Thottappayil Suresan and others v. A.P.Gopalakrishnan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY ,THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940** **RSA.No. 690 of 2005** **AGAINST THE ORDER DATED 15-03-2005 IN I.A. 2145/2003 IN AS 282/2003 DISTRICT COURT,KOZHIKODE** **AGAINST THE JUDGMENT AND DECREE DATED 07-03-2003 IN OS 356/2002 of III ADDL.SUB COURT, KOZHIKODE** **- APPELLANTS IN R.S.A APPELLANTS 1 TO 3,5 & 6 IN THE LOWER - APPELLATE COURT NOT PARTIES TO O.S:** **1 THOTTAPPAYIL SURESAN, S/O SUKUMARA MENOKY, BEYPORE AMSOM DESOM, KOZHIKODE.** - **2 -DO-VILASINI, D/O. DO. IN DO.** **3 -DO-BALAN, S/O.DO. IN DO.DO.** **4 -DO-PADMAJA, D/O. DO. IN DO. DO.** - **5 -DO- ANILKUMAR S/O. DO. IN DO. DO.** **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR (SR.) SRI.P.B.KRISHNAN** **- RESPONDENTS 1 TO 6 IN R.S.A. RESPONDENTS 2 TO 7 IN THE LOWER - APPELLATE COURT PLAINTIFFS 2 TO 7 IN SUIT/ RESPONDENT NO.7 IN R.S.A.- RESPONDENT NO.8 IN THE LOWER APPELLATE COURT-DEFENDANT - NO.1 IN SUIT/RESPONDENT NO.8 IN R.S.A. RESPONDENT NO.9 IN THE - LOWER APPELLATE COURT D2 IN SUIT/RESPONDENT NO.9 IN R.S.A. - APPELLANT NO.4 IN THE LOWER APPELLATE COURT NOT PARTY TO SUIT:** **1 A.P.GOPALAKRISHNAN S/O DAMODARAN NAIR, DAMODAR NIVAS, P.O.CHERUPPA, KOZHIKODE.** **RSA.No. 690 of 2005 2** - **2 A.P.BALRAJ S/O. DO.MANGALAM NELLIKODE AMSOM DESOM, P.O.CHEVAYUR, KOZHIKODE.** - **3 A.K.ASHOK KUMAR S/O. DO. SREEPADAM IN DO. DO.** - **4 A.P.VIJAYAKUMAR S/O. DO. DAMODAR NIVAS CHERUPPA P.O. KOZHIKODE TALUK.** - **5 A.P.RAJMOHAN S/O. DO. IN DO. DO.** - **6 K.A.PREETHA D/O. DO. IN DO. DO.** - **7 K.A.SHYLAJA D/O.K.C.BALAKRISHNAN NAIR RESIDING AT VETTORKANDIYIL, CHERUPPA P.O., KOZHIKODE TALUK.** - **8 K.A.GOPINATHA MENOKY S/O. DO. RESIDING VETTORKANDIYIL VEEDU, CHERUPPA P.O. MAVOOR,, KOZHIKODE TALUK.** - **9 THOTTAPPAYIL GOPINATHAN S/O.SUKUAMRA MENOKY, RESIDING AT BEYPORE AMSOM, AND DESOM, KOZHIKODE.** **R8 BY P.VIJAYAKUMAR, K.M.KURIAN ADVS.** - **R1 TO SMT.PRABHA.R.MENON, M.KRISHNAKUMAR R6 BY ADVS.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No. 690 of 2005 3** **C.R** ## **JUDGMENT** Aggrieved by the decree and judgment in O.S.No.356/2002 of the Addl.Sub Court, Kozhikode, the appeal in A.S.No.282/2003 was filed before the District Court, Kozhikode by the appellants, who are not party to the original suit, along with an application in I.A.No.2145/2003 for permitting them to prefer the said appeal as 'aggrieved persons'. The First Appellate Court dismissed the said application and consequently the first appeal was also dismissed which is under challenge in this second appeal filed by appellants 1 to 3, 5 and 6 in the First Appellate Court. 2. The original suit was filed for partition and a preliminary decree was passed. The appellants were not made as party to the suit though the plaint schedule item No.4 property is exclusively belonging to them. _Interalia,_ it was contended that they are in possession and enjoyment of the property and that the property is not available for partition. They claimed that their father, Sukumara Menoky and his brother, Padmanabha Menoky acquired leasehold right over the plaint schedule ## **RSA.No. 690 of 2005 4** item No.4 property on 18/05/1997. Subsequently, they partitioned the property in the year 1997 and the plaint schedule item no.4 was allotted to Sukumara Menoky. He had purchased the Jenm right over the property from the Land Tribunal, and hence, the property is not available and not liable for partition. On the other hand, the respondents/plaintiffs and defendants contested the application asserting that the property was belonging to their predecessor and is liable to be partitioned and the appellants/3[rd] parties have no locus standi to prefer the appeal. 3. The learned District Judge dismissed the application as well as the appeal holding that their remedy lies somewhere else and that they can obstruct execution of the decree or to file a separate suit for agitating their grievance and that they are not 'aggrieved persons' to prefer an appeal against the preliminary decree and judgment granting partition. 4. The main controversy centers around the question whether an appeal is maintainable in the hands of a person who is not a party to the decree suit and whether the right of appeal inheres on any other person other than a party to suit/decree. **RSA.No. 690 of 2005 5** 5. **A right of suit is always available to an aggrieved person in a civil dispute unless the same is barred by any statute, but a right of appeal sprouts and germinates from an adjudication of right of parties either by a decree conclusively determining the rights of parties with regard to all or any of the matters in controversy in a suit or proceeding and also from an order of determination of any question either interim or final or rejection to take up any civil dispute for determination on any procedural violation or non compliance of a requirement and essentially resting on the dispute between the parties to the lis and the persons litigating under them and none else** . 6. In _**Smt.Ganga Bai v. Vijay Kumar and others (AIR 1974 SC 1126),**_ Apex Court had considered the basic distinction between a right of appeal and right of suit in the following lines: _“there is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.”_ **RSA.No. 690 of 2005 6** 7. In **Smt. Jatan Kanwar Golcha v. M/s Golcha** **Properties (P) Ltd** ., 1970(3) SCC 573, Apex Court had considered the right of appeal in a company matter and held as follows: _“It would be a travesty of justice if a party is driven to file a suit which would involve long and cumbersome procedure when an order has been made directly affecting that party and redress can be had by filing an appeal which is permitted by law. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such a leave should be granted if he would be prejudicially affected by the judgment.”_ 8. The question was again came up before the Apex Court in _**Banarsi and others v. Ram Phal (AIR 2003 SC**_ _**1989)**_ and the legal position was summarized in paragraph 8 of the said decision thus: _“Section 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal.”_ ## 9. Who is an aggrieved person for the purpose of enabling him to prefer an appeal though he is not a party to the _lis_ should be understood apart from the right of a suit, but based on the origination of a 'cause' to prefer an appeal and hence stands for a person who is bound by the decree though he is not a party to the _lis_ . **The** **person who is bound by the decree though he is not a** **RSA.No. 690 of 2005 7** **party to the** _**lis**_ **alone can bring up an appeal either under Section 96 or under Section 100 of the Code of Civil Procedure, apart from the right of parties to the** _**lis.**_ **It shall not be a device or a shortcut method in the hands of a person who is not bound by the decree to defeat the adjudication rendered, by entertaining an entirely different claim which was not the subject of the** _**lis**_ **. It is also not permissible to bring back the** _**lis**_ **to the Trial Court under the guise of addressing a claim which was not the subject of the** _**lis**_ **. In order to bring a person in the status of 'an aggrieved person' it must be shown that in spite of the fact that he is not a party to the suit or decree, he would stand bound by the decree like in the case of** _**pendente lite**_ **transferee, a person holding estate (subject matter of suit) in common with a party to the suit, a person otherwise bound by the decree with respect to any estate substantially represented in the suit, in a representative suit under Order 1 Rule 8 CPC, property held by and represented through a trustee or a suit relating to the property of perpetual minor, religious congregation etc. The test available to find out 'an aggrieved person' for the purpose of enabling a right of appeal lies on the question whether he is bound** **RSA.No. 690 of 2005 8** **by the decree in spite of his non inclusion as a party to the** _**lis**_ **.** 10. In the instant case, the appellants are not litigating under any of the persons/parties to the _lis_ . No case of common interest or common estate with any of the parties to the _lis_ was brought up or let in. No case of minority or representation was also taken up or brought up. It is a decree and judgment granting partition of immovable properties among the siblings, who claims devolution of successive interest from a common ancestor. The claim of appellants entirely resting on different proprietary right based on an oral lease. Hence, they are not bound by the decree under challenge. Hence, they cannot usurp the right of appeal and cannot step into the shoes of 'an aggrieved person' with the right of appeal. Hence the second appeal deserves only dismissal, I do so, but without costs. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** msp //TRUE COPY// P.A. TO JUDGE