Dismissed

Radha v. Balan

Kerala HC18 Jul 2019RSA/939/2004

Case brief

AI extract

What is this about?

In this second appeal regarding a partition suit over ancestral leasehold property, the Single Judge dismissed the challenge to concurrent findings on paternity and legal marriage. The court held that a purchase certificate benefits all co-owners and that res judicata does not apply where the appellant was not a formal party to the prior proceedings.

What did the court decide?

The Second Appeal is dismissed; the appealed order is upheld.

Radha Vs Balan — Partition | Kerala HC (2019)

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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 P.SOMARAJAN

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THURSDAY, THE 18TH DAY OF JULY 2019 / 27TH ASHADHA, 1941

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RSA.No.939 of 2004

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AGAINST THE JUDGMENT AND DECREE DATED 15-03-2004 IN AS 398/2000 of I ADDITIONAL DISTRICT COURT, THRISSUR

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AGAINST THE JUDGMENT AND DECREE DATED 30-06-2000 IN OS 1570/1997 of I ADDITIONAL MUNSIFF COURT ,THRISSUR

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APPELLANTS/APPELLANTS/DEFENDANTS 3 & 5:

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1 RADHA, D/O THIRUVAMBADI KARUVAN KRISHNAN, CHEMBUKKAVU VILLAGE, DESOM, THRISSUR TALUK.

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2 SIVADAS

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S/O. THIRUVAMBADI KARUVAN KRISHNAN, CHEMBUKKAVU VILLAGE, DESOM, THRISSUR TALUK.

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BY ADV. SRI.N.P.SAMUEL

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RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 1,2,4,6 TO 9:

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1 BALAN

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S/O. THIRUVAMBADI KARUVAN SANKARAN, MYLIPADAM DESOM, CHEMBUKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.

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2 SANTHOSH

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S/O. THIRUVAMBADI KARUVAN SANKARAN, MYLIPADAM DESOM, CHEMBUKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.

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*3 DASAN

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S/O. THIRUVAMBADI KARUVAN SANKARAN, MYLIPADAM DESOM, CHEMBUKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.

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(DIED, LEGAL HEIRS IMPLEADED)

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4 SANTHA

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D/O. THIRUVAMBADI KARUVAN SANKARAN, MYLIPADAM DESOM CHEMBUKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.

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RSA.No.939 of 2004 2

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5 VIMALA

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D/O. THIRUVAMBADI KARUVAN SANKARAN,, MYLIPADAM DESOM, CHEMBUKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.

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6 PREMA

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D/O. THIRUVAMBADI KARUVAN SANKARAN,, MYLIPADAM DESOM, CHEMBUKAVU VILLAGE,, THRISSUR TALUK, THRISSUR DISTRICT.

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7 RADHAKRISHNAN S/O.THIRUVAMBADI KARUVAN SANKARAN, MYLIPADAM DESOM, CHEMBUKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.

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8 VENU, S/O. THIRUVAMBADY KARUVAN KRISHNAN CO-OPERATIVE ROAD, MYLIPADAM, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT.

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9 NANDANAN,

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S/O. THIRUVAMBADI KARUVAN KRISHNAN, CO-OPERATIVE ROAD, MYLIPADAM, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT.

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10 KRISHNANKUTTY,

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S/O. THIRUVAMBADI KARUVAN KRISHNAN, CO-OPERATIVE ROAD, MYLIPADAM, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT.

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11 BALAN

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S/O. THIRUVAMBADI KARUVAN KRISHNAN, CO-OPERATIVE ROAD, MYLIPADAM, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT.

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12 SARADA

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D/O. THIRUVAMBADI KARUVAN KRISHNAN, CO-OPERATIVE ROAD, MYLIPADAM, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT.

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13 AMBUJAKSHY

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D/O. THIRUVAMBADI KARUVAN KRISHNAN, CO-OPERATIVE ROAD, MYLIPADAM, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT.

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14 KUMARI

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D/O. THIRUVAMBADI KARUVAN KRISHNAN, CO-OPERATIVE ROAD, MYLIPADAM, CHEMBUKAVU VILLAGE, THRISSUR DISTRICT.

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RSA.No.939 of 2004 3

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ADDL.RESPONDENTS 15 TO 17:

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15 AMBIKA, AGED 60 YEARS, W/O.DASAN, THIRUVAMBADI HOUSE, MYLIPADAM DESOM, CHEMBUKAVU, THRISSUR.

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16 JAYESH, AGED 32 YEARS, S/O.DASAN, THIRUVAMBADI HOUSE, MYLIPADAM DESOM, CHEMBUKAVU, THRISSUR.

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17 JAYASREE, AGED 35 YEARS, D/O.DASAN, THIRUVAMBADI HOUSE, MYLIPADAM DESOM, CHEMBUKAVU, THRISSUR.

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R1,R2,R4 TO R7, R15 TO R17 BY ADV.SRI.M.C.GOPI

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No.939 of 2004 4

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JUDGMENT

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A suit for partition pertaining to the plaint

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schedule property having an extent of 5¹ /2 cents

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ended in a preliminary decree in both the Trial

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Court (Munsiff's Court, Thrissur) in

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O.S.No.1570/1997 and the First Appellate Court (I Addl.District Court, Thrissur) in A.S.No.398/2000. The defendants 3 and 5 came up

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with this appeal against the concurrent findings.

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The subject matter of the suit comes to 5¹ /2

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cents originally obtained based on an oral lease by the grandfather of both the plaintiffs and defendants one Kunhikrishnan from its Janmi

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Krishnankutty Thampuran. He had constructed a building therein and was residing therein. He was

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having two children Sankaran and Krishnan. The plaintiffs are the children of Sankaran born in two wedlock with two wives. The defendants are the

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legal heirs of Krishnan the other son. Sankaran died on 24/07/1966. After the death of first wife

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RSA.No.939 of 2004 5

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he entered into a second marriage. There are two

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issues in the first wedlock and 5 issues in the second wedlock. The plaintiff issued a demand notice on 05/01/1995 claiming partition over the property, refusal thereof resulted in the present suit, which was ended in preliminary decree in both the court below.

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3. The main contentions raised by the

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appellants are three folded. One is that there is no sufficient evidence to show any legal marriage of Sankaran with his two wives and the paternity of

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the children/the plaintiffs. It was contended that there is no solemnization of marriage either with the first wife or with the second wife. The second contention raised is that they have obtained Ext.B2 purchase certificate on 10/01/1979 and it would be conclusive evidence of title and possession and the plaintiffs cannot claim any right,title or interest either as co-owner or otherwise over the property in view of the grant of Ext.B2 purchase certificate and relied on the decision rendered by a Division

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Bench of this Court in Ahmmed Kutty v. Mariakutty

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RSA.No.939 of 2004 6

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Umma (2000 KHC 160) . Thirdly, on the ground that

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the plaintiff had on an earlier occasion opted to file an appeal against the purchase certificate Ext.B2, but that appeal happened to be dismissed. So, the adjudication rendered by the Land Tribunal would operate as res-judicata in agitating the very same issue by way of a suit for partition.

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consideration:

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Whether the concurrent finding rendered by both the courts below regarding the paternity of

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children born to Kunhikrishnan in his first wedlock and second wedlock and existence of legal marriage is amenable for interference by this court unless

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there is warranting reason and whether there is any such warranting reason involved in the appeal ?

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Whether the purchase certificate granted would be the conclusive evidence of title and

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possession as against intermediaries and co-owners

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if they were not made as parties to the proceedings?

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Whether an appeal preferred as an aggrieved

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RSA.No.939 of 2004 7

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person when resulted in dismissal on account of delay caused, the finding rendered by the Trial Court/the Tribunal would operate as res judicata against the appellant, the aggrieved person, who is not a party to the proceedings ?

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Regarding the paternity of the plaintiffs

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and the marriage solemnized with his respective wives there is concurrent finding by both the court below that there was a legal marriage and that the elder two are the two issues born in the wedlock with the first wife and he had entered into a second marriage and the younger 5 are five issues born in the second wedlock. There is a concurrent finding by both the Court below regarding that aspect. Being a finding on the fact unless there is perversity or patent illegality there cannot be any interference to the finding of fact by this Court by way of second appeal. Nothing was brought to the notice of this Court to show any illegality or perversity. Admittedly, Sankaran passed away on 24-07-1966 at the age of in and around 56. This

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would prima facie show the date on which he had

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RSA.No.939 of 2004 8

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entered into a marriage earlier on two occasions. It might be prior to 20 or 25 years back as there

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are 7 issues in the two marriages. PW5 was examined who was aged more than 76, who deposed in tune with the claim of plaintiffs regarding the two marriage alleged to have been entered into by Sankaran and the birth of 2+5 children in two

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wedlock. They have also produced voters list and admission register showing the paternity of the children. The oral evidence tendered by PW5 would show that Sankaran was residing with his respective wives as husband and wife for a very long period which would prima facie satisfy that the marriage was consummated. The concurrent finding rendered by

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both the court below on facts hence deserves no interference.

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On coming into the second contention that the Ext.B2 purchase certificate would stand as conclusive proof of title and possession. There cannot be any quarrel on the legal position already settled. But, that proposition cannot be extended to any person having interest over the property or

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RSA.No.939 of 2004 9

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any intermediary if they were not made as party to

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the proceedings. Admittedly, purchase certificate

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Ext.B2 was issued without the juncture of

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plaintiffs who are claiming under one of the son of Kunhikrishnan who claimed a leasehold right over the property. The defendants, who are the children of another son Krishnan also claims and litigating

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under the very same Kunhikrishnan and they are

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claiming a leasehold right and possession thereof

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over the property under the above said Kunhikrishnan. They don't have any case that they

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had obtained possession of the property or

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leasehold right over the property in their individual capacity apart from the possession held

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by Kunhikrishnan, their grandfather. So the

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purchase certificate if any granted would enure to the benefit of all co-owners who are entitled to

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right devolution by the death of the original

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holder of the property Kunhikrishnan. So the

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purchase certificate obtained would enure to the

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benefit of other co-owners, the plaintiffs. As

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such, it need not be set aside though they have

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RSA.No.939 of 2004 10

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opted for filing an appeal.

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On coming into the question of res-judicata

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the order of Tribunal passed in the appeal is not produced or let in evidence either in the Trial Court or in the First Appellate Court and it is not clear on what reasoning the appeal was dismissed so as to satisfy the ingredient which constitute res judicata as incorporated under Section 11 C.P.C.. Yet another issue also issued as to the question of application of res judicata. It is settled that res judicata would operate only to the parties to the litigation or person litigating thereunder. A filing of an appeal as an aggrieved person when resulted in dismissal on account of delay or

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non-grant of leave to institute an appeal, will not make the appellant as a party to the suit or the proceedings and res judicata will not come into play. Yet another reason is also available that

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when a right has been obtained under statutory provision by the intervention of Land Tribunal by the issuance of purchase certificate, it would

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enure to all co-owners over the property and the

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RSA.No.939 of 2004 11

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said right cannot be taken away by the mere fact that the other co-owners who were not party to the proceedings opted to prefer an appeal challenging the issuance.

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No other ground was raised by the learned counsel for the appellants in support of their appeal. None of the question raised in the appeal will come into play.

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Hence appeal fails, deserves only a dismissal. I do so, but without costs.

Sd/-

P.SOMARAJAN

JUDGE

//TRUE COPY//

P.A. TO JUDGE

msp

Radha v. Balan

Case brief

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What did the court decide?

Radha v. Balan

Case brief

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