct that as far as possible the property assigned to the appellants be set apart to the share of their vendor while passing the final decree so that the rights of the appellants as far as possible are saved. There will be a direction to that effect. The appeal is disposed of as above. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.