Salahudheen v. Asumma Beevi and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 11TH DAY OF NOVEMBER 2016/20TH KARTHIKA, 1938 FAO (RO).No. 160 of 2014 () ---------------------------- AGAINST THE JUDGMENT DATED 31-01-2014 IN RFA NO. 55/2004 of SUB COURT,KOTTARAKKARA AGAINST THE JUDGMENT DATED 27-11-2003 IN OS NO. 399/2000 of MUNSIFF COURT, KOTTARAKKARA APPELLANT/RESPONDENT NO.3/DEFENDANT NO.3: ------------------------------------------- SALAHUDHEEN, AGED 60 YEARS, S/O. SULAIMAN RAWATHER, ERAPPUPARAYIL VEEDU, THEVANCODU MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK, PIN-691 516. BY ADVS.SRI.T.B.HOOD SMT.M.ISHA RESPONDENTS/APPELLANT AND RESPONDENTS 1,2 & 4 TO 12/PLAINTIFF AND DEFENDANTS 1,2 & 4 TO 7: -------------------------------------------------------------------------------------------- 1. ASUMMA BEEVI, AGED 68 YEARS, W/O. AMEERKANNU MUSALIAR, HABEEBULLA MANZIL, CHERIYAVELINALLOR MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK- PIN 691 516. 2. ABDUL HAMEED RAWATHER (DIED) S/O. SULAIMAN RAWATHER, ERAPPUPARAYIL VEEDU, THEVANCODU MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK- PIN 691 516. 3. NOOR HAMEED RAWATHER , AGED 75 YEARS, S/O. SULAIMAN RAWATHER, ERAPPUPARAYIL VEEDU, THEVANCODU MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK- PIN 691 516. 4. THANKACHI PILLAI, AGED 75 YEARS, W/O. ISMAIL RAWATHER, PARAVILA VEEDU, ARKANNOOR, KARALIKONAM MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK- PIN 691 533. 5. NAFISA, W/O. ABDUL RAWATHER, THRIKKAIKARA, PADINJARA VEEDU, EROOR MURI, EROOR VILLAGE, PATHANAPURAM TALUK- PIN 691 312. 6. ABIDA , AGED 62 YEARS, W/O. NOOHUKKANNU RAWATHER, THODIYIL VEEDU, MATHRA MURI, KARAVALOOR VILLAGE, PATHANAPURAM TALUK- PIN 691 315. 7. NAZEEMA BEEVI (KULSAM BEEVI), AGED 56 YEARS, ALUMKUNNIL VEEDU, KAITHODU MURI, NILAMEL VILLAGE, KOTTARAKKARA TALUK- PIN 691 535. FAO(RO) NO.160/2014 2 8. JAMEELA BEEVI, AGED 70 YEARS, W/O. ABDUL HAMEED RAWATHER, IRAPPUPARAYIL VEEDU, THEVANKODU MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK- PIN 691 516. 9. ISHA BEEVI, AGED 48 YEARS, D/O. JAMEELA BEEVI, IRAPPUPARAYIL VEEDU, THEVANKODU MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK-PIN 691 516. 10. ABUSHIA , AGED 43 YEARS, D/O. JAMEELA BEEVI, IRAPPUPARAYIL VEEDU, THEVANKODU MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK-PIN 691 516. 11. ANEESA , AGED 38 YEARS, D/O. JAMEELA BEEVI, IRAPPUPARAYIL VEEDU, THEVANKODU MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK-PIN 691 516. 12. RAJEENA , AGED 34 YEARS, D/O. JAMEELA BEEVI, IRAPPUPARAYIL VEEDU, THEVANKODU MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK-PIN 691 516. ## R1 BY ADVS. SRI.B.K.GOPALAKRISHNAN SRI.PLEASANT.T.SAMUEL THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 11-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **--------------------------------------** ## **F.A.O.(RO). No.160 of 2014 -------------------------------------Dated this the 11[th] day of November, 2016** ## **JUDGMENT** The 3[rd] defendant in O.S.No.399 of 2000 on the file of the Court of Munsiff, Kottarakkara is the appellant in this appeal. Plaintiff in the suit preferred R.F.A.No.55 of 2004 before the Court of Subordinate Judge, Kottarakkara, challenging the dismissal of a suit for fixation of boundary and partition. The lower appellate court allowed the appeal and remanded the case with certain directions. Aggrieved by the directions in the remand order, the 3[rd] defendant has come up in appeal. 2. Heard the learned counsel for the appellant/3[rd] defendant and the 1[st] respondent/plaintiff. 3. Plaintiff is sister of the defendants. The plaint schedule properties belonged to their father Sulaiman Rawather. He executed a settlement deed bearing No.949 of 1980 of the Sub Registrar Office, Oyoor (Ext.A1). According to the plaint averments, the property shown in E schedule to Ext.A1 was allotted to the plaintiff. Although, there was a life interest created in favour of Sulaiman Rawather, on his death, she got absolute right over the property. There was no boundary put up to separate the properties included in Ext.A1. Since the defendants raised 2 FAO(R) No.160/2014 untenable contentions, the plaintiff approached the court for the reliefs mentioned above. 4. The 1[st] defendant remained absent. The defendants 2 to 7 filed a joint written statement. They contended that the suit is not maintainable. They admitted the execution of Ext.A1 by Sulaiman Rawather. However, they contended that Ext.A1 did not take effect. If is further contended that deceased Sulaiman Rawather subsequently cancelled Ext.A1 by executing a document bearing No.1921 of 1985 of the same Sub Registrar's Office, which is marked as Ext.B4. Ext.A1 settlement deed never came into force and the plaintiff has not obtained any title or possession as per Ext.A1. The suit is a misconceived action and therefore liable to be dismissed. 5. The trial court framed issues and tried the suit. Exts.A1 to A4 and B1 to B13 are the documents marked. PW1 and DW1 testified before the court. The trial court found that prayer for fixation of boundary was not allowable for the reason that the plaintiff has not even taken out a commission to identify the properties. It also found that deceased Sulaiman Rawather had executed several documents in respect of the plaint schedule properties after cancellation of Ext.A1. Therefore the suit as framed was found to be not maintainable. 6. The 1[st] respondent/plaintiff took up the matter in appeal. The 3 FAO(R) No.160/2014 lower appellate court, after considering the evidence in the case, agreed with the finding of the trial court that the suit as framed is not maintainable. However, the lower appellate court accepted the contention of the counsel for the plaintiff that they must be given an opportunity to amend the plaint, by incorporating a relief of declaration of title and recovery of possession. Further, the lower appellate court found that an opportunity to take out a commission also should be given to the plaintiff. It is pertinent to note that no application for amendment of the plaint was filed before the lower appellate court. Still the court remanded the case to the trial court for affording the plaintiff an opportunity to make suitable amendments to the plaint. 7. Learned counsel for the appellant contended that the remand order passed by the lower appellate court is legally unsustainable. According to him, the lower appellate court failed to consider that the request made by the 1[st] respondent/plaintiff could not have been granted for the reason that it is hopelessly barred by the law of limitation. My attention is drawn to certain averments in the written statement. In paragraph 3 of the written statement, following averments are made: _“The averments in para 2 of the plaint are not fully correct. It is true that Sulaiman Rawther had executed a settlement deed No.949/1980. But the said settlement deed was cancelled by_ 4 FAO(R) No.160/2014 _Sulaiman Rawther through a cancellation deed No.1921 dated 24.10.1985 of Oyoor Sub Registry Office. The deceased Sulaiman Rawther had right to cancel the settlement deed No.949/1980. Thus the said settlement deed No.949/1980 had never came into force. It had not been accepted by the donee. The said settlement has no legal validity at all. The plaintiff is not entitled to claim any right over the plaint schedule property through the said settlement deed.”_ On the basis of the above contentions, it was argued that the 1[st] respondent/plaintiff was put to notice of cancellation of Ext.A1 as early as on 09.08.2002 through the written statement. 8. Thereafter, when the plaintiff was examined as PW1, in crossexamination, she had candidly admitted that she was aware of the execution of Ext.B4 in the year 2000 itself. Therefore, there cannot be any doubt that the plaintiff was fully aware of the cancellation of Ext.A1 and also about execution of Ext.B4. Now the question is whether the lower appellate court is legally justified in remanding the case for allowing the 1[st] respondent/plaintiff to amend the suit by incorporating a declaratory relief affecting the said documents. Insofar as law of limitation is concerned, the period of limitation prescribed in Article 58 of the Limitation Act, 1963 (in short, “the Act”) is relevant. It says that to obtain any declaration other than those mentioned in Articles 56 and 57 of the Act, the period of limitation is 5 FAO(R) No.160/2014 three years from the date when the right to sue first occurs. If we look at the issue from the angle of cancellation of Ext.A1, then the provision applicable is Article 59 of the Act. As per this Article, to cancel or set aside an instrument or decree or for the rescission of a contract, the period prescribed is three years. The starting point is when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. In any view of the matter, let it be Article 58 or Article 59 of the Act, it would show that the period prescribed for taking a recourse against Ext.B4 had expired much before. Therefore, the omission to consider this aspect is a serious lapse on the part of the lower appellate court. 9. The learned counsel for the appellant relying on **Muni Lal v. Oriental Fire & General Insurance Co. Ltd. ((1996) 1 SCC 90), Vijendra Kumar Goel v. Kusum Bhuwania ((1997) 11 SCC 457)** and **South Konkan Distilleries v. Prabhakar Gajanan Naik ((2008) 14 SCC 632)** contended that any plea, which is barred by limitation, cannot be allowed to be raked up causing detriment to the other side. Recently, Apex Court in **L.C.Hanumanthappa v. H.B.Shivakumar ((2016) 1 SCC 332)** has enunciated the law in the following words: _“Given this statement of the law, it is clear that the present amendment of the plaint is indeed time-barred in that the right to sue for declaration_ 6 FAO(R) No.160/2014 _of title first arose on 16-5-1990 when in the very first written statement the defendant had pleaded, in Para 13 in particular, that the suit for injunction simpliciter is not maintainable in that the plaintiff had failed to establish title with possession over the suit property. The only question that remains to be answered is in relation to the doctrine of relation back insofar as it applies to amendments made under Order 6 Rule 17 of the Code of Civil Procedure.”_ Thus, it is very clear that a relief, which is prohibited by the law of limitation, cannot be allowed to be resurrected by way of an amendment. Hence the view taken by the lower appellate court that the matter has to go back to the trial court for considering the scope of an amendment application is legally incorrect. Hence it is set aside. 10. Another legal infirmity pointed out by the learned counsel for the appellant is that during pendency of the suit, the 1[st] defendant died in December, 2001. His legal representatives were not impleaded during trial. They were impleaded only in the first appeal, that too, after three years. Therefore the suit is clearly barred against deceased 1[st] defendant. 11. Now the further question arising for consideration is whether, in the nature of the pleadings and reliefs claimed, the suit can be proceeded with. In otherwords, the question for consideration is whether in a suit for partition and fixation of boundary, can a decree stand without 7 FAO(R) No.160/2014 arraigning all the parties in the party array. Admittedly, the deceased 1[st] defendant was also a beneficiary of Ext.A1 or Ext.B4 as the case may be. His death and consequent abatement of the suit had caused an impact on the decree passed by the trial court. It is trite that a decree passed against a dead person is a nullity in law. When we consider the reliefs now claimed by the 1[st] respondent/plaintiff, it goes without saying that the suit claim cannot be severed or divided. Therefore the whole decree may have on the question of abatement. 12. The learned counsel for the 1[st] respondent contended that he has filed an application for issuance of a commission before the trial court. It is true that in a suit for fixation of boundary, identification of property is highly essential. The trial court found fault with the plaintiff for not taking out a commission to identify the property. However, after remand, the 1[st] respondent/plaintiff has approached the trial court with such an application. But, as I find that the remand itself is bad, the remedy of the plaintiff is only to approach the court below with such an application, if law permits. 13. For the aforementioned reasons, I am of the view that the court below has committed a legal wrong in remanding the case to the trial court, without discharging the obligation vested in the first appellate court. Learned counsel for the appellant placed reliance on **Vijayan v. Jayaprabha (2016 (1) KLT 731)** to contend that what is deprecated in the 8 FAO(R) No.160/2014 above decision has been done in this case. It is laid down that a remand shall not be made as a matter of course and concluded matters shall not be re-opened by an order of remand. Therefore, I find no justification for remanding the case. In the result, the appeal is allowed. The impugned remand order is set aside and the matter is remitted to the lower appellate court. It is made clear that any sort of amendment suggested by the lower appellate court will be barred by limitation and it shall not be allowed for any reason. The lower appellate court shall consider legal effect of the death of 1[st] defendant pending the suit. The lower appellate court shall dispose of the matter in accordance with the observations made above, after hearing both sides. The parties are directed to appear before the lower appellate court on 30.11.2016. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks**