G. Kunjukrishnan and others v. Radakrishnan and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** **RSA NO. 131 OF 2010** **AGAINST THE DECREE AND DATED 26.08.2009 IN AS 147/2007 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM AGAINST THE DECREE AND JUDGMENT DATED 17.12.2005 IN OS 995/2004 OF II ADDITIONAL MUNSIFF COURT ,TRIVANDRUM** ## **APPELLANTS/RESPONDENTS/PLAINTIFFS 1 TO 3:** 1 G.KUNJUKRISHNAN , S/O.VADAMANICKAM,KIZHAKKUMKARA VEEDU, OOCKODE,, KALLIYOOR VILLAGE, THIRUVANANTHAPURAM. 2 G.KRISHNANKUTTY, (DIED) SO.VEDAMANICKAM, KIZHAKKUMKARA VEEDU, OOCKODE, KALLIYOOR, VILLAGE, THIRUVANANTHAPURAM. (THE DEATH OF THE 2ND APPELLANT IS RECORDED AS PER THE ORDER DATED 04.03.2016 IN MEMO VIDE C.F.586/2016 DATED 21.01.2016) (APPELLANTS 1 AND 3 AND RESPONDENTS 1 TO 4 ARE RECORDED AS THE LHR'S OF DECEASED 2ND APPELLANT AS PER THE ORDER DATED 04.03.2016 ON THE VERIFIED AFFIDAVIT VIDE CF.NO.586/2016 DATED 21.01.2016). 3 LEELA, D/O. BHAGAVATHI KIZHAKKUMKARA VEEDU, OOCKODE, KALLIYOOR VILLAGE,, THIRUVANANTHAPRUAM. BY ADV SRI.POOVAPALLY M.RAMACHANDRAN NAIR SRI.ABISHEK R.V. ## **RESPONDENTS/APPELLANTS/DEFENDANTS 1 TO 4:** 1 RADHAKRISHNAN S/O.V.JOSHWA,KIZHAKKUMKARA MELEVILA VEEDU,, OOCKODE KALLIYOOR VILLAGE, THIRUVANANTHAPURAM **RSA NO.131 of 2010** **2** 2 NIRMALA, D/O.ELEY, KIZHAKKUMKARA MELEVILA VEEDU, OOCKODE, KALLIYOOR VILLAGE,, THIRUVANANTHAPRUAM. 3 BEENA, D/O.ELEY, KIZHAKKUMKARA MELEVILA VEEDU, OOCKODE, KALLIYOOR VILLAGE,, THIRUVANANTHAPURAM. 4 JOY, S/O.JOSHWA, KIZHAKKUMKARA MELEVILA VEEDU, OOCKODE, KALLIYOOR VILLAGE,, THIRUVANANTHAPURAM. BY ADVS. SRI.T.H.ABDUL AZEEZ SRI.B.AMANULLA THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RSA NO.131 of 2010** **3** ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No. 131 of 2010 --------------------------------------------- Dated this the 10[th] day of January, 2022 ## **JUDGMENT** The plaintiffs in O.S.No.995/2004 on the file of the II-Additional Munsiff's Court, Thiruvananthapuram, are the appellants. Defendants are the respondents. 2. Material facts relevant for the adjudication of this appeal are briefly narrated below:- 2.1 The plaint schedule property originally belonged to Shri.Vedamanickam. Plaintiffs are the issues of Vedamanickam. Defendants are the legal heirs of Shri.Joshwa, the son of Late Vedamanickam. 2.2. On 05.10.1956, Sri. Vedamanickam executed a gift deed in respect of the plaint schedule property (Ext.A1) in favour of Nemom Gramaseva Kshetra Samithi, for conducting a leather industry with a stipulation that if the industry ceased to function or shifted, the properties would automatically revert to the donor or his legal heirs. It was **RSA NO.131 of 2010** **4** also recited in Ext.A1 gift deed that the property should not be alienated without the consent of the plaintiffs' father. The leather industry run by Nemom Gramaseva Kshetra Samithi, the donor in Ext.A1, ceased functioning. 2.3. The case of the plaintiffs is that consequent to the cessation of the functioning of the leather industry, the plaint schedule property, in view of the above referred stipulations in Ext.A1, reverted to the legal heirs of late Vedamanickam. So, the plaintiffs prayed for partition of the plaint schedule property, impleading the legal representatives of Joshwa, one of the sons of Vedamanickam. The defendants raised the contention that the property is in their exclusive possession, and they have perfected title over the property by adverse possession. The Nemom Gramaseva Kshetra Samithi was not impleaded as a party in the suit. 2.4. The Trial Court decreed the suit. The plaint schedule property was directed to be partitioned allotting a 3/4th share to the plaintiffs. 2.5. The defendants challenged the decree and judgment of the Trial Court by filing A.S.No.147/2007 before **RSA NO.131 of 2010** **5** the District Court, Thiruvananthapuram. The Additional District Court-I, the First Appellate Court, set aside the decree and judgment of the Trial Court holding that the suit was hit by non-joinder of necessary parties. 3. The plaintiffs are in appeal before this Court, invoking Section 100 of the CPC. 4. On 04.02.2010, this Court admitted the appeal on the following substantial question of law: “(i) When no issues were raised as related to the non-inclusion of a third party in the suit, whether the Appellate Court is justified in framing a fresh point on that ground.” 5. Heard Sri. Poovappally M. Ramachandran Nair, the learned counsel for the appellants and Sri.T.H.Abdul Azeez, the learned counsel appearing for the respondents/defendants. 6. The short question that falls for consideration is whether the finding of the First Appellate Court that the suit is hit by non-joinder of necessary parties is legally sustainable. **RSA NO.131 of 2010** **6** 7. The plaint schedule property originally belonged to Late Vedamanickam, who executed a gift deed in respect of it in favour of Nemom Gramaseva Kshethra Samithi by way of Ext.A1. The parties in the suit are the legal representatives of late Vedamanickam, the donor in Ext.A1 gift deed. Admittedly, the donee, Nemom Gramaseva Kshethra Samithi, has not been made a party. The First Appellate Court held that the Samithi, the donee, is a necessary party. The relevant portion of the impugned judgment is extracted below:- “Ext A1 document stands in the name of a third person and the document is seen executed in the name of M.G. Neelakantan Nair as the President of Nemom Gramaseva Kshethra Samithi. So the registered document/ gift deed stands in the name of Nemom Gramaseva Kshethra Samithi. They were not made as parties to the suit and without making them as parties to the suit, the LRs of the executant of gift deed themselves came to the court with a suit of this nature and claimed themselves that the leather factory came to an end and business therein closed and as such the property came back to their hands. The said contention cannot be accepted even for a moment without hearing the beneficiary under Ext. A1 gift deed so long as they have the right to conduct leather business in the property and continue to hold the property as per the provisions contained in the gift deed. Since the abovesaid beneficiary under ExtA1 document is not made a party to **RSA NO.131 of 2010** **7** the suit their claim cannot be allowed and cannot be adjudicated without the juncture of the beneficiary under the gift deed. The learned counsel appearing for the appellant submitted that the Nemom Gramaseva Kshethra Samithi has not been made as a party because of the reason that no such Kehsthra Samithi is now in existence. I could not agree with the said contention raised by the appellants simply because of the reason that Ext A1 gift deed was executed in favour of Nemom Gramaseva Kshethra Samithi as early as in the year 1956 and the gft deed was accepted by the beneficiary and admittedly they were conducting leather business in the said property. Permission was also granted to construct a building in that property for the purpose of conducting leather business by the abovesaid Nemom Gramaseva Kshethra Samithi.” 8. As Ext.A1 gift deed has taken effect, with the acceptance of the same by the donee, Nemom Gramaseva Kshethra Samithi, is a necessary party. In the absence of the Samithi in the party array, no effective adjudication of the lis is possible. No effective decree can be passed without Nemom Gramaseva Kshethra Samithi in the party array. Therefore, the finding of the First Appellate Court requires no interference. 9. The learned counsel for the appellants submitted that when the First Appellate Court found that there had not **RSA NO.131 of 2010** **8** been effectual adjudication of the lis due to the non-joinder of the necessary party, an opportunity should have been given to the appellants to cure the defect. 10. An order of re-trial after remand may be made in exercise of the inherent jurisdiction of the Court where the Court of appeal is satisfied that there has been no proper trial or complete or effectual adjudication of the proceeding and the party complaining of the error or omission or irregularity has suffered material prejudice on that account. Such an order may also be made to prevent abuse of process of Court. In exceptional circumstances, where there has been no real trial of the proceedings or where allowing the order or judgment to stand would result in abuse of the process of Court, the Appellate Court can remand the matter for re-trial (vide: **Shankararamiah A. v. M.S. Lakshminarayanamoorthi and others** [2016 (5) KHC 87]. 11. In the instant case, this Court is of the view that there had not been a proper trial of the proceedings as the donee in Ext.A1 has not been made a party in the proceedings. Therefore, to do complete justice to the parties, this Court is of the view that the matter be remitted back to **RSA NO.131 of 2010** **9** the Trial Court for trial afresh after affording an opportunity to the parties to implead necessary parties. 12. In the result, the Regular Second Appeal is allowed. The decree and judgment passed by the Courts below are set aside. The original suit is remitted back to the Trial Court for trial afresh. The plaintiffs are at liberty to make applications to implead the Nemom Gramasevaka Kshethra Samithi or any other necessary persons to be parties in the proceedings. The parties are directed to appear before the Trial Court on 09.03.2022. They are directed to bear their respective costs. Pending interlocutory applications, if any, stand closed. **Sd/K.BABU JUDGE** VPK