Dismissed

Kamala v. Thazhathuveettil Sarala & Anr.

Kerala HC4 Feb 2009RSA/1201/2008

Case brief

AI extract

What is this about?

This second appeal is dismissed. The court held that the lower appellate court erred in deciding the appellant's legal status and title to the property when dismissing a technical cross objection, rendering those findings unnecessary and not binding.

What did the court decide?

The second appeal was dismissed. The appellant is precluded from agitating the question of marital status and title only in a properly instituted suit, as the lower court's finding on this matter was

Kamala Vs Thazhathuveettil Sarala & Anr. — Partition | Kerala HC (2009)

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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

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WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930

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RSA.No. 1201 of 2008() CROSS APPEAL NO.4290 OF 2004 DATED 11.01.08 A.S.NO.328 OF 2004 DATED 11.04.08 ON THE FILES OF THE DISTRICT JUDGE, KOZHIKODE

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O.S.NO.753 OF 2002 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, KOZHIKODE

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APPELLANT/ CROSS APPELLANT/DEFENDANT

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KAMALA, AGED 61 YEARS, W/O KOLIPPURATH KRISHNAN, KOLIPURATH HOUSE, KOTTOOLI AMSOM DESOM, KOZHIKODE.

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BY ADV. SRI.JESWIN P.VARGHESE

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RESPONDENT(S): APPELLANTS/ PLAINTIFFS

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THAZHATHUVEETTIL SARALA, AGED 68 YEARS, D/O IMBICHI, KOTTOOLI AMSOM DESOM, KOZHIKODE.

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KANANGOTTU SARASU, AGED 64 YEARS, D/O.IMBICHI, KOTTOOLI AMSOM DESOM, KOZHIKODE.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V. RAMKUMAR, J.

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= = = = = = = = = = = = = R.S.A.No.1201 of 2008

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= = = = = = = = = = = = = = Dated this the 4th day of February, 2009

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JUDGMENT

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The defendant in O.S.No.753 of 2002 on the file of the Principal Munsiff's Court, Kozhikode-1 is the appellant in this second appeal. The said suit filed by the respondents herein was one for perpetual injunction in respect of the plaint schedule properties which were claimed to be the self acquired properties of one Imbichi. The present suit was tried along with O.S.No.205 of 2002 filed by the same plaintiffs with regard to the ancestral property of the very same Imbichi. The trial court dismissed the suit holding that the appellant was in possession of the plaint schedule properties. The appeal preferred as A.S.No.328 of 2004 before the Additional District Court, Kozhikode by the plaintiffs was got dismissed as not pressed. The appellant had filed a memorandum of cross objection as Cross Appeal No.4290 of 2004 assailing the finding by the trial court that Janu, the wife of Imbichi had half right over the plaint schedule property. Consequent on the dismissal of A.S.No.328

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R.S.A.No.1201of 2008

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of 2004 as not pressed, it was unnecessary for the lower appellate court to take up the cross objection for consideration. In fact, the cross objection was dismissed. However, the lower appellate court decided the legal status of the appellant. Exercise of such a jurisdiction was really unnecessary. Hence, the observations and findings while dismissing the said Cross Objection by the lower appellate court cannot bind the appellant and she will not be precluded from agitating the question of her marital status and title over the property in a properly instituted suit. Clarifying this position, this Second Appeal is dismissed.

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Dated this the 4th day of February, 2009.

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V. RAMKUMAR, JUDGE

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Kamala v. Thazhathuveettil Sarala & Anr.

Case brief

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Kamala v. Thazhathuveettil Sarala & Anr.

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