R.S.A. No.186 of 2023

**RSA NO. 186 OF 2023** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946** **RSA NO. 186 OF 2023** **AGAINST THE JUDGMENT AND DECREE DATED 16.09.2022 IN AS NO.11 OF 2021 OF DISTRICT COURT, PALAKKAD AGAINST THE JUDGMENT AND DECREE DATED 30.11.2020 IN OS NO.457/2016 OF ADDITIONAL MUNSIFF'S COURT, PALAKKAD** ## **APPELLANTS/APPELLANTS IN AS 11/2021/DEFENDANTS IN OS** **NO.457/2016:** |**1**|**R.RADHAKRISHNAN**| |---|---| ||**AGED 58 YEARS, ADVOCATE**| ||**S/O. LATE BALAKRISHNAN, PANAMTHODY,**| ||**NOW RESIDING AT "KRISHNAPADAM",**| ||**PIRAYIRI POST, PIRAYIRI AMSON,**| ||**PALAKKAD, PIN - 678004**| |**2**|**B.PRATHAPAN**| ||**AGED 56 YEARS**| ||**S/O LATE BALAKRISHNAN**| ||**PANAMTHODY**| ||**NOW RESIDING AT KRISHNANPADAM**| ||**PIRAYIRI POST, PIRAYIRI AMSOM**| ||**PALAKKAD, PIN - 678004**| |**3**|**B.KALADHARAN**| ||**AGED 54 YEARS**| ||**D/O LATE BALAKRISHNAN**| ||**PANAMTHODI**| ||**NOW RESIDING AT KRISHNAPADAM**| ||**PIRAYIRI POST, PIRAYIRI AMSOM**| ||**PALAKKAD, PIN - 678004**| |**4**|**B.LAVANYALATHA**| ||**AGED 52 YEARS**| ||**D/O LATE BALAKRISHNAN**| ||**PANAMTHODI**| ||**NOW RESIDING AT VRINDAVANAM**| ||**PIRAYII POST, PIRAYIRI AMSOM**| **RSA NO. 186 OF 2023** **2** **PALAKKAD, PIN - 678004 REP BY HER MOTHER AND POWER OF ATTORNEY DEVAYANI, AGED 82 YEARS W/O LATE BALAKRISHNAN RESIDING AT KRISHNA PADAM PIRAYIRI POST, PIRAYIRI AMSOM PALAKKAD, PIN - 678004** **BY ADVS. M.P.RAMNATH BEPIN PAUL S.SANDHYA SHALU VARGHESE K.S AKSHAY MOHAN S.DEEPAK P.RAJESH (KOTTAKKAL) M.VARGHESE VARGHESE ANTONY THARIAN** ## **RESPONDENTS/RESPONDENTS IN AS 11/2021/PLAINTIFFS IN OS** **457/2016:** **1 RUGMINI AGED 72 YEARS W/O LATE BALAKRISHNAN R.V.P PUDUR ERUTHEMPATHY VILLEGE CHITOOR TALUK, PALAKKAD DISTRICT, PIN - 678555 2 KALAVATHY AGED 56 YEARS D/O LATE BALAKRISHNAN R.V.P PUDUR ERUTHEMPATHY VILLEGE CHITOOR TALUK, PALAKKAD DISTRICT, PIN - 678555 3 MURUKAVENI AGED 54 YEARS D/O LATE BALAKRISHNAN R.V.P PUDUR, ERUTHEMPATHY VILLEGE CHITOOR TALUK, PALAKKAD DISTRICT, PIN - 678555 4 BABY AGED 48 YEARS D/O LATE BALAKRISHNAN** **RSA NO. 186 OF 2023** **3** **R.V.P PUDUR, ERUTHEMPATHY VILLEGE CHITOOR TALUK, PALAKKAD DISTRICT, PIN – 678555** **BY ADV.SRI.RAJESH SIVARAMANKUTTY** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2023, THE COURT ON 22.05.2024 DELIVERED THE FOLLOWING:** **RSA NO. 186 OF 2023** **4** **T.R. RAVI, J.** **--------------------------------------------** R.S.A. No.186 of 2023 -------------------------------------------Dated this the 22nd day of May, 2024 ## **JUDGMENT** The defendants in a suit for partition have filed this appeal, being aggrieved by the concurrent findings in the judgment and decree of the trial court and the First Appellate Court. The parties are referred to as per their status before the trial court. 2. The suit was for the partition of plaint schedule items 1 & 2 which originally belonged to late Balakrishnan. The 1[st] plaintiff is the first wife of late Balakrishnan and plaintiffs 2 to 4 are the children of Balakrishnan in the 1[st] plaintiff. The defendants are the children of Balakrishnan through one Devayani. When the demand by the plaintiffs for partition and separate possession was not accepted, the suit was filed seeking partition and separate possession of 5/9 shares out of the plaint schedule property after partitioning the property by metes and bounds. Originally the plaint was filed incorporating plaint schedule item No.1 property alone and during the pendency of the suit, the plaint was amended, and plaint schedule item No.2 was also included. **RSA NO. 186 OF 2023** **5** 3. The defendants contended that the plaint schedule item No.1 property originally belonged to the father of Balakrishnan named Raghava Panicker, that after the death of the Raghava Panicker, the properties devolved upon his wife and children, that a division had been effected between the defendants as per partition deed No. 827/1982 of Palakkad Sub Registry, that the defendants are in exclusive ownership of the plaint schedule property, that defendants 2 to 4 released their right over the property to the first defendant as per Document No.5374/2006 of Palakkad Sub Registry, and that the first defendant constructed a house in the plaint schedule item No.1 property and has exclusive possession and enjoyment of the property. As regards plaint schedule item No.2 property, it is contended that the defendants executed a partition deed as Document No.895/2002 of the Palakkad Sub Registry and they are in exclusive possession and enjoyment of their respective shares. They contend that the rights, if any, of the plaintiffs have been lost by adverse possession and limitation. 4. The suit was decreed by the trial court. The defendants filed A.S.No.11 of 2021 before the District Court, Palakkad. It was contended in the appeal that the parties are governed by Mithakshara Coparcenary and being the only male members, the **RSA NO. 186 OF 2023** **6** defendants were coparceners entitled to right by birth. They also contended that the trial court went wrong in rejecting their claim of adverse possession and ouster. 5. The First Appellate Court dismissed the appeal finding that the contention regarding Mitakshara Coparcenary cannot be accepted since there is no pleading and proof regarding the date of death of Raghava Panicker, the father of Late Balakrishnan, that in the earlier partitions set up in defence, admittedly, the wife and daughter was given share (though the wife gave up the share and accepted a right to reside), which negates the contention of Mitakshara Coparcenary. Concerning the claim of adverse possession and ouster, the Appellate Court found that the admission of the plaintiffs regarding possession of the defendants or construction of a building by the 1[st] defendant in the plaint schedule item No.1 property or the construction by the 4[th] defendant in plaint schedule item No.2 property, will not be sufficient to prove ouster among co-owners. The court relied on the judgment of the Hon’ble Supreme Court in **Vidhya Devi v. Prem Prakash and Ors (1995(4) SCC 496)** , wherein it was held that there should be an open assertion of hostile title. 6. Even though several grounds and six substantial questions of law have been formulated in the memorandum of **RSA NO. 186 OF 2023** **7** regular second appeal, the counsel for the appellant confined his arguments to two contentions; (i) that the judgment of the trial court was without jurisdiction and (ii) that the question regarding ouster has not been properly considered by the trial court as well as the First Appellate Court. Regarding the first question raised, the contention of the appellants is that the suit was originally filed claiming partition of only one item and the valuation shown was ₹10,00,000/- so as to bring it within the pecuniary jurisdiction of the Munsiff Court. It is stated that though the plaint was amended to include one additional property, the valuation in the plaint was not amended. According to the counsel, once an additional item is included necessarily the valuation would exceed ₹10,00,000/- and the Munsiff Court would no longer have the pecuniary jurisdiction to continue with the suit under Section 11(2) of the Kerala Civil Courts Act, 1957 as amended by the Kerala Civil Courts (Amendment) Act, 2013. It is contended that a proper understanding of the effect of Section 12 of the Kerala Court Fees and Suits Valuation Act, 1959 (hereinafter referred to as 'CF Act') and Section 21 of the Code of Civil Procedure can only lead to the conclusion that the suit was beyond the pecuniary jurisdiction of the Munsiffs’ Court and consequently the judgment and decree of the trial court were without jurisdiction. Section **RSA NO. 186 OF 2023** **8** 12(2) of the CF Act requires a defendant, to plead that the subject matter of the suit has not been property valued or that the fee paid is not sufficient, through a written statement filed before the first hearing of the suit or before evidence is recorded on merits of the claim but not later, subject to Section 12(3). It further says that all questions arising on such pleas shall be heard and decided before evidence is recorded, affecting such defendant, on the merits of the claim. Even if the court decides that the subject matter of the suit has not been properly valued, the court must fix a date before which the plaint has to be amended in accordance with the court's decision and the deficit fee if any paid. It can thus be seen that any question regarding valuation is a matter which must be decided by the court prior to the taking of evidence. Section 21(2) of the Code of Civil Procedure says that no objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court, unless such objection was taken in the court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. The counsel for the appellants contends that the plea regarding valuation had been raised in the first instance and hence the question regarding **RSA NO. 186 OF 2023** **9** a consequent failure of justice would not arise. According to the counsel, even though the contention had been raised, the same was not gone into by the trial court. The counsel for the respondents, who entered appearance at the stage of admission, contended that the arguments put forward on behalf of the appellants cannot be legally sustained in view of the judgment of this Court in **Mercy Joseph Mary Joseph V. M.A.Devassy (2012 (3) KLT 288)** . This Court held that going by the scheme of Section 12 of the CF Act, it is not sufficient that the party raised a plea in the written statement that the suit is not properly valued, but he has to alert the court before recording of evidence commences, about the question raised in the written statement, and invite a decision on that question. This Court held that the court has a duty to decide such questions before recording of evidence commences. In the case on hand, the appellant does not have a case that the court was ever alerted about this aspect and a decision on the question was invited. It is also evident on a reading of the judgment of the First Appellate Court that no contention was taken regarding the valuation of the suit in the First Appellate Court also. In **Mercy Joseph (supra)** this Court held that in view of Section 21(2) of the Code of Civil Procedure, an objection regarding the competence of the trial court with **RSA NO. 186 OF 2023** **10** reference to pecuniary limit cannot be allowed by the appellate or revisional court unless such objection was taken in the court at the first instance and unless there has been a consequent failure of justice. After considering the meaning of the term “consequent failure of justice” with reference to the judgment of the Hon'ble Supreme Court, the court in the said case went on to hold that there was no failure of justice because of incorrect finding regarding the valuation. The counsel for the appellants submitted that if the question of jurisdiction was also involved, there is nothing wrong in the Appellate Court going into the question regarding valuation. I do not think this is a fit case to go into such questions. The Hon'ble Supreme Court in **Rafique Bibi (D) by LRs. V. Sayed Waliuddin (D) by Lrs. and Ors. (AIR 2003 SC 3789)** considered the question of a decree being void and held that a decree can be said to be without jurisdiction, and hence a nullity, if the Court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in nullity. The court found that the lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail. This is **RSA NO. 186 OF 2023** **11** a case in which the plaintiffs had earlier approached a civil court for a declaration that they are legal heirs of deceased Balakrishnan which became final only with the judgment in the Second Appeal No.568/1987. It is after establishing their right as legal heirs of Balakrishnan that the suit for partition was filed. The appellants have been denying the rightful claims of the plaintiffs for their share in the property of late Balakrishnan and holding on to the properties all these years. The rights of the plaintiffs cannot be made illusory by the fault of the appellants themselves in not inviting a decision under Section 12(2) of the CF Act with regard to valuation before the suit proceeded for evidence. Not only did they invite a decision on that point by the trial court before the recording of evidence, but they also did not raise such a contention before the First Appellate Court. A contention taken in the second appeal for the first time, though supported by pleadings, cannot be entertained as a substantial question of law. It is also significant that though it is contended that the question of valuation had been raised in the written statement, the appellants did not choose to give any oral evidence in support of the contention regarding the valuation of the property. As such, questions raised in that regard cannot be treated as substantial questions of law. With regard to ouster **RSA NO. 186 OF 2023** **12** also, the defendants did not enter the box and give any evidence regarding ouster. A mere allegation in the written statement is not sufficient to prove ouster. As held by the trial court and the First Appellate Court it is not sufficient that the defendants show that they are in possession for several years. The trial court as well as the First Appellate Court have arrived at the right conclusion applying the correct law. No interference is warranted, and the second appeal is dismissed. Sd/- **T.R. RAVI** **JUDGE** Pn