Aliyot Vijayakumar v. Aliyot Dinesh Babu and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 26TH DAY OF SEPTEMBER 2017/4TH ASWINA, 1939** **RSA.No. 176 of 2016 (D)** **-----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 10-12-2014 IN AS 143/2013 of III ADDITIONAL DISTRICT COURT, KOZHIKODE** **AGAINST THE JUDGMENT AND DECREE DATED 13.06.2013 IN OS 670/1999 of ADDITIONAL MUNSIFF COURT-I, KOZHIKODE** **APPELLANT/3RD RESPONDENT/3RD DEFENDANT:-:** **-----------------------------------------** **ALIYOT VIJAYAKUMAR (WRONGLY SHOWN AS ALIYOT VIJAYAN), AGED 59 YEARS,** **S/O.IMBICHIKUTTY, VALIYAPARAMBIL H, KOZHIKODE DISTRICT.** **BY ADVS.SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI** **RESPONDENTS/APPELLANTS AND RESPONDENTS 1 AND 2 AND 4 TO 25/PLAINTIFFS AND DEFENDANTS 1, 2, 4 TO 21 AND 24 TO 26 - LEGAL HEIRS OF DECEASED RESPONDENTS 9, 17, 18, 26:-:** **---------------------------------------------------------** **1. ALIYOT DINESH BABU, AGED 60 YEARS, S/O.VELAYUDHAN, KOTTOOLI AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673 106.** **2. ALIYOT GEETHA, AGED 54 YEARS, D/O.VELAYUDHAN, KOTTOLI AMSOM AND DESOM OF KOZHIKODE TALUK, PIN - 673 106.** **3. ALIYOT LATHA, AGED 49 YEARS, D/O.VELAYUDHAN, KOTTOLI AMSOM AND DESOM OF KOZHIKODE TALUK, PIN - 673 106.** **4. ALIYOT GIREESH, AGED 40 YEARS, S/O.VELAYUDHAN, KOTTOLI AMSOM AND DESOM OF KOZHIKODE TALUK, PIN - 673 106.** **RSA.No. 176 of 2016 (D) -----------------------** **5. ALIYOT SUDHA, AGED 46 YEARS, D/O.VELAYUDHAN, KOTTOLI AMSOM AND DESOM OF KOZHIKODE TALUK, PIN - 673 106.** ## **6. SINDHU, AGED 25 YEARS,** - **W/O.LATE PURUSHOTHAMAN, RESIDING AT ALLIYOT HOUSE, KOTTOLI AMSOM AND DESOM OF KOZHIKODE TALUK, PIN - 673 106.** **7. ADITHYAN, AGED 6 YEARS, S/O.LATE PURUSHOTHAMAN, RESIDING AT ALLIYOT-H, REPRESENTED BY MOTHER SINDHU, 6TH APPELLANT, KOTTOOLI AMSOM AND DESOM OF KOZHIKODE TALUK, PIN - 673 106.** ## **8. ALIYOT RAMACHANDRAN, AGED 42 YEARS,** - **S/O.IMBICHIKUTTY, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 106.** **9. ALIYOT BABU, AGED 44 YEARS, S/O.IMBICHIKUTTY, VALIYAPARAMBIL H, KOZHIKODE.(DIED)** **10. ALIYOT SURESH, AGED 40 YEARS, S/O.IMBICHIKUTTY, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 106.** **11. ALIYOT SETHUMADHAVAN, AGED 36 YEARS, S/O.IMBICHIKUTTY, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 106.** **12. ALIYOT MADHUSOODHANAN, AGED 56 YEARS, S/O.IMBICHIKUTTY, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 106.** **13. ALIYOT MYTHILI, AGED 56 YEARS, D/O.IMBICHIKUTTY, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 106.** **14. ALIYOT SAROJINI, AGED 54 YEARS,** - **D/O.IMBICHIKUTTY, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 106.** **15. ALIYOT SOUMINI, AGED 51 YEARS, D/O.IMBICHIKUTTY, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 106.** **16. ALIYOT VINODINI, AGED 36 YEARS, D/O.IMBICHIKUTTY, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 106.** ## **RSA.No. 176 of 2016 (D)** ## **-----------------------** **17. ALIYOT VISWANATHAN, AGED 60 YEARS, S/O.KESAVAN, CHATHAMADATH THAZHA HOUSE, P.O.KOTTOOLI, KOZHIKODE TALUK.(DIED)** **18. ALIYOT LEELA, AGED 44 YEARS, D/O.KESAVAN, CHATHAMADATH THAZHAM H, P.O.KOTTOOLI, KOZHIKODE TALUK.(DIED)** **19. ALIYOT DHARMARAJAN, AGED 42 YEARS, S/O.APPUTTY, ALIYOTT HOUSE, P.O.KUTHIRAVATTOM, KOTTOOLI AMSOM, PARAYANCHERI DESOM OF KOZHIKODE TALUK, PIN - 673 016.** **20. ALIYOT THAMKAM, AGED 44 YEARS, S/O.APPUTTY, ALIYOTT HOUSE, P.O.KUTHIRAVATTOM, KOTTOOLI AMSOM, PARAYANCHERI DESOM OF KOZHIKODE TALUK, PIN - 673 016.** **21. ALIYOT SUNANDA, AGED 40 YEARS, D/O.APPUTTY, ALIYOTT HOUSE, P.O.KUTHIRAVATTOM, KOTTOOLI AMSOM, PARAYANCHERI DESOM OF KOZHIKODE TALUK, PIN - 673 016.** **22. ALIYOT LATHIKA, AGED 40 YEARS, D/O.APPUTTY, ALIYOTT HOUSE, P.O.KUTHIRAVATTOM, KOTTOOLI AMSOM, PIN - 673 016, PARAYANCHERI DESOM OF KOZHIKODE TALUK.** **23. ALIYOT THAMKAM, AGED 44 YEARS, D/O.THAMU, PANNIYANKARA AMSOM DESOM OF KOZHIKODE TALUK, PIN - 673 016.** **24. ALIYOT MANDAKINI, AGED 46 YEARS, D/O.THAMU, PANNIYANKARA AMSOM DESOM OF KOZHIKODE TALUK, PIN - 673 016.** **25. ALIYOT SIVADASAN, AGED 47 YEARS, S/O.VELAYUDHAN, KOTTOLI AMSOM AND PARAYANCHERI DESOM OF KOZHIKODE TALUK, PIN - 673 016.** **26. ALIYOT LALURAJ, AGED 44 YEARS, S/O.VELAYUDHAN, KOTTOOLI AMSOM AND PARAYANCHERI DESOM OF KOZHIKODE TALUK.(DIED)** **27. ALIYOT LEELA, AGED 64 YEARS, W/O.VELAYUDHAN, KOTTOOLI AMSOM AND PARAYANCHERI DESOM OF KOZHIKODE TALUK.(DIED)** ## **RSA.No. 176 of 2016 (D)** **-----------------------** *** 28. LALITHA VELAYUDHAN, AGED 57 YEARS, W/O.VELAYUDHAN, 'REGHU RESHMI', ANNICHAL ROAD, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK, PIN - 673 016. (DIED) (LRS RECORDED).** **29. RAJEEV PANAKKAL, AGED 36 YEARS, S/O.VELAYUDHAN, REGHU RESHMI, ANNICHAL ROAD, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK, PIN - 673 016.** **30. SAJEEV PANAKKAL, AGED 36 YEARS, REGHU RESHMI, ANNICHAL ROAD, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK, PIN - 673 016.** **31. SUDHA RAJAN, AGED 32 YEARS, "REGHU RESHMI", ANNICHAL ROAD, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK, PIN - 673 016.** ## **LEGAL HEIRS OF DECEASED 9TH RESPONDENT :** **32. SOBHA, W/O.LATE ALIYOT BABU, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 001.** **33. SABITHA, D/O.LATE ALIYOT BABU, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 001.** **34. SUMI, D/O.LATE ALIYOT BABU, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 001.** **35. SARITHA, D/O.LATE ALIYOT BABU, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 001.** **36. ASHWATHY, D/O.LATE ALIYOT BABU, VALIYAPARAMBIL HOUSE, KOZHIKODE - 673 001.** ## **LEGAL HEIRS OF DECEASED 17TH RESPONDENT:** **37. MINI, D/O.LATE ALIYOT VISWANATHAN, CHATHAMADATH THAZHA HOUSE, P.O.KOTTOOLI, KOZHIKODE TALUK, PIN - 673 016.** **RSA.No. 176 of 2016 (D) -----------------------** **38. MEENA, D/O.LATE ALIYOT VISWANATHAN, CHATHAMADATH THAZHA HOUSE, P.O.KOTTOOLI, KOZHIKODE TALUK, PIN - 673 016.** **39. MEERA, D/O.LATE ALIYOT VISWANATHAN, CHATHAMADATH THAZHA HOUSE, P.O.KOTTOOLI, KOZHIKODE TALUK, PIN - 673 016.** **40. MAYA, D/O.LATE ALIYOT VISWANATHAN, CHATHAMADATH THAZHA HOUSE, P.O.KOTTOOLI, KOZHIKODE TALUK, PIN - 673 016.** **41. MANJU, D/O.LATE ALIYOT VISWANATHAN, CHATHAMADATH THAZHA HOUSE, P.O.KOTTOOLI, KOZHIKODE TALUK, PIN - 673 016.** **42. MOLI, D/O.LATE ALIYOT VISWANATHAN, CHATHAMADATH THAZHA HOUSE, P.O.KOTTOOLI, KOZHIKODE TALUK, PIN - 673 016.** ## **LEGAL HEIRS OF DECEASED 18TH RESPONDENT:** **43. KRISHNAN, S/O.LATE ALIYOT LEELA, CHATHAMADATH THAZHAM HOUSE, P.O.KOTTOOLI, KOZHIKODE TALUK, PIN - 673 016.** **44. AJITHA, D/O.LATE ALIYOT LEELA, CHATHAMADATH THAZHAM HOUSE, P.O.KOTTOOLI, KOZHIKODE TALUK, PIN - 673 016.** ## **LEGAL HEIRS OF DECEASED 26TH RESPONDENT:** **45. ANITHA, W/O.LATE ALIYOT LALURAJ, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKOE TALUK, PIN - 673 016.** **46. APARNA, D/O.LATE ALIYOT LALURAJ, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKOE TALUK, PIN - 673 016.** **47. ABHILASH, S/O.LATE ALIYOT LALURAJ, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKOE TALUK, PIN - 673 016.** **RSA.No. 176 of 2016 (D)** **-----------------------** **48. AMAL RAJ, S/O.LATE ALIYOT LALURAJ, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKOE TALUK, PIN - 673 016.** *** AS PER ORDER DATED 01.04.2016 IN MEMO CF 1961/16 DATED 23.03.2016, IT IS RECORDED THAT THE 28TH RESPONDENT DIED AND RESPONDENTS 29,30 AND 31, WHO ARE ALREADY IN THE PARTY ARRAY ARE HER LEGAL REPRESENTATIVES.** **R25 BY ADV. SRI.JACOB ABRAHAM R30 BY ADV. SRI.P.A.HARISH R30 & R52 BY ADV. SRI.V.V.SURENDRAN R49 & R50 BY ADV. SRI.MILLU DANDAPANI R54 & R62 BY ADV. SRI.KANDAMPULLY RAHUL** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **B. KEMAL PASHA, J.** ................................................................ R.S.A. No. 176 of 2016 ............................................................... Dated this the 26[th] day of September, 2017 ## **J U D G M E N T** Heard the second appeal on the question of maintainability. The learned counsel for respondents 29, 30 and 31 vehemently challenges the maintainability of the appeal preferred by the 3[rd] respondent in the suit for the first time as a second appeal. 2. According to the learned counsel for the appellant, the right of the mother over the property was not adjudicated in the suit and therefore, the appellant is entitled to moot that question through a second appeal. The argument is that in a suit for partition, an aggrieved party who has not challenged the judgment and decree can maintain a second appeal. 3. In this context the learned counsel for the R.S.A. 176 of 2016 -: 2 :- appellant has relied on the decision of the Apex Court in _**Hardevinder Singh v. Paramjit Singh and others** [CDJ 2013 SC 010 = (2013) 9 SCC 261]_ . In the case relating to the decision in _**Hardevinder Singh** (supra)_ , a party who was benefited by a judgment and decree, was found entitled to challenge the appellate decree when the judgment and decree in his favour was upset by the appellate court. The facts of the case in the said decision and the law propounded by the Apex Court therein have no application to the facts and circumstances of the present case. 4. In this particular suit, the appellant was the 3[rd] defendant. The appellant remained as a mute spectator, when his siblings, who were defendants 1 and 2, had chosen to contest the suit. The defendants also accepted the case of the plaintiff who had averred that Imbichutti, from whom defendants 1 to 10 had claimed the property by succession, had disposed of his 1/3[rd] right over the property and it came to the hands of the 22[nd] defendant. The plaintiffs R.S.A. 176 of 2016 -: 3 :- lost the suit for partition. When they were non-suited they preferred A.S.No.172/2004 from the judgment and decree in O.S.No.670/1999. It has to be noted that this appellant has not even cared to contest the appeal or to file a separate appeal. All along, this appellant suffered the judgments and decrees of the trial court as well as the appellate court. The lower appellate court in A.S.No.172/2004 remanded the suit for fresh disposal in order to consider Ext.B15 which was by then produced by the 23[rd] defendant in the appeal. Once again, the trial court dismissed the suit. Again, A.S.No.143/2013 was filed. Even at that point of time, the present appellant had not chosen to file any appeal or to contest A.S.No.143/2013. The lower appellate court concurred with the findings entered by the trial court and dismissed the appeal. Presently, for the first time, the 3[rd] defendant, who had all along suffered the decrees as well as the appellate decrees has come up with this second appeal. R.S.A. 176 of 2016 -: 4 :- 5. Apart from the above, the present contentions set up by the learned counsel for the appellant has no connection with any of the matters in controversy in O.S.No.670/1999 or A.S.No.143/2013. Presently, it is contended that the mother of the appellant had obtained a right over the property and that question was not adjudicated in the suit or in the first appeal. If, as a matter of fact, the appellant had any such contention regarding the so-called right of his mother over the property, he ought to have contested the suit or at least he ought to have preferred an appeal challenging the trial court judgment and decree. Having chosen to suffer the judgments and decrees of the trial court as well as those of the lower appellate court, the appellant cannot be heard to say that he has some other fresh contentions regarding his right or his mother's right over the property. 6. The learned counsel for respondents 29, 30 and 31 has pointed out that initially their predecessor-in-interest R.S.A. 176 of 2016 -: 5 :- who was the 22[nd] defendant, had executed the decree obtained by him in O.S.No.341/1960, against one Gopalan, who was the original title holder of the property, who obtained the property pursuant to a court auction in O.S.No.468/1947. When disputes have arisen regarding the property, the 22[nd] defendant had to file O.S.No.202/1980. The said suit was finally compromised when the 22[nd] defendant had surrendered and gave 17 cents of property to the plaintiff when the disputes did not subside, with a view to purchasing peace. It has been pointed out that the legal representatives of the 22[nd] defendant surrendered five more cents of property allegedly meant for “ _surpakkavu_ ” and constructed a compound wall separating that portion from the remaining portion of the property. 7. It seems that presently the 3[rd] defendant who had already chosen to suffer all the judgments and decrees against the plaintiff as well as the other defendants is not R.S.A. 176 of 2016 -: 6 :- satisfied, and he wants to raise fresh contentions with regard to the same rights over the property by claiming that his mother had derived some right over the property. At the same time, there is absolutely nothing to show as to how his mother had obtained any right over the property. If at all there is any such right, this is not the way in which the same has to be adjudicated. The 3[rd] defendant cannot be permitted to file a second appeal for forwarding such fresh contentions or even other contentions taken by the other parties in the suit. Matters being so, this second appeal is not at all maintainable and is only to be dismissed, and I do so. In the result, this RSA is dismissed. In the nature of this appeal, the parties shall bear their respective costs. All the interlocutory applications in this appeal are closed. ## **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.