Sethumadhavan and Lakshmi v. Santosh Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 22ND DAY OF JUNE 2012/1ST ASHADHA 1934** ## **SA.NO. 495 OF 2001 (A)** **-----------------------------------AS.142/1994 OF DISTRICT COURT, PALAKKAD OS.494/1991 OF MUNSIFF COURT, CHITTUR** ## **APPELLANTS/RESPONDENTS/PLAINTIFFS:** **--------------------------------------------------------------** **1. SETHUMADHAVAN, S/O. RAMAN, PUTHENKALAM, KANNANKODE, KODUVAYUR VILLAGE, CHITTOOR TALUK, PALAKKAD.** **2. LAKSHMI, W/O. RAMAN, RESIDING AT DO. DO. DO.** **BY SENIOR ADVOCATE SHRI N.SUKUMARAN SRI.S.SHYAM SRI.LATHEESH SEBASTIAN SRI.BOBBYMATHEW KOOTHATTUKULAM** ## **RESPONDENT/APPELLANT/DEFENDANT:** **-----------------------------------------------------------** **SANTHOSH KUMAR, S/O.ANANDHAKRISHAN, APPRENTICE, BPL INDIA LTD., RESIDING AT PUTHEBKULAM, KODUVAYUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.T.C.SURESH MENON** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **THOMAS P.JOSEPH, J.** **==================================== S.A. No.495 of 2001 ==================================== Dated this the 21[st] day of June, 2012** ## **J U D G M E N T** The following substantial questions of law are framed for a decision: (i) Is it not illegal to dismiss a suit for nonjoinder of necessary parties without giving an opportunity to cure the defect? (ii) Is not DW1 a defacto party to the case and was it not necessary for the first appellate court to direct his impleadment especially in the light of the directions in the judgment in S.A. No.136/1989? (iii) Is there any legal bar for partition of irrigation tanks or their bunds? 2. This Second Appeal arises from the judgment and decree of learned District Judge, Palakkad in A.S. No.142 of 1994 reversing the judgment and preliminary decree passed by the learned Munsiff, Chittur in O.S. No.494 of 1991. 3. Appellants-plaintiffs sought partition of item Nos.1 and ## **S.A. No.495 of 2001** -: 2 :- 2 of the plaint schedule on the following allegations: 4. The said items originally belonged to Anandhakrishnan and his brother, Aravindakshan as per Ext.A1, partition deed. Anandhakrishnan assigned his half right in item Nos.1 and 2 in favour of the first appellant as per Ext.A2. First appellant assigned half of his half right to the second appellant as per Ext.A3. Respondent got the remaining half right in item Nos.1 and 2 as per Ext.A5, assignment deed executed by Aravindakshan. Thus appellants claimed to be in joint ownership and possession of item Nos.1 and 2 and sought partition and separate possession of their half right. 5. Respondent who was a minor was represented by his father, Anandhakrishnan (who executed Ext.A2 in favour of the first appellant). He raised various contentions relating to the impartibility of the property and that at any rate appellants have only ¼[th] right in the property. He also raised certain contentions as to the user of water from item Nos.1 and 2. 6. May be before framing of issues (I am told, with the leave of the court) respondent filed an additional written statement wherein a contention was raised that Anandhakrishnan (father of respondent who represented him in the suit) is a ## **S.A. No.495 of 2001** ## -: 3 :- necessary party and without him the suit is not maintainable. 7. Learned Munsiff framed issue among others whether the suit is bad for non-joinder of necessary party. Learned Munsiff was of the view that in the absence of details in the written statement or additional written statement in what way Anandhakrishnan has got right over item Nos.1 and 2, there is no obligation on the appellants to implead Anandhakrishnan as a party to the suit. Other contentions raised by the respondent represented by his father, Anandhakrishnan were rejected. A preliminary decree for partition was passed by the learned Munsiff as aforesaid. 8. Respondent challenged that judgment and decree in A.S. No.142 of 1994. In the course of the appeal, respondent introduced assignment deed dated 30.05.1984 as additional evidence. That document was admitted in evidence and marked Ext.B1. Learned District Judge, referring to Ext.B1 held that he has half right in item No.1 of the plaint schedule, Anandhakrishnan is not made a party to the suit and hence the suit is not maintainable. Consequence was a reversal of the judgment and decree of trial court and dismissal of the suit. That judgment and decree of learned District Judge are under challenge in this ## **S.A. No.495 of 2001** ## -: 4 :- Second Appeal. 9. Learned counsel for appellants contended that neither in the original written statement or in the additional written statement there was a contention that Anandhakrishnan got right over item No.1 of the plaint schedule. It is pointed out by the learned counsel that even when Anandhakrishnan was examined as D.W.1, he did not say that he has any right over item No.1 of plaint schedule and at any rate, as per Ext.B1. A further contention learned counsel has advanced is that in the memorandum of appeal preferred in the first appellate court, there was no contention that by virtue of Ext.B1 dated 30.05.1984 Anandhakrishnan got right in item No.1 of plaint schedule. Notwithstanding all the above learned District Judge, acting upon Ext.B1 found that Anandhakrishnan is a necessary party and without even giving an opportunity to the appellants to implead him as a party to the suit allowed the appeal and dismissed the suit. Learned counsel requested that appellants may be given an opportunity to implead Anandhakrishnan as a necessary party and prosecute the case. 10. The learned counsel for respondent contends that even before framing of issues though in the additional written ## **S.A. No.495 of 2001** ## -: 5 :- statement it was contended that Anandhakrishnan is a necessary party to the suit and hence it was obligatory for the appellants to implead Anandhakrishnan as a party to the suit. In such a situation request for remand cannot be allowed. Reliance is placed on the decision in **T. Chacko v. K. Varghese** (AIR 1956 Tra.Co. 181) and **Kalu Amma & Another v. Ammukutty Amma & Another** (1964 KLJ 124). 11. In the decisions relied on by the learned counsel, it is held that when in spite of an opportunity available to a party to implead necessary parties he suffered a dismissal of the suit, the question of remand does not arise. In the former of the above decisions it is held that it is a well recognized rule that if in spite of objection raised at the proper time plaintiff persists in the suit without joining necessary parties the suit has to be dismissed and that he cannot be allowed to remedy the defect in the appeal. In the latter of the decisions it is held that when an objection as to non-joinder of necessary parties is taken at the very outset and the plaintiffs do not implead them, the suit must be dismissed. 12. The propositions stated in the above decisions cannot be disputed. But a decision is authority for the case it actually **S.A. No.495 of 2001** ## -: 6 :- decides. It is also the position of law that if a bald plea as to nonjoinder is raised without stating in what way a person who is not made a party is required to be impleaded, it cannot even give rise to an issue. In this case I have perused the additional written statement where there is not a whisper that Anandhakrishnan has got any right in of the items sought to be partitioned. Equally worse is the situation so far as the contention raised in the additional written statement. There, even when contending that Anandhakrishnan is a necessary party to the suit and notwithstanding that though as guardian he was representing the respondent, he has refused to disclose existence of Ext.B1, assignment deed. In the circumstances I am inclined to think that the trial court was right in holding that the suit cannot be dismissed for non-impleadment of necessary parties. 13. I also notice that in the memorandum of first appeal respondent did not mention Ext.B1 or state that by virtue of that document Anandhakrishnan has got right over item No.1. It is only in the course of evidence, without any plea that respondent introduced the assignment deed dated 30.05.1984 and the learned District Judge was pleased to mark it as Ext.B1. 14. As it stands, Ext.B1 is on record and that document ## **S.A. No.495 of 2001** ## -: 7 :- states that after the death of Aravindakshan, his wife and children executed Ext.B1, assignment deed in favour of Anandhakrishnan concerning the half right Aravindakshan had in item No.1. 15. When Ext.B1 was introduced in the appeal for the first time and that too, in the circumstances stated above, it was appropriate that learned District Judge, rather than dismissing the suit gave the appellants opportunity to implead Anandhakrishnan as a party. For, there was no default or refusal on the part of the appellants in impleading Anandhakrishnan as a party. In that view of the matter I am inclined to think the learned District Judge was not correct in allowing the appeal dismissing the suit. 16. But the mere fact that representing the respondent, Anandhakrishnan also was on record is not sufficient. He has to be impleaded as an additional defendant with right to file written statement on his own. 17. In the light of the circumstances which I have stated above as to the lack of sufficient datas even in the additional written statement and non-mentioning of Ext.B1 even in the memorandum of first appeal preferred before the first appellate court, I hold that the decisions relied on by the learned counsel for respondent have no application to the facts of this case. ## **S.A. No.495 of 2001** ## -: 8 :- 18. In the light of what I have stated above, the case has to go back to the trial court for fresh decision after impleading necessary parties. Hence the question of partibility of the property is left open. 19. Substantial questions of law framed are answered as above. Second Appeal is allowed by way of remand as follows: (i) Judgment and decree of learned District Judge, Palakkad in A.S. No.142 of 1994 and of learned Munsiff, Chirttur in O.S. No.494 of 1991 are set side. (ii) O.S. No.494 of 1991 is remitted to the court of learned Munsiff, Chittur for fresh decision. (iii) Appellants will get opportunity to implead necessary party/parties to the suit. (iv) Both sides will get opportunity to adduce further evidence if they are so advised. ## **S.A. No.495 of 2001** -: 9 :- (v) Parties shall appear before learned Munsiff, Chittur on 10.07.2012. (vi) No costs. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv