Partly allowed

Gopikrishnan v. Rajamma

Kerala HC11 Jan 2017RSA/637/2016

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a second appeal challenging dismissal based on Girija v. Rajan. It held that Girija was overruled by this Court in Cholapllakkal Abdul Nazer, permitting a single appeal against composite decrees. The appeal was remitted for fresh consideration.

What did the court decide?

The impugned judgment and decree are set aside, the appeal is remitted to the lower appellate court for fresh consideration of both parties within six months.

Gopikrishnan Vs Rajamma — Partition | Kerala HC (2017)

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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 K.HARILAL

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WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 1938

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RSA.No. 637 of 2016 (A)

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AGAINST THE JUDGMENT AND DECREE DATED 14-12-2015 IN AS 417/2014 of YHR III ADDITIONAL DISTRICT COURT, TRIVANDRUM.

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AGAINST THE JUDGMENT AND DECREE DATED 19/2/2014 IN OS 370/2007 of PRINCIPAL SUB COURT, TRIVANDRUM.

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APPELLANT/PLAINTIFF:

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GOPIKRISHNAN, AGED 51 YEARS, S/O.PURUSHOTHAMAN, TC 25/3026, KRISHNAMANDIRAM, PARAKKAL JUNCTION, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM.

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BY ADV. SRI.M.R.SARIN

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RESPONDENTS/DEFENDANTS:

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1. RAJAMMA, AGED 84 YEARS, D/O.NAUGU, KRISHNA MANDIRAM, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM-695 001.

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*** [DIED - LRS.ARE RECORDED]**

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2. OMANA, AGED 58 YEARS, D/O.RAJAMMA, KRISHNA THIRUNALLIYOOR RESIDENTS ASSOCIATION F-329, PALLIMUKKU, PEYAD THIRUVANANTHAPURAM-695 001.

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3. INDIRA, AGED 59 YEARS, D/O.RAJAMMA, SAHADEVA VILASOM, MADATHARA ROAD, PARIPALLY, KOLLAM-695 231.

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......2

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-2-

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4. RADHA, AGED 69 YEARS, D/O.RAJAMMA, KRISHNA MANDIRAM, VANCHIYOOR VILLAGE,THIRUVANANTHAPURAM-695 001.

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5. NIRMALA, AGED 67 YEARS, D/O.RAJAMMA, ALUVILA VEEDU, TC 2/2418, PATTOM, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM-695 001.

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6. USHA GOPAKUMAR, D/O.RAJAMMA, SREERANGAM, TC 1/1305, POONTHI ROAD, KUMARAPURAM, MEDICAL COLLEGE, THIRUVANANTHAPURAM-695 001.

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7. V.RADHAKRISHNAN, AGED 63 YEARS,

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S/O.PURUSHOTHAMAN, SUMI NIVAS KALLATTUMUKKU, KAMALESWARAM, MANACAUDU VILLAGE, THIRUVANANTHAPURAM-695 001.

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8. LEENA, AGED 57 YEARS, D/O.RAJAMMA, KRISHNA MANDIRAM, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM-695001.

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R2 BY ADVS. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR R3 BY ADVS. SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA)

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*** AS PER THE ORDER DATED 30/09/2016 ON MEMO VIDE CF 5543/2016 DTD. 30/09/2016 THE SOLE APPELLANT AND RESPONDENTS 2 TO 8 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED 1ST RESPONDENT.**

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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R.S.A. No.637 of 2016-A

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Dated this the 11^th day of January, 2017

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JUDGMENT

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The appellant is the plaintiff in O.S.No.370/2007 on the files of the Principal Sub Court, Thiruvananthapuram, and the appellant in A.S. No.417/2014 on the files of the Additional District Court-III, Thiruvananthapuram. The aforesaid Original Suit was one for partition and separate possession of the plaintiff's 1/9^th share and to get a permanent prohibitory injunction restraining the defendants 2 and 3 from inter-meddling with his possession over his share in the plaint schedule property.

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The defendants filed a written statement resisting the claim of the plaintiff over the property, along with a counter claim. The trial court, after

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R.S.A. No.637 of 2016 -: 2 :-

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considering the evidence, on record, dismissed the suit and decreed the counter claim filed by the 2^nd defendant. Challenging the impugned judgment and decree, the plaintiff filed A.S. No. 417/2014 before the Additional District Court-III, Thiruvananthapuram. In appeal, the learned District Judge found that, by the impugned judgment and decree, the trial court dismissed the suit and allowed the counter claim of the 2^nd defendant. But, the appellant has filed only one appeal challenging the judgment and decree passed in O.S. No.370/2007 only and the judgment and decree passed in the counter claim will operate as res judicata to the appeal filed before the court.

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In support of the above view, the lower appellate court placed reliance on the decision reported in Girija v. Rajan [2015 (1) KLT 695]. In the above analysis, the lower appellate court dismissed the appeal. The impugned judgment and decree dismissing the appeal, on the basis of the above decision, is challenged in this Regular Second Appeal.

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The learned counsel for the appellant cited

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R.S.A. No.637 of 2016

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-: 3 :-

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the decision reported in Cholapllakkal Abdul Nazer v. Kuttanparambath K. Lakshmana Das and Another [2016 (4) KHC 140] and submits that the decision, on which the lower appellate court placed reliance, has been overruled by this Court in the above decision. The learned counsel for the respondents also fairly agreed with the said submission.

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Going by the decision laid down by this Court in Cholapllakkal Abdul Nazer v. Kuttanparambath K. Lakshmana Das and Another [2016 (4) KHC 140], it could be seen that, as rightly submitted by the learned counsel for the appellant, this Court held that there can be no impediment in entertaining a single Memorandum of Appeal against composite decree, in view of the homogeneity of the suit claim and the counter claim as a single proceeding. Further, it is held that there is no prohibition in the Code of Civil Procedure as regards entertainment of a single Memorandum of Appeal against a composite decree passed in an unified proceeding of the suit and counter claim. Only separate court fee will have to be

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R.S.A. No.637 of 2016

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-: 4 :-

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paid for respective claims. Thus, this Court finds that the findings of the lower appellate court, whereby the appeal stands dismissed, have been overruled by this Court.

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Consequently, the impugned judgment and decree are set aside and the appeal is remitted back to the lower appellate court for fresh consideration, after on merits affording an opportunity of being heard to both parties. The lower appellate court shall pass judgment afresh, within a period of six months from today. The parties shall appear before the lower appellate court on 27/01/2017. All further execution proceedings shall be deferred till 27/01/2017.

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This Regular Second Appeal is disposed of accordingly. All pending interlocutory applications will stand closed.

Sd/-

(K. HARILAL, JUDGE)

Nan/

//true copy//

P.S. to Judge

Gopikrishnan v. Rajamma

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Gopikrishnan v. Rajamma

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