Muhammed Sali S/O Mytheenkunju and others v. Chandraprabha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941** ## **RSA.No.322 of 2005** **AGAINST THE JUDGMENT IN AS 97/2003 of SUB COURT, NEDUMANGAD DATED 10-03-2004** **AGAINST THE JUDGMENT IN OS 568/1995 of ADDITIONAL MUNSIFF COURT, NEDUMANGAD DATED 17-08-1998** ## **APPELLANTS/APPELLANTS/3RD PARTIES:** - **1 MUHAMMED SALI S/O.MYTHEENKUNJU, ROADARIKATHU VEEDU, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR.NIZARUDEEN, NIZAR MANZIL, MAHALAYAM, THOTTUMUKKU, VITHURA P.O., THOLICODE VILLAGE.** - **2 SALIM, S/O. MOHAMMED HANEEFA ANSHAD MANZIL, KOPPAM, VITHURA P.O., THOLICODE VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER NIZARUDEEN, DO. DO.** - **3 SHAYLA, W/O. SALIM, ANSHAD MANZIL KOPPAM, VITHURA P.O. BY ADV. SRI.G.S.REGHUNATH** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS:** - **1 CHANDRAPRABHA, (DIED)* W/O.DILEEP KUMAR, SREEVILASOM, ANAPPARA P.O., VITHURA, THOLICODE VILLAGE.** ## **R.S.A.No.322 of 2005** ## **:-2-:** - **2 PRABHULLACHANDRAN @ CHANDRAN S/O. LAKSHMANAN, KOPPAM ROADARIKATHU VITHURA P.O., THOLICODE VILLAGE, NEDUMANGAD.** - **3 KUNJI PONNAMMA DO. DO.** - **4 KUNJI VILASINI DO. DO.** - **5 KUNJI RETNAMMA DO. DO.** - **6 ADDL.R6.G.DILEEP KUMAR, AGED 45 YEARS, MUKUNTHAM,ANAPPARA P.O., VITHURA, THIRUVANANTHAPURAM-695 551.** - **7 ADDL.R7.GANGA, D/O.CHANDRAPRABHA, AGED 36 YEARS, MUKUNTHAM,ANAPPARA P.O., VITHURA, THIRUVANANTHAPURAM-695 551.** - **8 ADDL.R8.GARGI, D/O.CHANDRAPRABHA, AGED 34 YEARS, MUKUNTHAM,ANAPPARA P.O., VITHURA, THIRUVANANTHAPURAM-695 551.** ***LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 6 TO 8 AS PER ORDER DATED 27.02.2019 IN IA.1353/2015.** **BY ADVS. SRI.K.SATHEESH KUMAR SRI.M.SREEKUMAR SRI.T.A.UNNIKRISHNAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **R.S.A.No.322 of 2005** ## **:-3-:** ## **J U D G M E N T** The appellant in the First Appellate Court in A.S.No.97 of 2003 of the Sub Court, Nedumangad, came up with this appeal against the judgment rendered by both the Trial Court and the First Appellate Court. The suit was decreed by the trial court against which an appeal was preferred by the defendant as an aggrieved person, with a petition to condone the delay. He is not a party to the suit. The delay condonation application was dismissed and consequently the appeal was also dismissed as time barred without going into the merits. 2. The questions came up for consideration are: **==> picture [302 x 12] intentionally omitted <==** court justified in dismissing the appeal ## **R.S.A.No.322 of 2005** ## **:-4-:** as time barred without condoning the delay occasioned, when the appeal was filed by a stranger, not a party to the suit, in the capacity of an aggrieved person with leave to appeal ? ii) whether the appellant is a pendente lite transferee for the purpose of a new schedule incorporated in the suit ( B schedule) by way of amendment after its purchase by the appellant and whether he is bound by the decree ? iii) Whether the amendment allowed would revert back to the date of suit by the application of doctrine of relation back so as to bring the appellant within the purview of pendente lite transferee bound by Section 52 of Transfer of Property Act ? ## **R.S.A.No.322 of 2005** ## **:-5-:** 3. The suit in O.S.No.568 of 1995 was filed for declaration and recovery of possession of 40 cents of property in Survey No.58/1 scheduled in the plaint. Subsequently, an amendment was allowed in I.A.No.617 of 1997 by which a new schedule was incorporated having an extent of 18½ cents in the very same survey number as B schedule and the suit was proceeded with and ended in a decree of declaration and recovery of possession of A and B schedule properties, the 40 cents and 18½ cents. 4. The appellant is not a party to the suit. But he is a pendente lite transferee. It is seemed to be so unfortunate that the first appellate court overlooked all accepted principles governing condonation of delay. It is an appeal by an aggrieved person who is not a party to the suit and appeal was filed with leave being not a party to the suit. The application for condoning the delay ## **R.S.A.No.322 of 2005** ## **:-6-:** occurred in preferring the first appeal has to be considered in reference to the fact that the appellant was not a party to the suit and there may not be any occasion for him to notice the pendency of the suit. In the absence of such notice what is pleaded by the appellant regarding the date of notice unless vitiated by any malafides, has to be accepted. That has not been done by the first appellate court. Further, the fact that the appellant is not a party to the suit is a sufficient reason to condone the delay unless there is gross negligence sufficient to outweigh the benefit that can be acquired by the decree holder than that of the appellant. It is not advisable to curtail the valuable right to proceed with a suit or appeal unless there is gross negligence. The principles governing condonation of delay have not been applied by the first ## **R.S.A.No.322 of 2005** ## **:-7-:** appellate court while dismissing the delay condonation application. 5. After obtaining leave to file an appeal against the decree and judgment of the trial court, certain documents were produced under Order 41 Rule 27 C.P.C., a sale deed in his favour executed by five persons with respect to 18 1/2 cents, the B schedule in the plaint. It was not accepted in evidence by the first appellate court as the appeal was dismissed as time barred. In fact the first appellate court had curtailed a right of an aggrieved person - a pendente lite transferee who would stand as bound by the decree, to prefer an appeal. The fact that he was not in the party array has not been properly taken into consideration by the first appellate court. 6. A large extent of 98 1/2 cents in Sy.No.58/1 originally belonged to one Kunhi. The ## **R.S.A.No.322 of 2005** ## **:-8-:** plaint A and B schedules form part of the large extent of 98 1/2 cents held by her. During her life time, she had executed a settlement deed No.3023/1981 dated 19/8/1981 in respect of northern 40 cents and southern 40 cents out of large extent of 98 1/2 cents in favour of her five children by keeping 18 1/2 cents being the middle portion in common. After her death, the middle portion 18 1/2 cents was sold by the five children along with their children in favour of the appellant on 2.5.1996 and thereby the appellant became the owner of 18 1/2 cents, the plaint B schedule. The present suit was filed by the above said five children of Kunhi. 7. Originally the suit was filed with respect to A schedule property for declaration and recovery of A schedule, 40 cents of property, in Sy.No.58/1. It was by virtue of a subsequent amendment in I.A.No.617/1997, the B schedule property, 18 1/2 ## **R.S.A.No.322 of 2005** ## **:-9-:** cents being the middle portion of large extent of 98 1/2 cents incorporated in the suit as an additional schedule to the plaint. At that time, the appellant was not in the party array of the suit. Even prior to the amendment, the appellant had obtained the property, the 18 1/2 cents by virtue of an earlier sale deed dated 2.5.1996. The amendment was allowed incorporating a new schedule by recording no objection presumably on the reason that the person who had to object the application , the appellant, was not made as a party to the suit and the suit was proceeded with without the juncture of the appellant who had obtained the property by virtue of sale deed dated 2.5.1996. 8. It was submitted that the appellant being a pendente lite transferee bound by the decree passed by the trial court. No appeal was preferred by any of the party to the suit and by virtue of dismissal ## **R.S.A.No.322 of 2005** ## **:-10-:** of delay condonation application filed by the appellant herein and consequential dismissal of appeal, the appeal stood as final and conclusive as against the party to the suit. So the question to be addressed at first is whether the amendment would go back to the date of suit so as to bring the appellant herein who is not a party to the suit as a pendente lite transferee bound by the decree by virtue of application of Section 52 of Transfer of Property Act. 9. The legal position whether an amendment would go back to the date of suit came up before this court in **Subramonian R.D. & another v. C.B.Sukumara Kurup and others ( 2019 (3) KHC 899)** , wherein this court had referred various decisions rendered by the Apex Court in **H.J.Leach and Co. v. Ms.Jardine Skinner and Co. (1957 KHC 368 = AIR 1957 SC 357),Pirgonda Hongonda Patil v. Kalgonda** ## **R.S.A.No.322 of 2005** **:-11-:** **Shidgonda Patil (AIR 1957 SC 363), K.Raheja Construction Ltd. and another v. Alliance Ministries and Ors. (1995 Supp (3) SCC 17 = AIR 1995 SC 1768),Vishwambhar and Ors. v. Laxminarayan (Dead) through LRs and another [(2001) 6 SCC 163 = AIR 2001 SC 2607],Siddalingamma and Another v. Mamtha Shenoy [(2001) 8 SCC 561 = AIR 2001 SC 2896],Sampath Kumar v. Ayyakannu and Another (AIR 2002 SC 3369 = (2002) 7 SCC 559)** and settled the legal position that the doctrine of relation back would not come into play when a new cause of action or a new schedule was incorporated in the suit by way of amendment. The B schedule property was incorporated by way of an amendment after the purchase of the said property by the appellant and hence it will not go back to the date of suit. It would operate only from the date of its amendment. The suit cannot be considered as pending in respect of B schedule ## **R.S.A.No.322 of 2005** ## **:-12-:** property at the time when the property was purchased by the appellant and hence he is not a pendente lite transferee and Section 52 of the Transfer of Property Act would not come into play. Hence the decree passed by the trial court will not bind upon the appellant and his right, title and interest over the plaint B schedule property and the decree granted by the trial court in so far as B schedule property would stand set aside as against the appellant. The appeal is allowed accordingly. The decree and judgment of the trial court would stand set aside as against B schedule property and the right, title and interest of the appellant over the said property. No costs. Sd/- **P.SOMARAJAN JUDGE** ami/