The High Court set aside a lower appellate order that unsuccessfully interfered with non-appealable lease renewal decisions, confirming that a co-owner cannot be compelled to consent against their will. Subordinate civil appeals were dismissed.
F.A.O.(RO)Nos. 14 & 18/2020 allowed, setting aside remand orders; O.P.(C)Nos. 1544 & 1547/2019 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 T.V.ANILKUMAR
WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942
OP(C).No.1544 OF 2019
AGAINST THE JUDGMENT AND DECREE DATED 13.11.2018 IN O.S.NO.139/2016 OF MUNSIFF COURT,MUVATTUPUZHA
PETITIONER:
1 ELDO.K.THOMAS, AGED 63 YEARS,S/O. THOMAS, KAVUNGUMPILLIL HOUSE,PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686692.
2 VARGHESE,
AGED 65 YEARS, S/O.JOSEPH, KUNNATH HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686692.
BY ADV. SRI.ALEXANDER JOSEPH
RESPONDENT:
NAVEEN.B.PARAPPATTU, S/O.LATE BINU, AGED 32, PARAPPATTU HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686692.
BY ADVS. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2020, ALONG WITH FAO (RO).14/2020, FAO (RO).18/2020, OP(C).1547/2019, THE COURT ON 18.11.2020 DELIVERED THE FOLLOWING:
O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942
FAO (RO).No.14 OF 2020
AGAINST THE JUDGMENT DATED 10-01-2020 IN A.S.NO.44/2019 OF SUB COURT, MUVATTUPUZHA
APPELLANTS/ RESPONDENTS/PETITIONERS/ PLAINTIFFS:
1 ELDHO.K.THOMAS, AGED 63 YEARS, S/O.THOMAS,KAVUNGUMPILLIL HOUSE, PINDIMANA KARA,PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686681.
2 VARGHESE, AGED 66 YEARS, S/O.JOSEPH,KUNNATHU HOUSE,PINDIMANA KARA,PINDIMANA VILLAGE,KOTHAMANGALAM TALUK686681.
BY ADVS.SRI.ALEXANDER JOSEPH SMT.TERESA C. JOSEPH
RESPONDENT/ APPELLANT/ RESPONDENT/ DEFENDANT:
SARAMMA, W/O LATE BINU,PARAPPATTU HOUSE, PINDIMANA KARA,PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686681.
BY ADV. SRI.A.BALAGOPALAN
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 16.11.2020, ALONG WITH FAO (RO).18/2020, OP(C).1544/2019, OP(C).1547/2019, THE COURT ON 18.11.2020 DELIVERED THE FOLLOWING:
O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942
FAO (RO).No.18 OF 2020
AGAINST THE JUDGMENT DATED 10-01-2020 IN A.S.NO.43/2019 OF SUB COURT, MUVATTUPUZHA
APPELLANTS/ RESPONDENTS/ PETITIONERS/ PLAINTIFFS:
1 ELDHO K. THOMAS, AGED 63 YEARS, S/O.THOMAS, KAVUNGUMPILLIL HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686681
2 VARGHESE, AGED 66 YEARS, S/O.JOSEPH, KUNNATHU HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686681
BY ADVS.SRI.ALEXANDER JOSEPH
SMT.TERESA C. JOSEPH SMT.AKHILASREE BHASKARAN SRI.M.V.SABU RESPONDENT/APPELLANT/ RESPONDENT/ DEFENDANT:
NAVEEN B. PARAPPATTU, AGED 33 YEARS, S/O.LATE BINU, PARAPPATTU HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686681
BY ADVS. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 16.11.2020, ALONG WITH FAO (RO).14/2020, OP(C).1544/2019, OP(C).1547/2019, THE COURT ON 18.11.2020 DELIVERED THE FOLLOWING:
O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020
-:4:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942
OP(C).No.1547 OF 2019
AGAINST THE JUDGMENT AND DECREE DATED 24.10.2018 IN O.S. NO.137/2016 OF MUNSIFF COURT,MUVATTUPUZHA
PETITIONER:
1 ELDHO.K.THOMAS, AGED 63 YEARS, S/O.THOMAS KAVUGUMPILLIL HOUE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK 686 692.
2 VARGHESE, AGED 65 YEARS, S/O. JOSEPH, KUNNATH HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE KOTHAMANGALAM TALUK 686 692.
3 GEORGE MATHEW, AGED 63 YEARS, S/O. MATHEW, PARAPPATTU HOUSE PINDIMANA KARA, PINDIMANA VILLAGE KOTHAMANGALAM TALUK 686 692.
BY ADVS.SRI.ALEXANDER JOSEPH SMT.TERESA C. JOSEPH SMT.AKHILASREE BHASKARAN
RESPONDENT:
SARAMMA,
AGED 55 YEARS, W/O. LATE BINU, PARAPPATTU HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM 686 692.
BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2020, ALONG WITH FAO (RO).14/2020, FAO (RO).18/2020, OP(C).1544/2019, THE COURT ON 18.11.2020 DELIVERED THE FOLLOWING:
O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020
-:5:-
Dated this the 18th day of November,2020
C O M M O N J U D G M E N T
F.A.O.(RO)No.14/2020 and O.P.(C)No.1547/2019 are filed by plaintiffs in O.S.No.137/2016 on the file of the Munsiff Court, Muvattupuzha. Plaintiffs in O.S.No.139/2016 before the same court are authors of F.A.O(RO) No.18/2020 and O.P. (C) No.1544/2019.
O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020
-:6:-
have become final and the plaintiffs in the suits filed final decree applications in their respective suits before the Munsiff court. During the pendency of the final decree application in O.S.No.137/2016, plaintiffs filed I.A.No.330/2019 seeking an order for sale of the decree schedule properties contending that 'A', 'B', 'C' schedule items were not capable of physical division, since the items were entirely covered by buildings therein. This was opposed by the defendant.
O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020
-:7:-
with the report of the Advocate Commissioner and the finding that in the report, the properties were incapable of physical division. It expressed its opinion that a clear picture about the possibility or otherwise of the physical division of the properties could be explored, only upon the items being surveyed with the aid of plan and parties heard thereafter. Both orders were set aside and matter was remitted back to the court below for fresh consideration of the issue.
O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020
-:8:-
permission of the court for conducting toddy shop business on a rent being fixed by the court. This application was heavily opposed by the defendant. Similar application as I.A.No.679/2019 was filed in O.S.No.139/2016 by the decree holders which also the defendant in that suit opposed. The court below accepted the argument of the defendant that a co-owner cannot be compelled to consent for renewing lease against his will. Both petitions were dismissed by separate orders in the respective suits on 04.04.2019. Challenging these orders, the plaintiffs in O.S.Nos.137 & 139/2016 filed O.P.(C)Nos.1547/2019 and 1544/2019 respectively.
O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020
-:9:-
appointed for the property to take care of the income and profits with liability to account for the same. That position does not arise in the present cases before me. Therefore, orders dated 04.04.2019 dismissing I.A.Nos.683 & 679/2019 are confirmed.
O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020
-:10:-
counsel for the respondents also did not dispute that the orders challenged before the first appellate court were non appealable. Since impugned orders were passed in appeals which were not maintainable under law, they are illegal and liable to be set aside. In other words, the first appellate court erred in interfering with the orders in I.A.No.1227/2019 in I.A.No.330/2019 in O.S.No.137/2016 and I.A.No.1228/2019 in I.A.No.329/2019 in O.S.No.139/2016 dated 17.07.2019.
In the result, F.A.O.(RO)Nos.14 & 18/2020 are allowed setting aside impugned orders in A.S.No.43 & 44/2019 dated 10.01.2020. O.P.(C)Nos.1544 & 1547/2019 are dismissed. Parties would suffer their respective costs.
All pending interlocutory applications will stand closed.
Sd/-
T.V.ANILKUMAR,JUDGE
DST
//True copy/
P.A.To Judge
O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020
-:11:-
APPENDIX OF OP(C) 1544/2019
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 13.11.2018 IN OS NO.139/2016 OF THE MUNSIFF'S COURT, MUVATTUPUZHA.
EXHIBIT P2 TRUE COPY OF THE PRELIMINARY DECREE DATED 13.11.2018 IN O.S. NO.139/2016 OF THE MUNSIFF'S COURT, MUVATTUPUZHA. EXHIBIT P3 TRUE COPY OF I.A. NO.329/2019 IN O.S.NO.139/2016 OF THE MUNSIFF'S COURT, MUVATTUPUZHA.
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 24.09.2018 IN WRIT APPEAL NO.1757/2018 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P5 TRUE COPY OF THE I.A. NO.679/2019 IN I.A. NO.329/2019 IN O.S. NO.139/2016 OF THE MUNSIFF'S COURT, MUVATTUPUZHA. EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANT. EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT OF THE TENANT OF THE BUILDING SRI GEORGE.
EXHIBIT P8 TRUE COPY OF I.A. NO.1228 OF 2019 IN I.A. NO.329 OF 2019 IN O.S. NO.139/2016 OF THE MUNSIFF'S COURT, MUVATTUPUZHA.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 04.04.2019 IN I.A. NO.679/2019 IN I.A. NO.329/2019 IN O.S. NO.139/2017.
RESPONDENTS' EXHIBITS: NIL
O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020
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APPENDIX OF OP(C) 1547/2019
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 24.10.2018 N O.S. NO. 137/2016 OF THE MUNSIFFS COURT MUVATTUPUZHA
EXHIBIT P2 TRUE COPY OF THE PRELIMINARY DECREE DATED 24.10.2018 IN O.S. NO. 137/2016 OF THE MUNSIFFS COURT MUVATTUPUZHA.
EXHIBIT P3 TRUE COPY OF I.A. NO. 330/2019 IN O.S. NO. 137/2016 OF THE MUNSIFFS COURT MUVATTUPUZHA. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 24.9.2018 IN WRIT APPEAL NO. 1758/2018 OF TE HON'BLE HIGH COURT OF KERALA. EXHIBIT P5 TRUE COPY OF THE I.A. NO. 683/2019 IN O.S. NO. 137/2016 OF THE MUNSIFFS COURT MUVATTUPUZHA. EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANT.
EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT OF THE TENANT OF THE BUILDING.
EXHIBIT P8 TRUE COPY OF IA NO. 1227 OF 2019 IN OS NO. 137/2016 OF THE MUNSIFFS COURT MUVATTUPUZHA.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 4/4/2019 IN I.A. NO. 683/2019 IN I.A. NO. 330/2019 IN O.S. NO. 137/2016
RESPONDENTS' EXHIBITS: NIL
2 issues framed by the court
Whether the first appellate court had jurisdiction to interfere with interlocutory orders regarding the non-affectability of lease renewal permissions under the Partition Act.
Whether orders granting permission for tenant renewal against a co-owner's will were illegal or maladministrative.
3 provisions across 2 enactments
Eldhok. Thomas
Varghese
George Mathew
Saramma
T.V. Anilkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
