High Court of KeralaSingle Judge2024-04-11Appeal disposed of by consent, in terms of the ...

Kunjimarakkar & Anr v Shaju & Others

Case / Petition Number:RFA No. 524 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Shoba Annamma Eapen
Judgment Date: 2024-04-11
Court Decision / Holding: The court accepted the mediated settlement, set aside the decree and judgment under challenge, and disposed of the appeal in terms of the memorandum of settlement dated 6 April 2024. The MoU is made part of the judgment; court fees paid on the memorandum of appeal shall be refunded to the appellants; all pending interlocutory applications are closed.
Final Disposition: Appeal disposed of by consent, in terms of the mediated settlement; MoU to form part of the final decree; refund of court fees; interlocutory applications closed; decree/ judgment impugned set aside.

Parties to the Case

Appellants / Petitioners

Kunjimarakkar
Kunju Muhammed
CP Asiya (Addl.A3)
Mohammas Shareef CP (Addl.A4)
Pathukutty (Addl.A5)
Kadeeja (Addl.A6)

Respondents

Shaju
Peter
Saji
Dr. P.V. Yooyis

Legal Representation & Advocates

Counsels for Petitioners

• NagaraJ Narayanan Saijo Hassan
• A.S. Babu
• Rajan Velloth
• Prathap Pillai

Counsels for Respondents

• B. Sabitha (Desom)
• M. Ajay Irumpanam
• R.S. Kalkura
• Harish Gopinath
• M.S. Kaleesh
• V. Vinay Menon

Case Synopsis & Summary

The Kerala High Court, Ernakulam, in Regular First Appeal No. 524 of 2009, presided by Hon. Justice Shoba Annamma Eapen, disposed of the appeal by settlement reached through mediation. The appeal arose from a judgment and decree dated 31 October 2008 in Original Suit No. 298 of 2007 in the Sub Court, Perumbavoor, involving a complex property dispute among co-owners and legal heirs. The appellants included Kunjimarakkar and Kunju Muhammed, with several Addl. appellants (A3–A6) impleaded as legal heirs of the deceased A2, and the respondents included Shaju, Peter, Saji, and Dr. P. V. Yooyis. The matter was referred to mediation at the Ernakulam Mediation Centre, where a memorandum of settlement dated 6 April 2024 was signed by the parties. The terms provide for sale of the suit schedule property, with the fourth respondent’s consent, and details on payment obligations, including amounts already paid to vendors and a sharing arrangement on the balance sale proceeds in the ratio of 30:70 between the appellants and the fourth respondent. The appellants sought refund of court fees already paid. The court recorded that the memorandum of agreement forms part of the judgment, set aside the impugned decree, and disposed of the appeal in terms of the settlement. All pending interlocutory applications were closed.

Provisions of Law Cited

Section 89 of the Code of Civil ProcedureRules 24 and 25 of the Civil Procedure (ADR) Rules 2008

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants’ pre-mediation position challenged the trial court’s decree in OS 298/2007 and emphasized the need for a legally robust resolution of the real property dispute among co-owners. After negotiations, the parties agreed to a mediated settlement aimed at finalizing the ownership and sale arrangements to avoid protracted litigation. The memorandum of settlement emphasizes the sale of the scheduled property with the Fourth respondent’s consent, a specific payment plan including sums already advanced to vendors, and a proportionate sharing of remaining sale proceeds (30:70) between the appellants and the fourth respondent. The parties also sought refund of court fees, and requested that the MoU form part of the decree. The overall objective was to settle the dispute amicably through ADR, rendering further litigation unnecessary.

Contentions of Respondents

The respondents supported resolution by mediation and entered into the memorandum of settlement, agreeing to the sale terms and the distribution mechanism. They sought a conclusive end to litigation through the ADR process, recognizing that the agreed terms would bring finality to the longstanding ownership and financial entitlements among the parties. They consented to the inclusion of the memorandum of agreement as part of the judgment and to refund of court fees, while ensuring the sale settlement would be implemented in the manner described in the MoU. The respondents’ primary objective was a fair, enforceable settlement that would promptly resolve the dispute and avoid further litigation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 11[TH] DAY OF APRIL 2024 / 22ND CHAITHRA, 1946 RFA NO. 524 OF 2009** **[AGAINST THE JUDGMENT AND DECREE DATED 31.10.2008 IN OS NO.298 OF 2007 OF SUB COURT, PERUMBAVOOR]** ## **APPELLANTS:** **1 KUNJIMARAKKAR, S/O.KUNJI MUHAMMED HAJI, PUTHOOR DESOM, PERUMANNA VILLAGE, THIROOR TALUK.** - ***2 KUNJU MUHAMMED** **S/O.UNNENKUTTY HAJI, POOVATHUMKUZHIYIL, CHETTITHODY, KULUKKALLOOR VILLAGE, OTTAPALAM TALUK. [DIED-LRs. IMPLEADED AND THIER POA RECORDED]** - **ADDL.A3 C.P. ASIYA** **AGED 63 YEARS, W/O. KUNHI MUHAMMED, CHETTITHODI, POOVATHUM KUZHI HOUSE, RAHMATHANGADI, KULUKALLUR P.O., MULAYAMKAVU, PALAKKAD DISTRICT-679337** **ADDL.A4 MOHAMMAS SHAREEF C.P ,** **S/O. KUNHI MUHAMMED,CHETTITHODI, POOVATHUM KUZHI HOUSE, RAHMATHANGADI, KULUKALLUR P.O., MULAYAMKAVU, PALAKKAD DISTRICT-679337** ## **ADDL.A5 PATHUKUTTY,** **AGED 47, W/O.KUNJI MOIDEEN, KALATHIL HOUSE, P.O.VALLAPUZHA, PALAKKAD DISTRICT - 679 336** ## **ADDL.A6 KADEEJA,** **AGED 49, W/O. KUNJI MOIDEEN, KALATHIL HOUSE, P.O.NELLAYA, PALAKKAD DISTRICT-679 335 THE LEGAL HEIRS OF DECEASED A2 ARE IMPLEADED AS ADDL.A3 TO A6 VIDE ORDER DATED 13.10.2023 IN IA 1/2022. IT IS RECORDED THAT ADDL.A3 TO A6 ARE REPRESENTED BY THE POWER OF ATTORNEY HOLDER: SRI.KUNHIMOIDEEN, AGED 61 YEARS, S/O.MOHAMMED, KALATHIL HOUSE, VALLAPUZHA.P.O., PATTAMBI, PALAKKAD DISTRICT. VIDE ORDER DTD.13.10.2023 IN MEMO DTD.04.09.2023** **BY ADVS.SRI.NAGARAJ NARAYANAN SAIJO HASSAN SRI.A.S.BABU, SRI.RAJAN VELLOTH & SRI.PRATHAP PILLAI** R.F.A.NO.524 OF 2009 :-2-: ## **RESPONDENTS:** - **1 **SHAJU,S/O.MATHEW,OLANGATTU HOUSE, KUNNATHUNADU VILLAGE, KUNNATHUNADU TALUK. [POA RECORDED]** ****P.V.THOMAS, PARAPPURATH HOUSE,VADAVUCODE.P.O., ERNAKULAM -682310, IS RECORDED AS THE POWER OF ATTORNEY HOLDER OF FIRST RESPONDENT VIDE ORDER DATED 11.04.2024 IN MEMO DATED 18.03.2024.** - **2 PETER, S/O.MATHEW, OLANGATTU HOUSE, KUNNATHUNADU VILLAGE,KUNNATHUNADU TALUK.** - **3 SAJI, SO.MATHEW, OLANGATTU HOUSE, KUNNATHUNADU VILLAGE, KUNNATHUNADU TALUK.** - **4 DR.P.V.YOOYIS, SO.VARGHESE PULICKAL HOUSE, ELAMKULAM DESOM, KANAYANNUR TALUK.** **BY ADVS. B.SABITHA (DESOM) SRI.M.AJAY IRUMPANAM SRI.R.S.KALKURA SRI.HARISH GOPINATH SRI.M.S.KALESH SRI.V.VINAY MENON** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.F.A.NO.524 OF 2009 :-3-: ## **J U D G M E N T** **The parties have settled their disputes in mediation. They have entered into a memorandum of agreement incorporating the terms of settlement. The decree and judgment impugned in this appeal is set aside and the appeal is disposed of in terms of the settlement.** **The memorandum of agreement dated 6[th] April, 2024 shall form part of this judgment. The court fee paid on the memorandum of appeal shall be refunded to the appellant.** **All pending interlocutory applications are closed.** **Sd/-** **SHOBA ANNAMMA EAPEN, JUDGE** ## **MBS/** # BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAI(ULAM ## RFA No. 524 of 2009 Kunjimarakkar & Anr Petitioner Shaju & Others Respondents ## REPORT SUBMITTED BY THE MEDIATOR ADV. GEETHA KUMARI P.S Mediated, matter is settled. Memorandum of settlement signed by the parties is forwarded herewith. Datedthisthe6th dayof April, 2024, Adv. Geetha Kumari P.S Mediator Ernakulam Mediation Centre # BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM RFA No[ 524/2009 Kunjimarakkar & Anr : Petitioner Vs. Shaju & Others : Respondents MEMORANDUM OF SETTLEMENT FILED UNDER SECTION 89 0F THE CODE OF CIVIL PROCEDURE READ WITH RULES 24 AND 25 0F THE CIV.L PROCEDURE (AITERNATIVE DISPUTE RESOLUTION) RULES 2008) WHEREAS on the basis of negotiations and mediations held at the Mediation Centre, the Appellants and the Fourth respondent have agreed to the following terms, conditions and covenants herein below stated:- ## ADDellarlts : **==> picture [505 x 243] intentionally omitted <==** **----- Start of picture text -----** 1. Kunjimarakkar 3. C.P. Asiya Rep by PoA Kunji Moideen •-%.;T- 4. Mohammas shareel: C.P • PaEheupmb¥apiuAtt¥unji MoideenLL Rep by PoA Kunji Moideen -+' + I 6. Kadeeja Rep by PoA Kunji Moideen 74=- 2. Peter :=SsDh°anj:ents: dig (Rep by POA Holder P.Y.17)-4Ace ) 4. Dr. P.V Yooyis @ Dr.P.V Louis n+. **----- End of picture text -----** **==> picture [185 x 12] intentionally omitted <==** **----- Start of picture text -----** "`'\a¥:`&%::i;:u.g::{2CK:e:i`\``;at`°"Ce"" **----- End of picture text -----** **==> picture [19 x 4] intentionally omitted <==** **----- Start of picture text -----** •ch,I ]' i **----- End of picture text -----** -2- (1) The Appellants hereby agrees that the Appellants shall make arrangements with the full knowledge and written consent of the Fourth respondent to sell the property scheduled hereunder along with the properties belonging to them lying adjacent and adjoining to the property belonging to the Fourth respondent at the earliest opportune moment. **==> picture [511 x 355] intentionally omitted <==** **----- Start of picture text -----** AinDellants = 1. Kunjimarakkar 3. C.P. Asiya Rep by PoA Kunji Moideen JZE,=|. 4. Mohammas shareefc.P 5. PaEtupmb¥ap:uA¥unji MoideehL Rep by PoA Kunji Moideen +`` ` + ` 6. Kadeeja Rep by POA Kunji MoideenL ResDondends:1. Shaju difke 2. Peter [ifu-tr] (Rep by POA Holder P.V.76l¢';4[j ) 4. Dr. P.V Yooyis @ Dr.P.V Louis i,'Jtrfu.:',J:H'`,`..,,`,+t`(`',.iSj;:,ji:Oil •, q( p;'ehtr.a h'igh Cour`'. i I ; Kochi - 682 0: **----- End of picture text -----** -3- - (2) That on the Appellants bringing the property of the Fourth respondent to sale, then in that event, the Appellants shall pay to the Fourth respondent an amount of Rs.12,18,800/- being the sale consideration in respect of the said property paid to the vendors by the Fourth respondent and also another amount of Rs. 37,81,200/forthwith to the Fourth respondent. This apart, from the balance sale consideration obtained by the sale of the property scheduled hereunder, the Appellants agree after adjustment of the said amount of Rs.50,00,000/- (Rupees Fifty Lakhs only) with regard to the remaining sale consideration received by the Appellants on the sale of the same, the Appellants and the Fourth respondent agree that the balance amount be shared in the proportion of 30:70 (300/o to the appellants and 70°/o to the fourth respondent) respectively. ## ADDellants : **==> picture [508 x 350] intentionally omitted <==** **----- Start of picture text -----** 1. Kunjimarakkar 3. C.P. Asiya Rep by PoA Kunji Moideen -A-.... 4i M°R:FFyai:*aK::jfj cwi:jdeenL 5- Pa:heupmb¥apL#unji MoideQdrfu 6. Ka£:#y POA Kunji Moideenrfu :.e(S:D:a:i:b:=:AHo,der #=¥ 2. Peter &*ck' 4. Dr. P.V Yooyis @ Dr.P.V Louis ',retii **----- End of picture text -----** -4- - (3) That on the Appellants effecting payment of the aforesaid amount as agreed above and on receipt of the same by the Fourth respondent, the Fourth respondent shall execute Sale Deeds/documents as is required by the Appellants in their name or to their nominees forthwith at the expense of the Appellants. - (4) Thatthe period of this agreementshall be threeyears extendable at the option of the parties hereto. ## ADeellarits : **==> picture [524 x 346] intentionally omitted <==** **----- Start of picture text -----** 1. Kunjimarakkar 3. C.P.RAesjybay POA Kunji Moideen i 4. M°R:FFya5:*aKrue:jfj cwi:jdeen+ 5. Pa:heupmb?ap:uAT¥unji MoideeqL 6. Kadeeja Rep by PoA Kunji Moideen +.` 2. Peter :.essDhoanj:e nts : ca Q3*thr (Rep by POA Holder pv.7a#;~ ) 4. Dr. P.V Yooyis @ Dr.P.V Louis faJdyasthl8Me€9a'`\onaridconc\\.L`.~ ` u. , ~`H`gKho:hp,u.rt8%f2KoeSri\3 ,, b`"\ **----- End of picture text -----** 4. M°R:FFya5:*aKrue:jfj cwi:jdeen+ 5. Pa:heupmb?ap:uAT¥unji MoideeqL -5- (5) The parties to this compromise pray that the terms conditions and covenants of the compromise as stated herein above may be made part of the decree be passed by this Hon'ble Court and that the appellant shall be entitled to refund of the court fees paid. (6) Appellants and respondents agreed that the entire amount deposited with interest before the Trial Court by the respondents 1, 2 & 3 should be refunded to the appellant as forthwith. ## ADi)e]Iarits : 1. I(uhjimarakkar ".P.RAesjybaypoAKunjiMoideenrfu 4. M°R:FFya;:*aKrue:jf[ Cwi:jdeen fa 5. PaEtupmb¥ap:uAT¥uhji Moideen ± 6. Kadeeja Rep by PoA Kunji Moideen ± **==> picture [208 x 25] intentionally omitted <==** **----- Start of picture text -----** :.ess:anj:erds: de **----- End of picture text -----** 2. Peter i.,Say- (Rep by POA Holder P.VTh4"@ ) **==> picture [216 x 12] intentionally omitted <==** **----- Start of picture text -----** 4. Dr. P.V Yooyis @ Dr.P.V Louis **----- End of picture text -----** **==> picture [134 x 60] intentionally omitted <==** **----- Start of picture text -----** Je,`t,,-, .c( ,,,--`;8itt-:;i , J€ **----- End of picture text -----** -6- ## SCHEDULE OF PR PEF`TY |District|Ernakulam| |---|---| |Reg. Sub District|Puthencruz| |Ta I u k|Kunnathunad| |Firka|Kunnathunad| |Village|Kunnathunad| |Kara|Pinarmunda| |Te n u re|Jenmom| |Panchayath|Kunnathunad| |Old Sy. NO.|4]3|1 -A, 4]3|5| |Block No.|36 (Thirty six)| |Re. Sy. NO.|219 (Two hundred and ninteen| |SubD vision No.|1 (One)| |Extent (in Ares)|37.20 (Thirty seven point two zero| |Sub Div. No.|7 (seven)| |Extent (in Ares)|1.60 (one point six zero)| |Re-Sy. NO.|204 (Two hundred and four)| |SubD v. NO.|15 (Fifteen)| |Extent (in Ac and by res)|2.30 (Two point three zero)| ## ADDellants = **==> picture [529 x 285] intentionally omitted <==** **----- Start of picture text -----** L. unfirmaTahaT ®W. 3j-P. k%atry p®^viunlf"ofdeen L 4. Mohammas shareef c.P Rep by PoA Kunji Moideen Jal-_ JL5. PaEtupmb¥ap:uAT¥unjj Mojdeen 6. Kadeeja Rep by POA Kunji Moideal Respondents: 1. Shaju dhf¥ 2. Peter Qfrthr, (Rep by POA Holder P.V.Tih;hdro4LS i 3. Saji 4. Dr. P.V Yooyis @ Dr.P.V Louis _ -1 i. r\ ..: ,+:^.I., ?.ef\,,".', **----- End of picture text -----** -7- ## DESCRIPTION All that lands having a total extent of 41.10 ares (101,560 cents) in Kunnathunadu Village made up of 37.20 ares in Re, Sy. No. 219/1 described in Sale Deed No. 4284/1995 of Puthencruz Sub Registry belonging to Vendor No.1, 2 and 3 together and 2.30 ares in Re. Sy. No. 204/15 and 1.60 ares in Re. Sy. No. 219/7 belonging to vendor No.4 and 5 together as per Resurvey Records for the balance area after disposal out of the property described in Sale Deed No, 812/1974 of Aikkaranadu Sub Registry together with all improvements thereon all easements and other similar rights appurtenant thereto and all rights. The said property is delineated in the plan attached to the Sale Deed. ## BOUNDARIES North Thodu and property of Abdul Vahab East Property of Abdul Vahab etc. South Properties of Paulose and lyyob West Thodu All the facts stated above are true to the best of our knowledge, information andbe[jef Datedthjsthe 6th dTyof APF2P24`- ## ADDellards : ## 1. Kunjimarakkar ## 3.C.P`RAesjybaypoAKunjiMoideeniL 4[ M°R:FFya::AaKr::jfj cwi:jdeen.±. PaEtupmb¥ap:uAT¥unji MoideeE± ## 6. Kadeeja Rep by PoA Kunji Moideen ±+I+` tt`` L]lasth® :I.'u'|,,. ` " f>!i`,,., L€„ pEte ```H1%?':t68u;`65'r'u **==> picture [512 x 639] intentionally omitted <==** **----- Start of picture text -----** -8- Respondents: 1. Shaju 2. Peter Q#ck`* dtyse~, (Rep by POA Holder P.V.75on¢S ) 3. Saji 4. Dr. P.V Yooyis @ Dr.P.V Louis Counsel for the Appe]Iants `<(slq'2®®( Counsel for the Respondents Ce4) A>®. l\clyi;L Cut\\th kltsL|qq I-I----¥±- co"rrft\ c)cT t\`i ue|oGPGA€J] I,{ f£3 K[do3`£oLj~ Th;A on±irJAJ.^iJ^± `Is aMJLul:ili=4 b;a r^JL /i CnaeJLG=hott2givp - /-JS prLLOutckh . **----- End of picture text -----** -` kocJri,--££i o"; • den.ira