Dismissed

Thomas v. Mariamma

Kerala HC5 Dec 2008RSA/875/2008

Case brief

AI extract

What is this about?

In this regular second appeal, the High Court at Ernakulam dismissed the appeal in limine. It held that no substantial question of law arose as the courts below correctly dismissed the suit for partition and separate possession due to misjoinder of parties and causes of action. The court clarified that the plaintiff could file a separate suit for boundary fixation against the sixth defendant.

What the court decided

AI extract

Thomas Vs Mariamma — Partition | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930

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RSA.No. 875 of 2008() --------------------AS.45/2007 of ADDL. DISTRICT COURT, PARAVUR OS.78/2005 of MUNSIFF COURT,ALUVA

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APPELLANT/APPELLANT/PLAINTIFF

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THOMAS, AGED 57 YEARS, S/O. EERALIL KURIAKOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE

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BY ADV. SRI.GEORGE SEBASTIAN

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RESPONDENT(S):

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--------------1. MARIAMMA, AGED 59 YEARS, W/O. EERALIL POULOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE

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ELIYAMMA, AGED 40 YEARS, D/O. EERALIL POULOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE

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RAJU, AGED 38 YEARS, S/O. EERALIL POULOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE

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REENA, AGED 35 YEARS, D/O. EERALIL POULOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE

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VARGHESE, AGED 52 YEARS, W/O. EERALIL POULOSE, NEDUMBASSERY KARA, NEDUMBASSERY VILLAGE

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POULOSE , AGED 64 YEARS, S/O. EERALIL VARIYATH, NEDUMBASSERY KARA NEDUMBASSERY VILLAGE

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V. RAMKUMAR, J.

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*** * * * * * * * * * * * * * * * * * R.S.A. No. 875 of 2008**

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*** * * * * * * * * * * * * * * * * * Dated: 5-12-2008**

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JUDGMENT

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The plaintiff in O.S. No. 78 of 2005 on the file of the Munsiff's Court, Aluva is the appellant in this Second Appeal. The said suit was for partition and separate possession of the plaintiff's share over the plaint schedule property admeasuring 69 cents in Sy. No. 217/9 A of Chengamanad Village after separating 17.25 cents exclusively belonging to the 6^th defendant.

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The plaintiff along with one late Paulose and 5^th defendant Varghese are the sons of one Kuriakose. The first defendant is the widow of the said Paulose and defendants 2 and 4 are his children. The 6^th defendant is the son of Vareed, the brother of plaintiff's father Kuriakose.

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The case of the plaintiff is that the plaintiff and his two brothers together acquired 51.750 cents of

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R.S.A. No. 875 of 2008 -:2:-

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property comprised inSy. No. 271/9A of Chengamanad Village as per pattayam issued in the year 1975 by the Land Tribunal Parakadvu. The said survey number takes in another extent of land admeasuring 17.250 cents belonging to 6^th defendant as per Ext.A1 partition deed dated 20-81962. Since the property of the 6^th defendant and the 51.750 cents acquired by the three brothers as per the pattayam obtained in the year 1975 are lying contiguously without any identifiable boundary in between, it has become necessary for the plaintiff to seek partition of the property covered by the pattayam after separating 17.250 cents belonging to the 6^th defendant.

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As rightly observed by the courts below, the property scheduled to the plaint is not 51.750 which according to the plaintiffs belong to the three co-owners obtained under the pattayam of 1975. But the plaint schedule property is shown as 69 cents which not only includes the pattayam property but also the 17.250 cents of land exclusively belonging to the 6^th defendant who is not

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R.S.A. No. 875 of 2008 -:3:-

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a co-owner along with the plaintiffs and defendants 1 to 5. The suit was, therefore, dismissed by the courts below holding that the plaintiff could not have included the self acquired property of the 6^th defendant along with the coownership property and included the relief of partition and separate possession of his share after separating the property belonging to the 6^th defendant. If the property belonging to the 6^th defendant is lying contiguous to the co-ownership property, the plaintiff had a separate cause of action against the 6^th defendant . Merely because he is not able to identify the 17.250 cents of property belonging to 6^th defendant he could not have clubbed the two causes of action in one suit resulting in misjoinder of parties. Hence the suit was rightly dismissed by the courts below.

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No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The substantial questions of law formulated in this second appeal do not arise for consideration in this second appeal which is accordingly dismissed in limine . It is further made

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R.S.A. No. 875 of 2008

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-:4:-

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clear that the dismissal of the suit shall not preclude the plaintiff from instituting a suit against the 6^th defendant for fixation of boundary of the property admeasuring 51.750 cents covered by Ext.A1 partition deed and the property of the 6^th defendant.

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Dated this the 5^th day of December 2009.

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Sd/-V. RAMKUMAR, (JUDGE)

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/true copy/

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ani.

Thomas v. Mariamma

Case brief

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Thomas v. Mariamma

Case brief

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