C.G. Sekharan (deceased) v. Padmavathy and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934** ## **RSA.NO. 592 OF 2004 ( )** **-----------------------------------AS.70/1999 OF ADDITIONAL SUB COURT, NORTH PARAVUR OS.455/1992 OF MUNSIFF'S COURT, NORTH PARAVUR** ## **APPELLANT(S)/APPELLANT/PLAINTIFF:** **-----------------------------------------------------------** **C.G. SEKHARAN, CHERIACHANASSERIL, PARAVOOTHARA MURI, PARAVUAR VILLAGE ERNAKULAM DISTRICT (DIED).** ## **LEGAL REPRESENTATIVES IMPLEADED:** **----------------------------------------------------------** **2. N.R. THANKAMMA, 'SREENIVAS' CHERIYACHANASSERIL HOUSE, MANNAM P.O., NORTH PARAVUR - 683 520 (WIFE).** **3. C.S. GOPI, MAYURAM, PULARI NAGAR, THITTAMANGALAM, KODUNGALLUR P.O., TRIVANDRUM (SON).** **4. C.S. REMA, KALIYATH, CHITTATTUKARA, VADAKKEKKARA P.O., NORTH PARAVUR (DAUGHTER).** **5. C.S. UMA, KALAVAMPARA, NEW LANE NORTH PARAVUR P.O. (DAUGHTR).** **6. C.S. SUMA, VADHYARUPARAMBIL, PARAVUTHARA, CHENNAMANAGALAM P.O., NORTH PARAVUR (DAUGHTER).** ## **R.S.A. No.592 of 2004** **7. C.S. SANTHILAL, 37/1492-A1, ORCHID PARK APARTMENTS, NETAJI NAGAR, KADAVANTHRA P.O., KOCHI (SON).** ## **ADDITIONAL APPELLANTS 2 TO 7 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED APPELLANT AS PER ORDER DATED 19.9.2007 IN I.A. NO.1626 OF 2007.** **BY ADVS.SRI.KALLADA K.SUKUMARAN SMT.K.VIJAYAMMA** ## **RESPONDENT(S)/RESPONDENT/DEFENDANTS:** **----------------------------------------------------------------------** **1. PADMAVATHY, W/O. KRISHNANKUTTY, PULLARKATTU VEETTIL, THURUTHIPPURAM KARA MOOTHAKUNNAM VILLAGE (DEAD).** **2. BABY, W/O. ASOKAN, VALIYAVEETTIL, CHETTIKKADU KARA, MOOTHAKUNNAM VILLAGE.** **3. KARTHIYAYANI, W/O. MADANAN, PULLARAKATTU VEETTIL, PONNURUNNI KARA, VYTTILA DESOM ERNAKULAM.** ## **BY ADVS. SRI P.N.RAMAKRISHANAN NAIR - FOR R3 SRI.P.VISWANATHAN - FOR R3** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.592 of 2004 ==================================== Dated this the 21[st] day of November, 2012** **J U D G M E N T** The Second Appeal was admitted on the following substantial questions of law: (i) Whether the decision of the Land Tribunal (for short, “the Tribunal”) evidenced by Ext.A2, operates as res judicata in the present suit against the defendants? (ii) Whether the defendants are estopped from contending that the plaintiff is not the landlord of the property in view of their admission in Ext.A2, proceedings before the Tribunal? (iii) Is the finding of the courts below that the suit is not maintainable without the junction of all the co-owners justified without framing an issue on the question of non-joinder and affording an opportunity to the plaintiff to cure the said defect? 2. The Second Appeal arises from the judgment and **R.S.A. No. 592 of 2004** -: 2 :- decree of the Munsiff's Court, North Paravur in O.S. No.455 of 1992 confirmed by the Additional Sub Court, North Paravur in A.S. No.70 of 1999. 3. The additional appellants are the legal representatives of the deceased 1[st] appellant-plaintiff. He sued the respondents for recovery of possession of the suit property - 25 cents out of the total extent of 35 cents in Sy. No.288/1C. According to the deceased 1[st] appellant, the suit property belonged in jenm to the Edayattil Tarwad wherefrom the father of the deceased 1[st] appellant took it on lease as per Ext.A1, lease deed No.451 dated 7[th] Vrischikam, 1114. According to the deceased 1[st] appellant, during the lifetime of his father, he got possession of the property and later acquired jenm right as per assignment deed No.2429 of 1120 executed by one Parukutty Amma. Thus the deceased 1[st] appellant claimed to be the absolute owner in possession of the property. It is the further case of the deceased 1[st] appellant that the 1[st] respondent moved the Tribunal claiming Kudiyiruppu. The Tribunal as per Ext.A2, order found against that claim of the 1[st] respondent. While so, there was attempt on the part of the respondents to trespass into the suit property and thereon the deceased 1[st] appellant filed O.S. No.347 of 1988 in the Munsiff's ## **R.S.A. No. 592 of 2004** ## -: 3 :- Court, North Paravur seeking a decree for prohibitory injunction. Though initially an interim order of injunction was granted, that order was vacated against which the deceased 1[st] appellant filed C.M.A. No.20 of 1988 in the Additional Munsiff's Court, North Paravur. That appeal was dismissed as not pressed. In the meantime since the respondents (allegedly) trespassed into the suit property and took possession, the deceased 1[st] appellant withdrew O.S. No.347 of 1988 with liberty to file fresh suit. Thereafter the deceased 1[st] appellant filed the present suit for recovery of possession of the suit property from the respondents. 4. Respondents 1 and 3 claimed that the deceased 1[st] appellant had no right, title, interest or possession of the suit property and that the said property was never in the possession of the deceased 1[st] appellant. They contended that the deceased 1[st] appellant has not obtained any right over the suit property as per assignment deed No.2429 of 1120. They denied that the 1[st] respondent was a kudikidappukari under the father of the deceased 1[st] appellant. 5. The trial court found, answering issues 1 and 2 that Ext.A5, judgment in O.S. No.414 of 1124 (filed by the Karanavar of Edayattil Tarwad against the deceased 1[st] appellant, predecessor- ## **R.S.A. No. 592 of 2004** ## -: 4 :- in-interest of the 1[st] respondent and others) will not confer any right for the deceased 1[st] appellant. A further finding the trial court entered in answer to issue No.3 is that in Ext.A5, judgment it was found that the deceased 1[st] appellant has not acquired any right as per document No.2429 of 1120 and that it was only an assignment deed executed by a member of the undivided Tarwad. Hence the right if any of the deceased 1[st] appellant can only be traced to Ext.A1, lease deed. The trial court further found that the deceased 1[st] appellant (consequent to the death of his father) cannot claim any exclusive right over the property and without impleading the other co-owners cannot seek recovery of possession of the property. So holding, the suit was dismissed. That was confirmed by the first appellate court. Hence this Second Appeal with the above substantial questions of law. 6. The learned counsel for the additional appellants has contended that the finding of the trial court as confirmed by the first appellate court that by Ext.A5, judgment the deceased 1[st] appellant has not acquired any right over the suit property is not correct. The learned counsel has invited my attention to the findings in Ext.A5 to contend that it is specifically found that the property was in the possession of the deceased 1[st] appellant as a ## **R.S.A. No. 592 of 2004** ## -: 5 :- lessee under Ext.A1. It is further contended that at any rate the contesting respondents cannot lay hands on the 25 cents out of the total extent of 35 cents referred to in the plaint since the claim of kudikidappu if any of the 1[st] respondent should be limited to 10 cents where the contesting respondents are residing and the remaining 25 cents must be allowed to be recovered by the appellants. The learned counsel submitted that Ext.A2, order of the Tribunal dated 16.03.1977 in O.A. No.3052 of 1971 disabled the contesting respondents from claiming any right over the suit property and at any rate the 25 cents which excluded the 10 cents where the contesting respondents are residing. It is argued by the learned counsel that the additional appellants have produced assignment deeds dated 13.01.1118, 24.02.1118, 05.04.1118 and 29.04.1120 under which the assignor of the deceased 1[st] appellant acquired jenm right over the suit property. The additional appellants have filed application under Rule 27 of Order XLI of the Code of Civil Procedure (for short, “the Code”) for reception of the said assignment deeds as additional evidence. 7. Though the Second Appeal was admitted on substantial question of law Nos.1 to 3, I am inclined to think that ## **R.S.A. No. 592 of 2004** ## -: 6 :- having heard learned counsel on both sides what is required to be answered by this Court is only substantial question of law No.(iii) in view of the legal position that emerges from the facts admitted and proved. 8. Going by the averments in the plaint it would appear that though at one stage the deceased 1[st] appellant stated that even during the lifetime of his father (a lessee under the Edayattil Tarwad) he got possession of the suit property, at another stage he claimed that he acquired right of tenancy by the law of inheritance on the death of his father. True he has also stated that Parukutty Amma acquired the suit property as per assignment deeds dated 13.01.1118, 24.02.1118, 05.04.1118 and 29.04.1120 and as per document No.2429 of 1120, the deceased 1[st] appellant acquired right over the suit property from the said Parukutty Amma. 9. It is admitted that the predecessor-in-interest of the deceased 1[st] appellant has other legal heirs as well. The question whether the deceased 1[st] appellant got possession of the suit property even during the lifetime of his father is correct or not or it is a case of consequent to the death of the father, the deceased 1[st] appellant and other legal heirs acquired right over ## **R.S.A. No. 592 of 2004** ## -: 7 :- the suit property by inheritance is to be decided in the presence of other legal heirs of the predecessor-in-interest of the deceased 1[st] appellant as well. 10. True that even one co-owner can file a suit for eviction of the trespassers. But that is in cases where the plaintiff admits that he is a co-owner and that he is seeking relief against the trespasser in his capacity as a co-owner and on behalf of the other co-owners as well. But in a case where the plaintiff asserts exclusive right over the property in whatever manner it be, and in derogation of the right of other legal heirs, the junction of other legal heirs is necessary as held in **Suhara v. Hilda Godfred** (1989 [2] KLT SN 38 Case No.46) and **Valsala v. Sundaran Nadar** (1993 [2] KLT 67). 11. In the present case even in this appeal, the deceased 1[st] appellant asserted that he has exclusive right over the property as per assignment deed No.2429 of 1120 executed by Parukutty Amma. It may be possible for the other legal heirs of the predecessor-in-interest of the deceased 1[st] appellant to claim that the acquisition of the jenm right was on behalf of them also and should enure to their benefit also. The question whether the appellant has exclusive right over the property cannot be decided ## **R.S.A. No. 592 of 2004** ## -: 8 :- without the junction of the other legal heirs of the predecessor-ininterest of the deceased 1[st] appellant. In that view of the matter the appellants cannot seek recovery of possession of the suit property from the respondents even if it is assumed that they have no conceivable right over the said property or part of it as the case may be. 12. The learned counsel for the appellants contended that the findings entered by the trial and first appellate courts based on Ext.A5, judgment that the deceased 1[st] appellant had not acquired any right over the suit property is perverse. 13. In view of the finding I have reached concerning substantial question of law No.iii, what is required is to set aside all the findings entered by the trial court as confirmed by the first appellate and remit the case to the trial court for fresh decision after impleading all the legal heirs of the predecessor-in-interest of the deceased 1[st] appellant. 14. The learned counsel submitted that consequent to the death of the original appellant, his legal representatives are impleaded and that in Ext.A5, case all the legal representatives of the predecessor-in-interest of the deceased 1[st] appellant were parties. That, those legal representatives of the deceased 1[st] ## **R.S.A. No. 592 of 2004** ## -: 9 :- appellant were parties in Ext.A5, case does not cure the defect in this suit. Moreover that is all the more the reason why those legal representatives must be made parties in the present suit as well. 15. In the light of what I have stated, I have to hold that the suit as framed without impleading all other legal heirs of the predecessor-in-interest of the deceased 1[st] appellant is not maintainable. Therefore all other findings entered by the trial and first appellate courts are liable to be set aside. Hence it is not necessary to answer substantial question of law Nos.(i) and (ii). Those questions are left open for decision at the appropriate stage. Resultantly, the Second Appeal is allowed by way of remand as under: (i) Judgment and decree of the Munsiff's court, North Paravur in O.S. No.455 of 1992 confirmed by the Sub Court, North Paravur in A.S. No.70 of 1999 are set aside. (ii) O.S. No.455 of 1992 is remitted to the Munsiff's Court, North Paravur for disposal after giving opportunity to the additional appellants to implead all the legal heirs of the ## **R.S.A. No. 592 of 2004** ## -: 10 :- predecessor-in-interest of the deceased 1[st] appellant as parties to the suit. (iii) The parties shall be given opportunity to adduce further evidence, if any in respect of the contentious issues. (iv) The Registry is directed to transmit records of the case as also all the documents produced along with the Interlocutory Applications in this Appeal to the Munsiff's Court, North Paravur forthwith. (v) The parties shall appear in the Munsiff's Court, North Paravur on 19.12.2012. (vi) Learned Munsiff, North Paravur is directed to give top priority for the disposal of O.S. No.455 of 1992 taking into account its oldness. (vii) The parties shall bear their costs. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv