In a regular second appeal regarding a partition suit, the High Court dismissed the appeal. The appellant contested exclusion of certain documents, but the Court held the new issue regarding share extent was covered by an affidavit accepted by the plaintiff, making remand unjustified after 15 years. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE P.BHAVADASAN
FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932
RSA.No. 42 of 2010() -----------------------------AS.128/2002 of ADDL. DISTRICT COURT, THALASSERY OS.185/1995 of SUB COURT, PAYYANNUR
APPELLANT/APPELLANT/2ND DEFENDANT:
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CHELLAN PUTHIYA PURAYIL MOIDEEN, S/O.MUHAMMED KUNHI, AGED 49 YEARS, RESIDING AT CHERUTHAZHAM AMSOM, DESOM P.O.MANDUR.
BY ADV. SRI.K.C.SANTHOSHKUMAR, SMT.K.K.CHANDRALEKHA, SRI.GOPAKUMAR G. (ALUVA).
RESPONDENTS/1ST RESPONDENTS/PLAINTIFF AND DEFENDANTS:
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1. MAYILANCHIKKAL MUHAMMED KUNHI HAJI, S/O.ABDULLA HAJI, RESIDING AT MADAYI AMSOM, PUTHIYANGADI DESOM, KANNUR TALUK.
2. CHELLAN PUTHIYA PURAYIL ABDUL RAHIMAN HAJI, S/O.SULAIMAN, RESIDING AT MATTOOL AMSOM DESOM, P.O.MATTOOL, KANNUR TALUK.
3. CHELLAN PUTHIYA PURAYIL ABDUL KAREEM RESIDING AT CHERUTHAZHAM AMSOM DESOM, P.O.MANDUR.
4. CHELLAN PUTHIYA PURAYIL MARIYAM HAJUMMA, D/O.AYISUMA, RESIDING AT MATTOOL AMSOM DESOM P.O.MANDUR, KANNUR TALUK.
5. KOTTILE VALAPPIL SIDDIQUE, S/O.AYISUMMA, RESIDING AT EZHOME AMSOM DESOM P.O.EZHOME, KANNUR TALUK.
ADV. SRI.SUNIL NAIR PALAKKAT FOR CAVEATOR R1 & R4 BY ADV. SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No. 42 of 2010
ORDER ON I.A. NO.106/2010 IN RSA NO.42/2010
CLOSED
09/07/2010.
SD/- P.BHAVADASAN, JUDGE
//TRUE COPY//
P.S. TO JUDGE
rs.
P.BHAVADASAN, J.
RSA No.42 of 2010-E ------------------------------------Dated 9th July 2010
Judgment
Aggrieved by the concurrent findings
against him, the second defendant in OS No.185/95 before the Sub Court, Payyannur, has come up before this Court. The facts and parties are hereinafter referred to, as they were available before the Trial Court.
they follow the Marumakkathayam Law. The tharavadu properties were partitioned as per Document No.1764/1935 of SRO, Taliparamba. As per the said partition deed, the plaint schedule property was set apart to the share of
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Moideenkutty, a member of the tharavadu. It was also stipulated in the partition deed that after the death of Moideenkutty, the property shall revert to the five thavazhies in equal proportion. Consequent to the death of Moideenkutty, the property devolved on the five thavazhies of the tharavadu. It was pointed out that later, the third thavazhi became extinct. While so, the first defendant and one Muhammadali purchased the shares belonging to the members of Thavazhy Nos.1, 2, 4 and 5. By subsequent assignments, those shares came to vest with the plaintiff. He, thereafter, moved for partition.
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the plaint schedule property as per Document No.1414/86. Subsequently, the first defendant purchased the right of Ayikkarakath Puthiyapurayil Aboobacker as per Document No.1128/91. The first defendant expressed his willingness to have the property partitioned. He prayed that his share may be allotted separately with future mesne profits.
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disputed. It was contended that the plaintiff has no
manner of right over the plaint schedule property. On the above grounds, the second defendant prayed for dismissal of the suit.
statement, but he did not object to the partition.
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had obtained the plaint schedule property as per Ext.A1 deed and accordingly, passed a preliminary decree as follows :
“In the result, the suit is decreed ; a preliminary decree for partition is passed as follows :
i) That the plaint schedule property be divided into 1680 equal shares and out of which 626 shares shall be allotted to the plaintiff.
ii) That the plaintiff is entitled to future mesne profits from this date till date of delivery of possession or for three years whichever event occurs first. The second defendant is made liable to pay the mesne
profits due to the plaintiff; the quantum of which will be decided in the final decree
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proceedings.
iii) That the costs of the suit shall come out of the estate.
iv) That the plaintiff is at liberty to apply
for passing the final decree. The suit is adjourned sine die."
of the Trial Court, the second defendant carried the matter in appeal as AS No.128/02. In the appeal, two issues were raised. They read as follows :
"1. Whether plaintiff is having any partible interest over the plaint schedule property ?
against the appellant and the appeal was dismissed.
It is the said Judgment and decree that is assailed
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before this Court.
raised only one point before this Court, i.e., the documents produced by him as Exts.B1 and B2 were not considered by the courts below and the claim of the plaintiff that he had purchased the entire shares of that Thavazhy is not correct. According to the learned counsel for the appellant, it is pure miscarriage of justice.
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raised before the lower Appellate Court will not cover the issue now raised before this Court. However, it appears that when the matter was taken up initially by this Court, this Court directed the second respondent in this appeal to file an affidavit on behalf of all the respondents. Accordingly, an affidavit has been filed, which shows that the plaintiff in the suit is entitled to only 60.845 cents of land.
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filed by the second respondent, which is acceptable
to the plaintiff in the suit, there is no reason why the matter should not be given a quietus. The share of the plaintiff is determined as 60.845 cents of land. He will be allotted that extent of land.
With the above observation, the Second Appeal is dismissed. There will be no order as to costs.
P.BHAVADASAN, JUDGE
sta
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2 issues framed by the court
Whether documents asserting purchase of shares were considered by courts below despite being excluded on evidence.
Whether new issues regarding share extent can be considered after 15 years given an affidavit on the extent.
Chellan Puthiya Purayil Moideen
Mayilanchikkal Muhammad Kunhi Haji
Chellan Puthiya Purayil Abdul Rahiman Haji
Chellan Puthiya Purayil Abdul Kareem
Chellan Puthiya Purayil Mariyam Hajumma
Kottile Valappil Siddique
P. Bhavadasan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
