A.M. Makkar and others v. A.E. Alikutty and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932** **RSA.No. 1190 of 2010()** **---------------------AS.129/2008 of SUB COURT, MUVATTUPUZHA O.S.NO.502/2004, MUNSIFF'S COURT, MUVATTUPUZHA** **....................** **APPELLANTS/APPELLANTS 1 TO 12 AND 14 TO 39/PLAINTIFFS 1 TO 12 AND 14 TO 39** **1. A.M.MAKKAR, S/O.MUHAMMED, AGED 62 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK (DIED).** **2. A.M.MEERAUMMA, D/O.MUHAMMED, AGED 73 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK (DIED).** **3. A.M.AMINAUMMA, D/O.MUHAMMED, AGED 73 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **4. A.M.FATHIMA, D/O.MUHAMMED, AGED 57 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **5. A.M.PAREETHKUNJU, S/O.MUHAMMED, AGED 62 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **6. A.M.KATHIRUMMA, D/O.MUHAMMED, AGED 53 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **7. A.E.MUHAMMED BASHEER, S/O.LATE EBRAHIM.A.V, AGED 58 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **RSA.No. 1190 of 2010 :2:** ## **8. A.E.MEERAUMMA,** **D/O.LATE EBRAHIM.A.V, AGED 58 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** ## **9. A.E.SAFIYA,** **D/O.LATE EBRAHIM.A.V, AGED 49 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **10. A.E.HINTH, S/O.LATE EBRAHIM.A.V, AGED 38 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **11. A.E.NAJEELA, D/O.LATE EBRAHIM.A.V, AGED 38 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **12. UMAPILLAI, W/O.ALIYAR, AGED 64 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **13. A.A.SHUKKOOR, S/O.ALIYAR, AGED 40 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **14. A.A.NAZEER, S/O.ALIYAR, AGED 38 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **15. A.A.AMEER, S/O.ALIYAR, AGED 34 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **16. A.A.RASHIDA, D/O.ALIYAR, AGED 44 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **17. A.A.ABIDHA, D/O.ALIYAR, AGED 42 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **18. A.A.SHEMY, D/O.ALIYAR, AGED 35 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **RSA.No. 1190 of 2010 :3:** **19. ASIYA BEEVI, W/O.ABOOBCKER, AGED 59 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **20. A.B.ANZAR, S/O.ABOOBCKER, AGED 42 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **21. A.B.SUDHEER, S/O.ABOOBCKER, AGED 35 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **22. A.B.SANIL, S/O.ABOOBCKER, AGED 37 YEARS, ARYANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **23. SHAKKEELA SHAFI, W/O.MUHAMMED SHAFI, AGED 47 YEARS, KALLUMPURAM HOUSE, PAREEKANI, OONNUKAL.** **24. RAMLA MEETHEENKUNJ, W/O.LATE MEETHEEN KUNJU, AGED 45 YEARS, THOLAMKUZHIYIL HOUSE, ERUMATHALA, NALAM MILE, ALUVA.** **25. SHAILA ABDULLA, W/O.K.M.ABDULLA, AGED 43 YEARS, THOPPIL HOUSE, KIZHAKKEKARA, MUVATTUPUZHA.** **26. A.M.SHANAVAS, S/O.A.M.MAKKAR, AGED 41 YEARS, KUDIYIL HOUSE, KAVUMKARA, MUVATTUPUZHA.** **27. A.M.NIZAR, S/O.A.M.MAKKAR, AGED 39 YEARS, KUDIYIL HOUSE, KAVUMKARA, MUVATTUPUZHA.** **28. SHAMLA KUNJUMON, W/O.KUNJUMON, AGED 37 YEARS, VELIYATHUKUDIYIL HOUSE, PERUMBAVOOR.** **29. SHANILA SHANAVAS, W/O.M.P.SHANAVAS, AGED 35 YEARS, MADATHATTU HOUSE, NEDUMBASSERY, ALUVA.** **RSA.No. 1190 of 2010 :4:** **30. JASEELA JASEER, W/O.C.J.JASEER, AGED 33 YEARS, THOPPIL HOUSE, KIZHAKKEKARA, MUVATTUPUZHA.** **31. SHIJILA ALI, W/O.T.M.ALIYAR, AGED 31 YEARS, THAIKUDIVIL HOUSE, PERUMATTOM, PUTHUPPADY, MUVATTUPUZHA. 32. K.H.KUNJU MAITHEEN, AGED 52 YEARS, THONGANALIL, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK. 33. K.H.KABEER, 48 YEARS, THONGANALIL, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK. 34. K.H.SHAMSUDHEEN, 44 YEARS, THONGANALIL, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK. 35. K.H.AZEES, 41 YEARS, THONGANALIL, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK. 36. LAILA MOOSA, AGED 50 YEARS, CHANKKUNGAL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK. 37. JASMIN IBRAHIM, 47 YEARS, CHANKKUNGAL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK. 38. SHARMY ASHARAF, 37 YEARS, THONGANALIL, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK.** **BY ADV. SRI.N.ANILKUMAR** **RESPONDENTS/RESPONDENTS AND 13TH PLAINTIFF/DEFENDANTS AND 13TH PLAINTIFF** **1. A.E.ALIKUTTY, S/O.EBRAHIM, AGED 61 YEARS, THACHALAYIL HOUSE, KAVUMKARA KARA, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **RSA.No. 1190 of 2010** **:5:** ## **2. NABEESA ALIKUTTY, W/O.A.E.ALIKUTTY,** **AGED 59 YEARS, THACHALAYIL HOUSE, KAVUMKARA KARA, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **3. A.E.NASEEMUDHEEN, S/O.LATE EBRAHIM.A.V, AGED 43 YEARS, AYRANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** ## **4. A.E.FAZILUDHEEN,** **S/O.LATE EBRAHIM.A.V, AGED 51 YEARS, AYRANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **5. A.B.ANIL, S/O.ABOOBACKER, AGED 39 YEARS, AYRANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** ## **6. A.A.SUNITHA, D/O.ALIYAR,** - **AGED 33 YEARS, AYRANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** ## **7. A.A.BASHEER, S/O.ALIYAR,** - **AGED 46 YEARS, AYRANKALYIL HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **RSA.No. 1190 of 2010** **ORDER IN I.A.NO.2874/2010 IN R.S.A.NO.1190/2010** **Closed** **Sd/S.S.SATHEESACHANDRAN** **15.11.2010** **//True Copy//** **P.A to Judge** ## **S.S.SATHEESACHANDRAN, J -------------------------------------R.S.A No.1190 OF 2010** ## **-------------------------------Dated this the 15[th] day of November 2010** ## **JUDGMENT** Appellants are the plaintiffs in a suit for declaration that a sale deed in favour of the defendants is null and void and for other consequential reliefs. In brief, the case of the plaintiffs was that the sale deed executed by one Late Amina Pillai in favour of the 1[st] defendant, in respect of 10 cents of property, is vitiated by fraud and misrepresentation. Plaintiffs claimed that they are the legal heirs of Late Amina Pillai as being the children of her brother. The 1[st] defendant along with the 2[nd] defendant resisted the suit contending that the sale deed executed by Late Amina Pillai was fully supported by consideration and the plaintiffs have no right to impeach its validity. The trial court, on the materials placed, found that the case set up by the plaintiffs for setting aside the document – sale deed - has not been made out and, further, the plaintiffs have failed to show their status as legal heirs of Late Amina Pillai to claim the reliefs raised. As against the decision rendered by the trial court dismissing the suit, the plaintiffs preferred an appeal with a petition to condone delay of 585 days. Delay in filing the appeal was challenged by the respondents filing a counter. The lower appellate court, after R.S.A No.1190 OF 2010 2 considering the merit of that cause shown, found that the inordinate delay in filing the appeal has not been satisfactorily explained, and in that view of the matter, dismissed the delay petition, with the result of rejecting the appeal. The present appeal has been filed as against the rejection of the appeal by the lower appellate court consequent to the order passed dismissing the delay petition. 2. Having regard to the conflicting views prevailing as to whether a second appeal would lie as against the rejection of a first appeal on dismissal of a delay petition, on which, the apex court has expressed divergent views in _**Chandi Prasad v. Jagdish Prasad 2004 (3) KLT 654 (S.C) and Shyam Sundar Sarma v. Pannalal Jaiswal 2005 (1) KLT 198 (S.C)**_ , it is only proper and appropriate to consider the entertainability of this appeal and receive it on file if found entertainable. 3. I heard the counsel for the appellants. In examining whether the lower appellate court was justified in dismissing the delay petition filed with the first appeal, I have also gone through the judgment rendered by the trial court in the suit to see whether the plaintiffs have atleast made out a prima facie case R.S.A No.1190 OF 2010 3 for the reliefs canvassed. It is seen the document which was sought to be set aside was a sale deed (A1) executed in the year 1988. The materials tendered by the plaintiffs indicated that Late Amina Pillai had executed several other documents in respect of her properties before and after Ext.A1 sale deed. In a subsequent sale deed (A4) executed by her, the description of property thereunder showed that she had retained some property on its western side, was the only material circumstance canvassed before the trial court to contend that Ext.A1 sale deed has not come into effect. Late Amina Pillai passed away in 2003, and the present suit was instituted in 2004, after the 1[st] defendant filed a suit against 7[th] defendant, who occupied the building in the property covered by A1 sale deed. It is conceded that the above suit was decreed in favour of the 1[st] defendant. There was no challenge against the execution of Ext.A1 sale deed till Late Amina Pillai passed away in 2003 and that she had executed other sale deeds also in respect of her properties after A1 sale deed clearly indicate that the suit had been instituted as a counter blast to the suit filed by the defendants 1 and 2 as against the 7[th] defendant. It is also seen that the plaintiffs have R.S.A No.1190 OF 2010 4 not let any evidence to substantiate the cause for condoning the delay in filing the appeal against the dismissal of the suit. The delay in filing the appeal being more than one and half years with no satisfactory explanation shown for condonation, the court below was correct in dismissing the petition for condoning delay and rejecting the appeal. This appeal is dismissed. ## **S.S.SATHEESACHANDRAN JUDGE** dmb