Kovval Ahamed Haji v. Sheshagiri Mallya and others (RFA 679/2016; connected matters)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945** **RFA NO. 679 OF 2016 (H)** **AGAINST THE ORDER DATED 06.10.2016 IN IA NO.201/2016 IN FDIA 467/2015 IN OS NO.122 OF 1986 OF SUB COURT, KASARAGOD** **-----** ## **APPELLANT IN RFA – RESPONDENT NO.12 IN IA:** **KOVVAL AHAMMED HAJI, S/O.MOHAMMED HAJI, RESIDING AT KOVVAL HOUSE, CHATTANCHAL P.O., THEKKIL, KASARAGODE TALUK, PIN: 671 541, REPRESENTED BY POWER OF ATTOREY MOHAMMED KUNHI KOVVAL.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN ANCHAL SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** ## **RESPONDENTS IN RFA/PETITIONERS, RESPONDENT NO.1 AND RESPONDENTS** **3 TO 11 IN IA:** **1 SHESHAGIRI MALLYA, AGED 74 YEARS, S/O.LATE PANDURANGA MALLAYA, RESIDING AT FLAT NO.2, 47/41/WEST AVENUE, PUNJABI BAGH, NEW DELHI 110 026.** - **2 K.RADHAKRISHNA MALLAYA, AGED 64 YEARS,** **LATE PANDURANGA MALLAYA, RESIDING AT 474, EAST END ROAD, 9TH BLOCK, JAYANAGAR, BANGALORE 560 069.** **RFA NO. 679 OF 2016 -2-** - **3 K.MANOHARA MALLYA, AGED 62,** **LATE PANDURANGA MALLAYA, RESIDING AT 473, EAST END ROAD, 9TH BLOCK, JAYANAGAR, BANGALORE 560 069.** **4 K.RAMESHA MALLYA, AGED 58, S/O LATE PANDURANGA MALLAYA, RESIDING AT 474, EAST END ROAD, 9TH BLOCK, JAYANAGAR, BANGALORE 560 069.** **5 K.SANDEEP MALLYA, AGED 44, LATE PANDURANGA MALLAYA, RESIDING AT FLAT NO.2, 47/41/WEST AVENUE, PUNJABI BAGH, NEW DELHI 110 026.** **6 K.RAMANANDA MALLYA, AGED 68, S/O.K.PANDURANGA MALLYA, TILAK MAHAL COMPOUND, MANNAGUDDE, MANGALORE, PRESENTLY RESIDING AT FLAT NO.304, AMARIS HEIGHTS, KHANGMENT, AYYAPPA SOCIETY, MADHARPUR, HYDRABAD - 500 081.** **7 ABDUL RAHIMAN @ HAIDAR HAJI, AGED 66, HASSAINAR MAMMUNHI, RESIDING AT CHERUMBA OF PANIYAL VILLAGE, HOSDURG TALUK, KASARAGOD - 673 138.** **8 FAISAL, AGED 42, S/O.ABDUL RAHIMAN @ HAIDAR HAJI, RESIDING AT CHERUMBA OF PANIYAL VILLAGE, HOSDURG TALUK, KASARAGOD - 671 318.** **9 ABDUL RAHIMAN, AGED 71, S/O.T.B.ABDULLA HAJI, RESIDING AT MUSHRATH ROAD, THALANGARA VILLAGE AND POST, KASARGOD TALUK, KARASARAGOD - 671 122.** **RFA NO. 679 OF 2016 -3-** **10 S.H.NOORUNISSA, AGED 59, W/O.ABDUL RAHIMAN, RESIDING AT MUSHRATH ROAD, THALANGARA VILLAGE AND POST, KASARAGOD TALUK, KASARAGOD 671 122.** **11 NOORISHA SHANAWAZ, AGED 37, D/O.ABDUL RAHIMAN RESIDING AT MUSHRATH ROAD, THALANGARA VILLAGE AND POST, KASARAGOD TALUK, KASARAGOD 671 122. 12 AYISHATH MUNNER, AGED 41, D/O.ABDUL RAHIMAN, RESIDING AT MUSHRATH ROAD, THALANGARA VILLAGE AND POST, KASARAGOD TALUK, KASARAGOD 671 122.** **13 T.H.MOHAMMED, AGED 75, S/O.IBRAHIM HAJI, RESDING AT KOLLAMBADI OF KASARAGOD, KASABA VILLAGE, KASARAGOD TALUK, KASARAGOD - 671 121. 14 K.M.ZAINUDDEEN, AGED 72, S/O.T.P.MOHAMMEDKUNHI, RESIDING AT KOLLAMBADI, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK, KASRAGOD - 671 121.** **RFA NO. 679 OF 2016 -4-** **15 M.ABBAS, AGED 81, S/O.ABDULLA, RESIDING AT KUNNIL HOUSE, PALLIKKERE VILLAGE, HOSDURG TALUK, KASARAGOD - 671 316.** **BY ADVS. SRI.ASHWIN SATHYANATH, R1, R3 TO R6 SRI.JOSON MANAVALAN, R2 SRI.T.KRISHNANUNNI SR., R1, R3 TO R6 SRI.M..GOPIKRISHNAN NAMBIAR, R2 SRI.K.JOHN MATHAI, R2 SRI.P.BENNY THOMAS, R2 SRI.P.GOPINATH, R2 SRI.KURYAN THOMAS, R2** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 04.03.2024, ALONG WITH CRP.509/2017, RFA 168/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945** ## **CRP NO. 509 OF 2017** **AGAINST THE ORDER DATED 11.08.2017 IN F.D.I.A. NO.467 OF 2015 IN OS NO.122 OF 1986 OF SUB COURT, KASARAGOD** **-----** **PETITIONER/RESPONDENT NO.15 IN FDIA/SUPPL. DEFENDANT NO.18 IN OS:** **KOVVAL AHAMED HAJI, AGED 56,S/O. RAHIMAN KOVVAL, RESIDING AT KOVVAL HOUSE, CHATTANCHAL, P.O THEKKIL,KASARAGOD TALUK & DISTRICT 671 541, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MOHAMMED KUNHI KOVVAL, AGED 52, S/O. ABDUL RAHIMAN KOVVAL.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN ANCHAL SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 14/PLAINTIFF & LRS OF** ## **D1 & D2 TO D6, D8 TO D16:** **1 K.RAMANANDA MALLAYA, AGED 69,S/O.LATE K. PANDURANGA MALLYA,HINDU, LAND HOLDER, RESIDING AT TILAK MAHAL COMPOUND,MANAGUDDE, MANGALORE, NOW RESIDING AT FLAT NO. 304,AMARIS HEIGHTS, KHANGMAT,AYYAPPA SOCIETY, MADHAPUR, HYDERABAD 500 081.** **CRP NO. 509 OF 2017 -2-** - **2 K. SHESHAGIRI MALLYA,** - **S/O. LATE K PANDURANGA MALLYA,AGED 75,RESIDING AT FLAT NO.2,47/41/WEST AVENUE PUNJABI BHAG,NEW DELHI 110 001.** - **3 K.RADHAKRISHNAN MALLYA, AGED 65, S/O.LATE K. PANDURANGA MALLYA, RESIDING AT 474,EAST END ROAD, JAYANAGAR,BANGALORE 560 069.** - **4 K. MANOHARA MALLYA, AGED 63, S/O. LATE K. PANDURANGA MALLYA,RESIDING AT 473,EAST END ROAD, JAYANAGAR, BANGALORE 560 069.** - **5 K. RAMESHA MALLYA,** **S/O. LATE K. PANDURANGA MALLYA,AGED 59,RESIDING AT FLAT NO.474,EAST END ROAD, 9TH BLOCK, JAYA NAGAR, BANGALORE-69.** - **6 K.SANDEEPA MALLYA, AGED 45,S/O. LATE K PANDURANGA MALLYA, RESIDING AT FLAT NO.2,47/41/WEST AVENUE,PUNJABI BHAG, NEW DELHI 110 001.** - **7 ABDUL RAHIMAN HAIDAR HAJI, AGED 67, S/O. HASSAINAR MAMMUNHI, RESIDING AT CHERUMBA OF PANAYAL VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT 671 318.** - **8 FAISAL,** **AGED 43, S/O. ABDUL RAHIMAN @ HAIDAR HAJI,RESIDING AT CHERUMBA OF PANAYAL VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT 671 318.** **9 ABDUL RAHIMAN, AGED 72,S/O. T.H ABDULLA HAJI, RESIDING AT MUSRATH ROAD, THALANKARA VILLAGE, KASARAGOD TALUK, POST & DISTRICT,PIN 671 121.** ## **10 S.H NOORUNISSA,** - **AGED 60,W/O. ABDUL RAHIMAN,RESIDING AT MUSRATH ROAD, THALANKARA VILLAGE,KASARAGOD TALUK, POST & DISTRICT, PIN 671 121.** **CRP NO. 509 OF 2017 -3-** **11 NOORISHA SHANAWAS, AGED 38,D/O.ABDUL RAHIMAN,RESIDING AT MUSRATH ROAD, THALANKARA VILLAGE,KASARAGOD TALUK, POST & DISTRICT, PIN 671 121.** **12 AYISHATH MUNEER, AGED 42,D/O.ABDUL RAHIMAN,RESIDING AT MUSRATH ROAD, THALANKARA VILLAGE,KASARAGOD TALUK, POST & DISTRICT, PIN 671 121.** **13 T.H MOHAMMAD, AGED 76,S/O. IBRAHIM HAJI, RESIDING AT KOLLAMBADI, KASBA VILLAGE, KASARAGOD TALUK, POST AND DISTRICT 671 121.** **14 K.M ZAINUDDIN, S/O. T.P MOHAMMADKUNHI,AGED 73,RESIDING AT KOLLAMBADI,KASARAGOD KASBA VILLAGE, KASARAGOD TALUK, P.O AND DISTRICT KASARAGOD 671 001.** **15 M. ABBAS, AGED 82,S/O. ABDULLA, RESIDING AT KUNNIL HOUSE, PALLIKKARA VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT 671 314.** **BY ADVS.** **SRI.M..GOPIKRISHNAN NAMBIAR (CAVEATOR) SRI.ASHWIN SATHYANATH SRI.P.GOPINATH SRI.JOSON MANAVALAN SRI.T.KRISHNANUNNI SR. SRI.KURYAN THOMAS SMT.M.R.MINI SMT.MEENA.A. SRI.SAJU.S.A SRI.VINOD RAVINDRANATH SRI.VINAY MATHEW JOSEPH** **THIS CIVIL REVISION PETITION HAVING COME UP FOR HEARING ON 04.03.2024, ALONG WITH RFA.679/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945** **RFA NO. 168 OF 2018** **AGAINST THE ORDER DATED 28.02.2018 IN FDIA 467/2015 IN OS NO.122 OF 1986 OF SUB COURT, KASARAGOD** **-----** ## **APPELLANT IN RFA/RESPONDENT NO.15 IN FDIA/DEFENDANT NO.18 IN** **SUIT:** **KOVVAL AHAMAD HAJI, KOVVAL HOUSE,CHETTANCHAL, THEKKIL VILLAGE AND POST,KASARAGOD TALUK AND DISTRICT-671 541 THROUGH POWER OF ATTORNEY HOLDER,SHRI MOHAMMED KUNHI KOVVAL, AGED 58, S/O.ABDUL RAHIMAN KOVVAL,RESIDING AT KOVVAL HOUSE, CHETTANCHAL,THEKKIL VILLAGE & POST, KASARAGOD-671 541.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** ## **RESPONDENTS IN RFA/PETITIONER & RESPONDENTS 1 TO 14 IN FDIA/ PLAINTIFF & DEFENDANTS 2 TO 16, D8 TO D16 IN SUIT:** **1 K.RAMANANDA MALLYA, AGED 70 YEARS, S/O.(LATE) K. PANDURANGA MALLYA,HINDU, LAND HOLDER, RESIDING AT TILAK MAHAL** **COMPOUND,MANAGUDDE,MANGALORE, NOW RESIDING AT FLAT NO. 304, AMARIS HEIGHTS,KHANGMET, AYYAPPA SOCIETY,MADHAPUR, HYDERABAD-500 081.** **RFA NO. 168 OF 2018 -2-** - **2 K. SHESHAGIRI MALLYA, SO. LATE K. PANDURANGA MALLYA, AGED 76,** - **RESIDING AT NO.2, 47/41/WEST AVENUE PUNJABI BHAG, NEW DELHI- 110 001.** - **3 K. RADHAKRISHNA MALLYA,** **AGED 66,S/O. LATE K. PANDURANGA MALLYA,RESIDING AT 474, EAST END ROAD, 9TH BLOCK, JAYANAGAR, BANGALORE-560 069.** - **4 K. MANOHARA MALLYA, AGED 64, S/O. LATE K. PANDURANGA MALLYA, RESIDING AT 473, EAST END ROAD, 9TH BLOCK, JAYANAGAR, BANGALORE-560 069.** - **5 K. RAMESHA MALLYA, S/O. LATE K. PANDURANGA MALLYA,AGED 59,RESIDING AT FLAT NO. 474,EAST END ROAD, 9TH BLOCK, JAYANAGAR, BANGALORE-69.** **6 K. SANDEEPA MALLYA, AGED 46,S/O. K. SHESHAGIRI MALLYA, RESIDING AT FLAT NO. 2, 47/41/WEST AVENUE, PUNJABI BHAG, NEW DELHI- 110 001.** **7 ABDUL RAHIMAN @ HAIDAR HAJI, AGED 68,S/O. HASSAINAR MAMMUNHI,RESIDING AT CHERUMBA OF PANAYAL VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT-671 318.** - **8 FISAL, AGED 44, S/O. ABDUL RAHIMAN @ HAIDAR HAJI,RESIDING AT CHERUMBA OF PANAYAL VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT 671 318.** **9 ABDUL RAHIMAN, AGED 73, S/O. T.B ABDUL HAJI,RESIDING AT MUSRATH ROAD,THALANKARA VILLAGE,KASARAGOD TALUK,POST & DISTRICT, PIN-671 121.** **RFA NO. 168 OF 2018 -3-** - **10 S.H NOORUNISSA,** **AGED 61,W/O. ABDUL RAHIMAN,RESIDING AT MUSRATH ROAD, THALANKARA VILLAGE,KASARAGOD TALUK, POST & DISTRICT, PIN- 671 121.** **11 NOORISHA SHANAWAS, AGED 39, D/O. ABDUL RAHIMAN, RESIDING AT MUSRATH ROAD, THALANKARA VILLAGE,KASARAGOD TALUK, POST & DISTRICT,PIN-671 121.** - **12 AYISHATH MUNEER, AGED 43, D/O. ABDUL RAHIMAN,RESIDING AT MUSRATH ROAD, THALANKARA VILLAGE,KASARAGOD TALUK, POST & DISTRICT. PIN-671 121.** **13 T.H MOHAMMAD, AGED 77,S/O. IBRAHIM HAJI,RESIDING AT KOLLAMBADI, KASBA VILLAGE,KASARAGOD TALUK, POST AND DISTRICT-671 121.** - **14 K.M ZAINUDDIN, S/O. T.P MOHAMMADKUNHI,AGED 74, RESIDING AT KOLLAMBADI, KASARAGOD KASBA VILLAGE,KASARAGOD TALUK,POST AND DISTRICT: KASARAGOD-671 121.** **15 M. ABBAS, AGED 83, S/O. ABDULLA,RESIDING AT KUNAIL HOUSE, PALLIKKARA VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT-671 121.** ## **RFA NO. 168 OF 2018 -4-** **BY ADVS. SRI.K.C.KIRAN, R1 SRI.M..GOPIKRISHNAN NAMBIAR, R2 TO R6 SRI.K.JOHN MATHAI, R2 TO R6 SMT.M.R.MINI, R1 SRI.JOSON MANAVALAN, R2 TO R6 SRI.VINOD RAVINDRANATH, R1 SMT.MEENA.A., R1 SRI.KURYAN THOMAS, R2 TO R6 SRI.P.GOPINATHAN, R2 TO R6** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 04.03.2024, ALONG WITH RFA.679/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945** **OP(C) NO. 2704 OF 2017** ## **PETITIONER/RESPONDENT NO.15/SUPPL. DEFENDANT NO.18:** **KOVVAL AHAMED HAJI, AGED 56, S/O RAHIMAN KOVVAL RESIDING AT KOVVAL HOUSE, CHATTANCHAL, P.O. THEKKIL, KASARAGOD TALUK & DISTRICT671541 THROUGH HIS POWER OF ATTORNEY HOLDER, MOHAMMED KUNHI KOVVAL, AGED 52.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN ANCHAL SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 14/PLAINTIFF & LRS OF** **D1 & D2 TO D6, D8 TO 16:** - **1 K. RAMANANDA MALLYA,** **AGED 69, S/O LATE K.PANDURANGA MALLYA, HINDU, LAND HOLDER, RESIDING AT TILAK MAHAL COMPOUND, MANAGUDDE, MANGALORE, NOW RESIDING AT FLAT NO.304, AMARIS HEIGHTS, KHANGMAT, AYYAPPA SOCIETY, MADHAPUR, HYDERABAD-500081.** - **2 K. SHESHAGIRI MALLYA,** **S/O LATE K.PANDURANGA MALLYA, AGED 75, RESIDING AT FLAT NO.2, 47/41/WEST AVENUE PUNJABI BHAG, NEW DELHI-110001.** **OP(C) NO. 2704 OF 2017 -2-** ## **3 K. RADHAKRISHNA MALLYA,** **AGED 65, S/O LATE K.PANDURANGA MALLYA, RESIDING AT 474, EAST END ROAD, JAYANAGAR, BANGALORE-560069.** - **4 K. MANOHARA MALLYA, AGED 63, S/O LATE K.PANDURANGA MALLYA, RESIDING AT 473, EAST END ROAD, JAYANAGAR, BANGALORE-560069.** - **5 K. RAMESHA MALLYA, S/O LATE K.PANDURANGA MALLYA, AGED 59, RESIDING AT FLAT 474, EAST END ROAD, 9TH BLOCK, JAYA NAGAR, BANGALORE-69.** - **6 K. SANDEEPA MALLYA,** **AGED 45, S/O LATE K.PANDURANGA MALLYA, RESIDING AT FLAT NO.2,47/41/WEST AVENUE, PUNJABI BHAG, NEW DELHI-110001.** - **7 ABDUL RAHIMAN @ HAIDAR HAJI, AGED 67, S/O HASSAINAR MAMMUNHI,RESIDING AT CHERUMBA OF PANAYAL VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT-671318.** - **8 FAISAL,** **AGED 43, S/O ABDUL RAHIMAN @ HAIDAR HAJI,RESIDING AT CHERUMBA OF PANAYAL VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT-671318.** **9 ABDUL RAHIMAN, AGED 72, S/O T.H.ABDULLA HAJI,RESIDING AT MUSRATH ROAD, THALANKARA VILLAGE, KASARAGOD TALUK, POST & DISTRICT, PIN-671121.** - **10 S.H.NOORUNISSA,** **AGED 60, W/O ABDUL RAHIMAN,RESIDING AT MUSRATH ROAD, THALANKARA VILLAGE, KASARAGOD TALUK, POST & DISTRICT, PIN-671121.** **OP(C) NO. 2704 OF 2017 -3-** **11 NOORISHA SHANAWAS, AGED 38, D/O ABDUL RAHIMAN,RESIDING AT MUSRATH ROAD, THALANKARA VILLAGE, KASARAGOD TALUK, POST & DISTRICT, PIN-671121.** **12 AYISHATH MUNEER, AGED 42, D/O ABDUL RAHIMAN,RESIDING AT MUSRATH ROAD, THALANKARA VILLAGE, KASARAGOD TALUK, POST & DISTRICT, PIN-671121.** **13 T.H.MOHAMMAD, AGED 76, S/O IBRAHIM HAJI,RESIDING AT KOLLAMBADI, KASBA VILLAGE,KASARAGOD TALUK, POST AND DISTRICT-671121.** **14 K.M. ZAINUDDIN, S/O T.P. MOHAMMADKUNHI,AGED 73, RESIDING AT KOLLAMBADI, KASARAGOD KASBA VILLAGE,KASARAGOD TALUK, PO AND DISTRICT KASARAGOD -671001.** **15 M. ABBAS, AGED 82, S/O ABDULLA,RESIDING AT KUNNIL HOUSE, PALLIKKARA VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT-671314.** **BY ADVS. SRI.VINOD RAVINDRANATH SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SMT.MEENA.A. SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.K.JOHN MATHAI SRI.PAULOSE C. ABRAHAM** **THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 04.03.2024, ALONG WITH RFA.679/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. Nos.679 of 2016, 168 of 2018, O.P.(C) No.2704 of 2017 & C.R.P. No.509 of 2017 = = = = = = = = = = = = = = = = = = Dated this the 4[th ] day of March, 2024** ## **J U D G M E N T** Additional 18[th] defendant in a suit for partition is before this Court in these proceedings. 2. The plaint schedule as it originally stood, consists of two items of properties viz. 9 cents in RS 89/4 and 79 cents in RS 94/4. The extent was subsequently brought down and the dispute that survives is only with regard to a lesser extent which is described as the ‘X’ schedule to the written statement of defendants 10 to 13. 3. The property belonged to one Seshu Mallya under Ext.A2 Sale Deed of the year 1923 and Ext.A3 Sale Deed of the year 1928. Since he did not have any children he adopted a son K.Panduranga Mallya. Seshu Mallya died in the year 1933. In the year 1958 one Sulochana Bai, wife RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 2 :- of C.V.Kamath, filed a suit against Panduranga Mallya as OS 8/58 before the Sub Court, Kasaragod for realisation of money. The suit was decreed. The decree was executed in EP 28/1966 wherein the plaint schedule property was attached and brought to sale. It was purchased in auction by C.V.Kamath on 16.09.1974. The sale was confirmed on 04.11.1974 and Ext.A7 sale certificate was issued on 08.11.1974. The property was delivered over. The 7[th] defendant and one Muthappa obtained purchase certificates in respect of portions of the property. The purchase certificates are void having been obtained by fraud. The plaint schedule property is the family property of Panduranga Mallya. The parties belong to Hindu Mithakshara Joint Family. The first defendant is the wife of Panduranga Mallya. The plaintiff and defendants 2 to 5 are the sons. The sixth defendant is the son of the second defendant. The sons of Panduranga RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 3 :- Mallya have 1/7[th] share over the property. Defendants 8 and 9 are the assignees of the 7[th] defendant. Muthappa purported to convey his rights to one Sreedharan under Ext.B2, and Sreedharan in turn executed Exts.B3 to B6 conveyances in favour of defendants 10 to 13. 18[th] defendant was impleaded on 04.08.2011 as pendente lite transferee from defendants 10 to 13. The suit was filed for partition of 1/7[th] share out of the plaint schedule property, and for recovery of possession. 4. Pending the suit, a compromise was entered into between the plaintiff and defendants 1 to 6 on the one hand, and defendants 8 and 9 on the other whereby the claim over 13 cents in respect of which the 7[th] defendant had obtained purchase certificate was given up. 5. Defendants 10 to 13 claimed title over 49 cents described in 'X' schedule to the written statement RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 4 :- tracing title to the purchase certificate obtained by Muthappa and Ext.B2 assignment by Muthappa to Sreedharan from whom they got assignment. 6. The trial court dismissed the suit as per judgment dated 09.08.1994. The plaintiff preferred AS 172/1995 before this Court. As per judgment dated 17.03.2009, this Court held that the properties are coparcenary properties. It was also held that Ext.B1 order of the Land Tribunal is null and void. The suit was remanded back to the trial court with a direction to refer the issue of fixity of tenure raised by defendants 10 to 13 to the Land Tribunal. 7. After remand, on the reference by the trial court under Section 125(3) of the Kerala Land Reforms Act, the Land Tribunal on 25.02.2011 negatived the claim of tenancy and held that Muthappa was only a building tenant. RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 5 :- 8. Thereafter, the plaintiff and defendants 1 to 6 filed a compromise petition in respect of the 49 cents described in the 'X' schedule to the written statement filed by defendants 10 to 13 over which they claimed rights under Muthappa. However, the petition was dismissed on 31.03.2012. Thereafter the trial court as per judgment dated 31.07.2012 dismissed the suit holding that the defendants have perfected title by adverse possession and limitation. 9. Challenging the decree the plaintiff approached this Court in RFA 749/2012. As per judgment dated 17.06.2015, this Court allowed the appeal and passed a preliminary decree declaring the 1/7[th] share of the plaintiff over the 'X' schedule in the written statement of defendants 10 to 13. 10. Pursuant thereto the plaintiff filed FDIA 467/2015 before the trial court, for passing a final RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 6 :- decree in terms of the preliminary decree passed by this Court. 11. Defendants 2 to 6 filed an application as IA 201/2016 seeking a supplementary preliminary decree by dividing the property into six equal shares and allotting one share to the plaintiff and remaining 5 shares to defendants 2 to 6. It was for the reason that the first defendant is no more and therefore, plaintiff and defendants 2 to 6 are entitled to 1/6 shares each. On 06.10.2016 the court passed a supplementary preliminary decree allotting 1/6 shares to plaintiff and remaining 5/6 shares jointly to defendants 2 to 6. The supplementary preliminary decree is under challenge in RFA 679/2016. 12. Pending the appeal, the plaintiff approached the trial court by filing IA 356/2016 seeking to amend the final decree application stating that there has RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 7 :- occurred mistake in the calculation of shares. Defendants 2 to 6 filed IA 364/2016 to amend their supplementary preliminary decree application IA 201/2016 which was filed for correcting the shares and was allowed by the Court. They also filed IA 365/2016 for making consequent corrections in the decretal portion of the supplementary preliminary decree, which was challenged and pending before this Court in RFA 679/2016. Defendants 10 to 13 who are the assignors of the present appellant/petitioner filed IA 366/2016 to recall the order in IA 201/2016 passing a supplementary preliminary decree. 13. The trial court allowed the applications for correction filed by the plaintiff and defendants 2 to 6 viz. IA Nos.356/2016, 364/2016, 365/2016. The application filed to recall the supplementary preliminary decree(IA 366/2016) was dismissed. The said RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 8 :- orders are under challenge in OP(C) No.2704/2017. 14. Before the trial court, the appellant/ petitioner herein who is the supplementary 18[th] defendant had objected to the maintainability of the final decree application. The court overruled the challenge against the maintainability. The said order is under challenge in C.R.P No.509/2017. 15. Followed by the corrected preliminary decree, the court passed a final decree. The same is under challenge in RFA 168/2018. 16. I have heard Sri.P.B.Krishnan, the learned counsel for the appellant-petitioner and Sri.T. Krishnanunni, the learned Senior Counsel and Sri.M. Gopikrishnan Nambiar, the learned counsel for the contesting respondents. RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 9 :- ## 17. The points that arises for determination are :- “ _(i) Does the appellant-petitioner-18[th] defendant has the locus standi to challenge the judgment and orders impugned in these proceedings?_ _(ii) Is the suit for partition maintainable in the light of the provisions contained in Order XXI Rule 97 to 103 of the Code of Civil Procedure ?_ _(iii) Is the suit bad for non-joinder of necessary parties?_ _(iv) Is the application for supplementary preliminary decree filed before the trial court at variance from the preliminary decree passed by this Court in RFA 749/2012 maintainable in the absence of any event occurring after the passing of preliminary decree by this Court ?_ 18. Sri.P.B.Krishnan, the learned counsel for the appellant/petitioner raised contentions at points 2 to 4 above. Various precedents were relied on by the learned counsel to contend that the suit is not maintainable, that the suit is bad for non-joinder of necessary parties and that the trial court could not have passed RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 10 :- supplementary preliminary decree at variance from the preliminary decree that was passed by this Court. The respondents on the other hand contended that, the appellant is not a “person aggrieved” entitled to challenge the decree and orders of the trial court. 19. In the nature of the contentions raised by the respondents, it is necessary to advert to the contention whether the appellant/petitioner is “a person aggrieved” entitled to challenge the judgment/orders. Consideration of the other questions will arise only if the locus of the appellant/petitioner is upheld. 20. Section 96 of the Code of Civil Procedure reads thus:- _“_ _**96. Appeal from original decrees.-** (1) Save where otherwise expressly provided in the body of this code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court._ RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 11 :- _(2) An appeal may lie from an original decree passed exparte._ _(3) No appeal shall lie from a decree passed by the Court with the consent of parties._ _(4) No appeal shall like, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees.”_ Apparently it does not mention as to who is entitled to file an appeal challenging a decree. Law is well settled that, it is a person who is aggrieved by a decree or order who is entitled to challenge the same. To consider a person to be aggrieved by a decree or order, any of his rights must be affected or decided against him by the order. The decree or order should operate against him and to his prejudice. Of course, in public interest litigations, the question of personal detriment/injury may not arise. The scope of “locus” of a petitioner in a RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 12 :- public interest litigation has been very much widened through a plethora of judgments of the Apex Court. However, presently we are not dealing with such rights and hence, the principles regarding the locus in a public interest litigation does not apply to the case at hand. In _**Bar Council of Maharashtra v. M.V.Dabholkar and Ors. AIR 1975 SC 2092,**_ a Constitution Bench of the Apex Court considered the scope of the words “person aggrieved”. The Apex Court held that, normally the enquiry should be whether he has been denied or deprived of something to which he is legally entitled to. So also if a legal burden is imposed by an order/judgment he could be considered as a person aggrieved. The order must have prejudicially affected his interests. At paragraphs 26 and 27 the Apex Court held :- _“26. The words “person aggrieved” are found in several statutes. The meaning of the words “person aggrieved” will have to be ascertained with reference to the purpose and the_ RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 13 :- _provisions of the statute. Sometimes, it is said that the words “person aggrieved” correspond to the requirement of locus standi which arises in relation to judicial remedies._ _27. Where a right of appeal to courts against an administrative or judicial decision is created by statute, the right is invariably confined to a person aggrieved or a person who claims to be aggrieved. The meaning of the words “a person aggrieved” may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one “a person aggrieved”. Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words “a person aggrieved” is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics. The words “persons aggrieved” in Sections 37 and 38 of the Act are_ RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 14 :- _of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests. The test is whether the words “person aggrieved” include “a person who has a genuine grievance because an order has been made which prejudicially affects his interests”. It has, therefore, to be found out whether the Bar Council has a grievance in respect of an order or decision affecting the professional conduct and etiquette.”_ The above was relied on by the Supreme Court in _**Maharaj Singh v State of U.P & others, AIR 1976 SC 2602**_ . Therefore ultimately the question is, does the order/decree in any manner affect the interest or rights of the person who proposes to challenge the same. If it does, then he has a right of appeal and if not, he does not. 21. As noted, the appellant/petitioner is the additional 18[th] defendant in the suit. He is a _pendente lite_ assignee from defendants 10 to 13. The suit which was originally dismissed on 09.08.1994, was remanded by this RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 15 :- Court in AS 172/1995 to consider the plea of fixity of tenure raised by the defendants 10 to 13 i.e. by the assignors of the appellant/petitioner. Defendants 10 to 13 claimed rights under one Muthappa who had obtained Ext.B6 Purchase Certificate in respect of the property on 22.02.1973. Muthappa assigned his rights to one Sreedharan under Ext.B2 Sale Deed. Sreedharan in turn on 19.11.1983 conveyed his rights to defendants 10 to 13 under Exts.B3 to B6 documents. It is from the defendants 10 to 13 that the appellant/petitioner got assignments of the rights. He got himself impleaded in the suit on 04.08.2011. During that time, pursuant to the order of remand by this Court in AS 172/1995, the plea of fixity of tenure raised by defendants 10 to 13 (assignors of appellants/petitioner) was pending consideration before the Land Tribunal. RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 16 :- 22. The Land Tribunal found that purchase certificate was issued in favour of Muthappa relying on a few rent receipts and that the said rent receipts reveal that Muthappa was only a “building tenant”. Accordingly the Land Tribunal negatived the plea of fixity of tenure. The trial court which is bound by the finding of the Land Tribunal in terms of Section 125(5) of the Kerala Land Reforms Act, accepted the finding. In the appeal against the decree as RFA 749/2012, this Court, in its judgment dated 17.06.2015 after a meticulous consideration of the finding of the Land Tribunal that Muthappa was only a building tenant, concurred with the same. At paragraph 12 of the judgment this Court held thus :- _“12. The learned counsel for defendants 10 to 13 as also the learned counsel for the additional 18[th] defendant contended that the finding rendered by the Land Tribunal that Muthappa was only a building tenant is unsustainable. There is no_ RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 17 :- _substance in this contention also. It is seen that Muthappa had obtained purchase certificate in respect of the property based on a few rent receipts produced before the Land Tribunal. When the matter was taken up again by the Land Tribunal pursuant to the decision of this Court, the Land Tribunal had called for and examined the said rent receipts. On a close scrutiny of the said rent receipts, the Land Tribunal came to the conclusion that Muthappa was only a building tenant. I have perused meticulously the decision rendered by the Land Tribunal in this connection. The relevant portion of the order of the Land Tribunal reads thus:_ _Excepting these rent receipts there is neither any oral evidence nor any other documentary evidence seen produced by A.Muthappa in Ext.A(1) order of Land Tribunal, Kasaragod. On perusal of Ext.B(2) to B(9) and their original copy from Ext.C(2) it is seen that three rent receipts and three money order acknowledgement issued by Panduranga Mallya are the clinching evidence to show that A.Muthappa was only a building lessee as the rent thereunder is described as monthly building rent at the rate of Rs.18/- per month. Generally in Malabar area especially in Hosdurg and Kasaragod Taluks lease rent of agricultural land except double crop wet lands are paid once in a year and no in monthly wise as stated by_ RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 18 :- _petitioners. There is no such instance noticed or heard so far. The argument of petitioners in this regard is unbelievable. Two rent receipts are the receipt issued by the court receiver and fixity of tenure can be claimed under these receipts on the same is exempted under chapter II section 3(1) (IV) of Kerala Land Reforms Act. The Authorised Officer in his report marked as Ext.C(1) reported that local enquiry shows that landed property claimed by petitioners is jointly in their possession and enjoyment at present. But he has not given the details of such local enquiry and the person with whom he has made enquiry in his report. Another point to be noted in this case is that the Authorised Officer appointed in OA 1186/71 in his report dt.15.12.72 available in Ext.C(2) marked in this proceedings reported that Sri.Muthappa predecessor of petitioners is in possession and enjoyment of the land involved in this reference as cultivating tenant and he is entitled for the assignment of land lords right. At the same time against question 12 in his form report he has stated that the applicant Sri.Muthappa has not produced any document to prove tenancy right. According to his report the land contains only 36 coconut trees aged about 50 years and considering his date of visit in 1972 the coconut trees might have been planted in 1922. The land lord Seshu Mallya predecessor of_ RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 19 :- _Panduranga Mallya purchased the property in two separate sale deed dt.10.12.1993 and 9.12.1928. Therefore it is clear that the only improvements existing in the property was effected either by Sheshu Mallya or his predecessors and the alleged cultivating tenant Muthappa has not effected any improvements as claimed by him. Considering the conflicting views the two reports submitted by the Authorised Officer as per Ext.C(1) and C(2) cannot be considered as trustworthy report in respect of possessary right of A.Muthappa predecessor of the petitioners. Ext.B(1) is the true extract of settlement register in respect of R.S.No.94/4 of Kasaragod Village. According to Ext.B(1) Panduranga Mallya the predecessors of respondent 1 to 7 is the registered holder of the land involved in this reference. From the materials available before this Tribunal it is crystal clear that, the rent receipts issued by Panduranga Mallya as per Ext.B(2) to B(9) are the clinching evidence to show that A.Muthappa predecessor of petitioners was only a building lessee as the rent thereunder is described as monthly building rent._ _I fully concur with the finding of the Land Tribunal that Muthappa was only a building tenant.”_ RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 20 :- 23. Challenging the judgment of this Court, the appellant/petitioner in whom the rights of Muthappa became vested, approached the Apex Court in SLP No.28841/2015. The Apex Court as per order dated 02.11.2015 dismissed the Special Leave Petition, thus :- _“We do not find any merit in this petition. The special leave petition is, accordingly, dismissed.”_ 24. The status of Muthappa as a building tenant has thus become final. The appellant/petitioner does not and cannot have any better claim than that of Muthappa. Thus understanding the rights of the appellant/petitioner as a building tenant it needs to be considered as to whether he could be considered as “a person aggrieved” by the supplementary preliminary decree and the final decree, which relate to the quantum and allotment of shares to the respective sharers. RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 21 :- 25. Apart from the right to continue in occupation as a building tenant subject to its rights and liabilities, the appellant-petitioner does not have any other rights. He (building tenant) cannot be in any manner affected by the allotment of shares inter-se between the owners of the property. Though the learned counsel for the appellant expressed an apprehension that the appellant/petitioner would be evicted in execution of the final decree. The apprehension is misconceived. Having held that he is a building tenant, he could be evicted only in accordance with law and in appropriate proceedings. The allotment of shares inter-se between the owners does not in any manner affect his interests. By any stretch of imagination, it could not be held that he is in any manner aggrieved by the decree and orders impugned. It is held accordingly. RFA Nos.679/2016,168/2018, OP(C) 2704/2017 & CRP 509/2017 -: 22 :- ## 26. Having found that the appellants/petitioner cannot be considered to be a person aggrieved by the decree/orders impugned in these proceedings, the contentions raised by him does not arise for consideration. Resultantly, the appeals, revision and the original petition fail and are dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF OP(C) 2704/2017** ## **PETITIONER EXHIBITS** |**EXHIBIT P1**|**DATED 20.11.1986, A TRUE COPY OF THE PLAINT**| |---|---| ||**IN O.S.NO.122 OF 1986 ON THE FILE OF THE**| ||**SUBORDINATE JUDGE'S COURT, KASARAGOD.**| |**EXHIBIT P2**|**DATED 17.06.2015, A TRUE COPY OF THE JUDGMENT**| ||**IN R.F.A.NO.749 OF 2012 PASSED BY THIS**| ||**HON'BLE COURT.**| |**EXHIBIT P3**|**DATED 17.06.2015, A TRUE COPY OF THE**| ||**PRELIMINARY DECREE IN R.F.A NO.749 OF 2012**| ||**PASSED BY THIS HON'BLE COURT.**| |**EXHIBIT P4**|**DATED 22.09.2015, A TRUE COPY F.D.I.A NO.467**| ||**OF 2015 IN O.S.NO.122 OF 1986 ON THE FILE OF**| ||**THE SUB COURT, KASARAGOD.**| |**EXHIBIT P5**|**DATED 21.06.2016, A TRUE COPY OF I.A.NO.201**| ||**OF 2016 IN F.D.I.A.NO.467 OF 2015 IN**| ||**O.S.NO.122 OF 1986.**| |**EXHIBIT P6**|**DATED 06.10.2016, A TRUE COPY OF THE ORDER IN**| ||**I.A.NO.201 OF 2016 IN F.D.I.A. NO.467 OF 2015**| ||**IN O.S.122 OF 1986.**| |**EXHIBIT P7**|**DATED 31.10.2016, A TRUE COPY OF I.A.NO.356**| ||**OF 2016 IN F.D.I.A. NO.467 OF 2015 IN O.S.122**| ||**OF 1986.**| |**EXHIBIT P8**|**DATED 04.11.2016, A TRUE COPY OF I.A.NO.364**| ||**OF 2016 IN I.A.NO.201 OF 2016 IN O.S.NO.122**| ||**OF 1986.**| |**EXHIBIT P9**|**DATED 04.11.2016, A TRUE COPY OF I.A.NO.365**| ||**OF 2016 IN O.S.NO.122 OF 1986 BEFORE THE**| ||**PRINCIPAL SUB COURT, KASARAGOD.**| |**EXHIBIT P10**|**DATED 03.11.2016, A TRUE COPY OF I.A.NO.366**| ||**OF 2016 IN O.S.NO.122 OF 1986 BEFORE THE**| ||**PRINCIPAL SUB COURT, KASARAGOD.**| ## **APPENDIX OF OP(C) 2704/2017 -2-** **EXHIBIT P11 DATED 31.05.2017, A TRUE COPY OF THE ORDER IN I.A.NO.356 OF 2016 IN F.D.I.A.NO.467 OF 2015 IN O.S.NO.122 OF 1986 PASSED BY THE SUB JUDGE, KASARAGOD. EXHIBIT P12 DATED 31.05.2017, A TRUE COPY OF THE COMMON ORDER IN I.A.NO.364/2016 AND 365/2016 IN I.A.201 OF 2016 IN O.S.NO.122 OF 1986 PASSED BY THE SUB JUDGE, KASARAGOD. EXHIBIT P13 DATED 31.05.2017, A TRUE COPY OF THE ORDER IN I.A.NO.366 OF 2016 IN F.D.I.A.NO.467 OF 2015 IN O.S.NO.122 OF 1986 PASSED BY THE SUBORDINATE JUDGE'S COURT OF KASARAGOD.** -----