High Court of KeralaSingle Judge2018-09-28Second appeal dismissed.

RSA No. 1256 of 2010 (G) - Appellants: E. Thilakam, E. Vinayachandran, E. Anitha, E. Jayaraj; Respondents: Kottarathil Padmanabhan Nair and others

Case / Petition Number:RSA No. 1256 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. B. Suresh Kumar
Judgment Date: 2018-09-28
Court Decision / Holding: Second appeal dismissed.
Final Disposition: Second appeal dismissed.

Parties to the Case

Appellants / Petitioners

E. Thilakam
E. Vinayachandran
E. Anitha
E. Jayaraj

Respondents

Kottarathil Padmanabhan Nair
Kottarathil Kunhikannan Nair
K. Muthukrishnan Nair
K. Ravindran Nair
Kottarathil Komalavalli Amma
Mrs. Sukumari Amma
Sasikumar
Kochu
Mini
Geetha
P. Vasantha
Anjana
Anima
Anilkumary

Legal Representation & Advocates

Counsels for Petitioners

• Sri. B. Krishnan
• Sri. Parthasarathy

Counsels for Respondents

• Sri. S. Sujin
• N. N. Sugunapalan (Sr.)
• S. Sujin
• Smt. Latha Prabhakaran
• Sri. K. M. Jamaludheen

Case Synopsis & Summary

This Regular Second Appeal from the High Court of Kerala concerns a partition dispute over tarwad property with a long chain of mortgages and transfers. The plaintiff's case traces title to Kanna Kurup (the tarwad karanavan) and his death, through which the plaintiff and several defendants claim rights. The original mortgage chain begins with a 1936 mortgage by the tarwad; T. D. Nair assigned rights to Narayanan Nair, who passed them to the third defendant. Ibrahim later obtained a money decree, purchased the third defendant’s rights, and sold to Sreedevi Kovilamma, who transferred to Kanna Kurup, whose death is said to have devolved rights on the plaintiff and others. The suit for partition thus aims to divide what is alleged to be shared property. The first defendant contends the property is not partitionable because Kanna Kurup executed a will in his favour; the third defendant claimed possession notwithstanding a decree in his favor. The trial court accepted the will and dismissed the suit; the appellate court affirmed. The third defendant argued he possessed independently, which the courts below rejected. The crucial legal question concerned whether the findings on independent possession could operate as res judicata against a party in later proceedings and whether the second appeal is maintainable for mere findings. The High Court ultimately held the findings on independent possession were unnecessary for disposal and that the second appeal is not maintainable, dismissing it.

Provisions of Law Cited

Code of Civil Procedure (CPC)

Legal Doctrines & Maxims

No appeal against a mere finding under the CPC; test whether the finding would operate as res judicata in subsequent proceedings (Harachandra Das v. Bholanath Das)
Res judicata between co-defendants requires: (1) conflict of interest; (2) necessity to decide; (3) actual decision (Iftikhar Ahmed v. Syed Meharban Ali)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the trial and appellate courts relied on the existence of a will in favour of the first defendant, which, if true, would render the suit for partition non-maintainable. They argued that the finding of independent possession by the third defendant was unnecessary for disposing of the suit, and that even under Harachandra Das v. Bholanath Das, appeal against findings may be permissible if such findings would operate as res judicata in later proceedings. They urged that the proper course was to consider the dispositive effect of the will and that the findings on independent possession should not bar revision in a later suit.

Contentions of Respondents

The respondents argued that the property cannot be partitioned due to the will favoring the first defendant, which defeats partition. They maintained that the trial court’s finding of no independent possession by the third defendant was correct and that the appellate court properly confirmed it. They asserted that the findings, while perhaps not appealable as mere findings, could have binding effects if they operated as res judicata, and that the courts below correctly considered the implications of the will and the third defendant’s possession in determining the maintainability of the appeal.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Harachandra Das v. Bholanath Das	[(1935) ILR 62 Cal 701]	Mentioned Only	Cited for the proposition that an appeal against a mere finding may be permissible if the finding would operate as res judicata in subsequent proceedings; used as background to discuss maintainability of appeals against findings.
Iftikhar Ahmed v. Syed. Meharban Ali	[(1974) 2 SCC 151]	Positive	Cited as the settled test for res judicata between co-defendants, outlining the three conditions required for a judgment to operate as res judicata in subsequent proceedings.

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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 MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY,THE 28TH DAY OF SEPTEMBER 2018 / 6TH ASWINA, 1940** ## **RSA.No. 1256 of 2010 (G)** **AGAINST THE JUDGMENT AND DECREE DATED 09-09-2005 IN AS 57/1997 of DISTRICT COURT,THALASSERY** **AGAINST THE JUDGMENT AND DECREE DATED 31-07-1996 IN OS 227/1995 of PRL.MUNSIFF COURT, KANNUR** **- APPELLANTS/ LEGAL REPRESENTATIVES OF APPELLANT IN A.S.57/1997 DISTRICT JUDGE COURT, THALASSERI / LEGAL REPRESENTATIVES OF 3RD DEFENDANT IN O.S.227/1995 - MUNSIFF, KANNUR :** - **1 E.THILAKAM, W/O.KARUNAKARAN NAIR, AGED 70 YEARS, RETIRED TEACHER, IDAPPARA HOUSE, POST PALLIKKUNNU,, KANNUR-4.** - **2 E.VINAYACHANDRAN S/O.KARUNAKARAN NAIR, AGED 48 YEARS, OCCUPATION `NIL', IDAPPARA HOUSE, POST PALLIKKUNNU,, KANNUR-4.** - **3 E.ANITHA D/O.KARUNAKARAN NAIR, AGED 44 YEARS, HOUSEWIFE, IDAPPARA HOUSE, POST PALLIKKUNNU, KANNUR-4.** - **4 E.JAYARAJ S/O.KARUNAKARAN NAIR, AGED 42 YEARS, PAINTER, IDAPPARA HOUSE, POST PALLIKKUNNU,, KANNUR-4.** **BY ADVS. SRI.B.KRISHNAN SRI.PARTHASARATHY** **RESPONDENTS / RESPONDENTS 1,3,4,6,7, LEGAL REPRESENTATIVES OF 2ND RESPONDENT AND LEGAL REPRESENTATIVES OF 5TH RESPONDENT IN - A.S.57/1997 DISTRICT JUDGE COURT, THALASSERI / PLAINTIFF, LEGAL - REPRESENTATIVES OF DEFENDANTS 1,2,4,5,6 & 7 IN O.S.227/1995 MUNSIFF,KANNUR:** **1 KOTTARATHIL PADMANABHAN NAIR S/O.KANNA KURUP, 82 YEARS, PENSIONER, PAPPINISSERI AMSOM DESOM, KANNUR TALUK, KANNUR DISTRICT.** 2 **RSA.No. 1256 of 2010** - **2 KOTTARATHIL KUNHIKANNAN NAIR, S/O.KANNA KURUP, 81 YEARS, PENSIONER, SATHI VIHAR, KAPPIKKAD, MANAGALORE-4.** - **3 K.MUTHUKRISHNAN NAIR SO.KANNA KURUP, 75 YEARS, PENSIONER, `AYSHARRIYA', KAVADIYAR WEST, THIRUVANANTHAPURAM-3.** - **4 K.RAVINDRAN NAIR, S/O.KANNA KURUP 62 YEARS, `RAVI NIVAS', NEAR SYNDICATE BANK,, AZHIKODE AMSOM DESOM, KANNUR-9.** - **5 KOTTARATHIL KOMALAVALLI AMMA, D/O.KANNA KURUP, 63 YEARS, KULASHEKAR, MANGALORE.** - **6 MRS.SUKUMARI AMMA D/O.NARAYANAN NAIR, 73 YEARS, POOVATHUMPADI HOUSE, KUNDUPARAMBA, KOZHIKODE-5, NOW RESIDING AT PEARL HOUSE, REPUBLICAN ROAD, ERANHIPALAM, CALICUT-6.** - **7 SASIKUMAR S/O.CHANDRASEKHARAN NAIR 53 YEARS, ARTIST, ALL INDIA RADIO KOZHIKODE,, POOVATHUMPADI HOUSE, KUNDAPARAMBA, KOZHIKODE-5, NOW RESIDING AT PEARL HOUSE, REPUBLICAN ROAD, ERANHIPALAM, CALICUT-6.** - **8 KOCHU 43 YEARS LIC ASSISTANT KOZHIKODE, POOVATHUMPADI HOUSE, KUNDUPARAMBA, KOZHIKODE-5, NOW RESIDING AT, PEARL HOUSE, REPUBLICAN ROAD, ERANHIPALAM,, CALICUT-6.** - **9 MINI 40 YEARS, HOUSEWIFE, POOVATHUMPADI HOUSE, KUNDUPARAMBA, KOZHIKODE-5, NOW RESIDING AT, PEARL HOUSE, REPUBLICAN ROAD, ERANHIPALAM,, CALICUT-6.** - **10 GEETHA 38 YEARS, TUTOR, POOVATHUMPADI HOUSE, KUNDUPARAMBA, KOZHIKODE-5, NOW RESIDING AT, PEARL HOUSE, REPUBLICAN ROAD, ERANHIPALAM, CALICUT-6.** - **11 P.VASANTHA W/O.LATE K.RAJAMOHAN NAIR, 63 YEARS, `GURUPRASADAM', POST MAVUMKAL, KANHANGAD, KASARGOD.** - **12 ANJANA D/O.LATE K.RAJAMOHANAN NAIR, 45 YEARS, `GURUPRASADAM', POST MAVUMKAL, KANHANGAD, KASARGOD.** 3 **RSA.No. 1256 of 2010** **13 ANIMA D/O.LATE K.RAJAMOHANAN NAIR, 40 YEARS, `GURUPRASADAM', POST MAVUMKAL, KANHANGAD, KASARGOD.** **14 ANILKUMAR S/O.LATE K.RAJAMOHANAN NAIR, 38 YEARS, `GURUPRASADAM', POST MAVUMKAL,, KANHANGAD, KASARGOD.** **R1 BY ADV.SRI.S.SUJIN** **R2 TO R5 BY ADVS. N.N.SUGUNAPALAN (SR.) S.SUJIN R6 TO R10 BY ADVS.SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 **RSA.No. 1256 of 2010** ## **JUDGMENT** The legal representatives of the third defendant are the appellants in the second appeal. 2. The suit was one for partition. The case set out by the plaintiff in the plaint is that the suit property originally belonged to the tarwad of the plaintiff and the defendants; that the same was mortgaged to one T.D.Nair by the karanavan of the tarwad in the year 1936; that T.D.Nair assigned his rights under the mortgage to one Narayanan Nair; that Narayanan Nair had, in turn, transferred his rights under the mortgage to the third defendant; that one Ibrahim obtained a money decree against the third defendant and purchased the rights of the third defendant in the suit property in execution of the said decree; that Ibrahim later sold the rights obtained by him in the suit property to one Sreedevi Kovilamma; that Sreedevi Kovilamma, in turn, transferred the rights obtained by her in the property to Kanna kurup, the father of plaintiff and defendants and that the rights held by Kanna Kurup in the suit property devolved on the plaintiff and defendants on his death. A decree for partition of the share of the plaintiff in the suit property was, therefore, sought by him in the suit on that basis in his 5 **RSA.No. 1256 of 2010** capacity as one of the legal representatives of Kanna Kurup. 3. The first defendant contested the suit contending that the suit property is not partible as Kanna Kurup had executed a will in respect of the suit property in his favour. Defendants 2 and 4 to 7 supported the plaintiff. The third defendant contended that though the rights held by him in the suit property were sold in execution of a decree obtained by Ibrahim, he was never dispossessed in execution of the said decree and notwithstanding the decree, he is continuing in possession of the property. The trial court accepted the case set up by the first defendant that Kanna Kurup had executed a will in respect of the suit property in his favour and that therefore the suit property is not partible. Though the suit could have been dismissed on that basis, the trial court proceeded to consider the correctness of the contention raised by the third defendant and held that he did not establish independent possession over the suit property as contended by him. Though there was no decree in the suit against the third defendant, he challenged the adverse finding in appeal. The appellate court, on a re-appraisal of the materials on record, confirmed the finding of the trial court that the third defendant did not establish the plea of 6 **RSA.No. 1256 of 2010** independent possession set up by him. The legal representatives of the third defendant are aggrieved by the findings of the courts below as regards the plea of independent possession set up by the third defendant. Hence this second appeal. 4. Heard the learned counsel for the appellants. 5. No appeal is provided under the Code of Civil Procedure against a mere finding. Be that as it may, it is seen that in **Harachandra Das v. Bholanath Das** [(1935) ILR 62 Cal 701], the High Court of Calcutta has held that though under the Code of Civil Procedure, there can be no appeal as against a mere finding, the Courts in India have taken the view that a party to a suit adversely affected by a finding may appeal and the test in such cases as to the maintainability of the appeal is as to whether the finding impugned would operate as res judicata against the appellant in subsequent proceedings. In other words, even going by the said decision, an appeal is maintainable against a finding only if the same would operate as res judicata against the appellant in subsequent proceedings. 6. Coming to the facts of the present case, it is beyond dispute that the third respondent has challenged the adverse 7 **RSA.No. 1256 of 2010** finding in appeal, as according to him, the same would operate as res judicata against him if the first defendant chooses to file a suit against him for recovery of possession of the suit property on the basis of the will executed by Kanna Kurup. It is settled by a long line of decisions that for a judgment to operate as res judicata between or among the co-defendants, it is necessary to establish (1) that there was conflict of interest between co-defendants; (2) that it was necessary to decide the said conflict for the purpose of disposing of the suit and (3) that the Court has actually decided the question. (See **Iftikhar Ahmed v. Syed. Meharban Ali** [(1974) 2 SCC 151] **.** In the instant case, as observed earlier, in so far as it was found that Kanna Kurup had executed a will in respect of the suit property in favour of the first defendant, the plaintiff could have been nonsuited on that basis itself and it was unnecessary for the Court to adjudicate the plea of independent possession taken by the third defendant. It is, therefore, clear that the findings rendered by the courts below on the plea of independent possession taken by the third defendant were unnecessary for the disposal of the suit. The same would not, therefore, operate as res judicata against the third defendant or against the persons claiming under him in a 8 **RSA.No. 1256 of 2010** subsequent suit by the first defendant or by persons claiming under him. In the said view of the matter, according to me, the second appeal is not maintainable and the same is, accordingly, dismissed. **Sd/-** **P.B.SURESH KUMAR** **JUDGE**