Partly allowed

B.P.Sherfudheen v. Venugopalan and Others

Kerala HC10 Sept 2021RFA/360/2009

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, setting aside the trial court's dismissal of a suit for declaration of title and recovery. The matter was remanded for fresh disposal, with parties permitted to amend pleadings to seek lesser relief reflecting fractional interests, within a four-month timeline.

What did the court decide?

Impugned decree set aside; matter remanded to trial court for fresh disposal after permitting amendment of pleadings to incorporate sufficient prayers.

B.P.Sherfudheen Vs Venugopalan and Others — Partition | Kerala HC (2021)

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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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FRIDAY, THE 10^th DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943

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RFA NO. 360 OF 2009 (F)

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AGAINST THE JUDGMENT AND DECREE IN OS 340/2003 OF PRINCIPAL SUB

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COURT, PALAKKAD

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APPELLANT/PLAINTIFF:

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B.P.SHERFUDHEEN, S/o USMAN, RESIDING AT SUNMALLA MANZILL, PALLIPPURAM, YAKKARA AMSOM, PALAKKAD BY POWER OF ATTORNEY HOLDER P.ASHARAF, S/o UMMER, WEST FORT MAIDAN, PALAKKAD.

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BY ADV SRI.P.R.VENKATESH

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RESPONDENTS/DEFENDANTS:

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1 VENUGOPALAN, S/o KANNAN, MANDENKATTIL, KINAVALLUR AMSOM, PALAKKAD TALUK.

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2 SARADHA, D/o KANNAN, RESIDING AT DO. DO.

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3 PARVATHY, D/o KANNAN, RESIDING AT DO. DO.

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4 PRIYA, D/o KANNAN, RESIDING AT DO. DO.

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5 KRISHNANKUTTY, S/o KANNAN, RESIDING AT VILLUMKADU, PADMASREE, KINAVALLUR AMSOM, PALAKKAD TALUK.

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6 THANKAM, W/o LATE SUKUMARAN, RESIDING AT MANKARAPPURA VEETTIL, KOTTEKKAD AMSOM, PALAKKAD TALUK. (DIED)

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7 KAMALAM, W/o PAZHANIMALA, RESIDING AT ANJUMOORTHY MANGALAM, KAVASSERY AMSOM, ALATHUR TALUK.

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8 VASUDEVAN, S/o KANNAN, RESIDING AT MANDENKATTIL, KINAVALLUR AMSOM, PALAKKAD TALUK.

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9 MURALEEDHARAN, S/o KANNAN, RESIDING AT VILLUMKATTIL, KINAVALLUR AMSOM, PALAKKAD.

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10 PADMANABHAN, S/o KANNAN, RESIDING AT DO. DO.

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RFA No.360 of 2009

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11 RAJESH, S/o KRISHNANKUTTY, RESIDING AT DO.DO.

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ADDL.R12 AND R13 IMPLEADED

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ADDL.R12 THULASIDAS M.S., No.40/AM LAYOUT, DHAMU NAGAR, PULIYAKULAM, COIMBATORE – 641 045.

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ADDL.R13 SUJA, D/o THANKAM, NO 40/AM LAYOUT, DHAMU NAGAR, PULIYAKULAM, COIMBATORE – 641 045.

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(THE LEGAL HEIRS OF DECEASED R6 ARE IMPLEADED AS ADDL.R12 AND R13 VIDE ORDER DATED 10.09.2021 IN I.A. 3924/2010).

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R1 TO R5 & R7 TO R11 BY ADV. SRI.M.V.BOSE

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R2,3,4,7,10 BY ADVS. VINOD KUMAR C.

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SMT. SHEELA M.K.

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THIS REGULAR FIRST APPEAL HAVING COME UP ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA No.360 of 2009

JUDGMENT

Aggrieved by the decree of dismissal of the suit for

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declaration of title of 'A' schedule property, recovery of a portion of the 'A' schedule, scheduled in the plaint as 'B' schedule, and injunction pertaining to the remaining extent which is scheduled as 'C' schedule, the plaintiff came up.

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According to the plaintiff, the property was

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originally belonged to Kannan by virtue of two purchase certificates, A1 and A2, dated 17.05.1977. Later on, he

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had executed an assignment deed in favour of his two sons, Vasudevan and Muraleedharan, on 15.04.1992 and they, in

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turn, executed A4 assignment deed dated 31.12.1997 in favour of one Parasu and he, in turn, executed A7 in favour

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of the plaintiff on 03.06.2000, based on which the

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plaintiff claims title over the entire extent of 'A' Schedule. 'B' schedule is the portion of property wherein

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RFA No.360 of 2009

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the building is situated occupied by the earlier owners, Vasudevan and Muraleedharan, and in order to evict them, a demand notice was issued by Parasu on 28.04.1998 (A5). The suit was contested by the defendants stating that Exts.A1 and A2 purchase certificates obtained by Kannan would enure

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to the benefit of all co-owners of the property and the property was in the possession and enjoyment of their grandmother Kunji Amma and she was holding, possessing and enjoying the property for the benefit of herself and all the family members. In support of their argument, Ext.B1 document dated 09.01.1959 was produced. It is a tax receipt issued by the concerned Village Officer pertaining to the

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property in favour of the grandmother Kunji Amma and it would clearly show the possession and enjoyment held by Kunji Amma as on 09.01.1959. Admittedly, Kannan, who had obtained Exts.A1 and A2 purchase certificates, is one of

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the legal heirs of Kunji Amma. As such, the purchase certificate obtained would enure to the benefit of all the

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legal heirs of Kunji Amma and the document, if any,

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RFA No.360 of 2009 5

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executed by Kannan should be and must be understood in relation to the fractional interest held by him over the property and the assignment deed, Exts.A4 and A7, would stand valid with respect to the fractional interest held by Kannan over the property. As such, the trial court ought

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to have granted the lesser relief declaring his fractional interest over the property instead of dismissing the suit in toto. It is true that there is no prayer for partition in the suit. As such, the relief of declaration cannot be granted in view of the hurdle incorporated under Section 34 of the Specific Relief Act.

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3. Inter alia it was contended by the learned counsel

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for the appellant/plaintiff that a collusive decree was obtained in O.S.No.6/1998 in respect of the very same

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property between the same parties and a decree was passed on 31.08.1999. The suit was instituted on 09.01.1998, after

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the alleged transfer under Exts.A3 and A4. They were not made as parties to the suit. The defendants therein remained ex parte, based on which it was argued that it is

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RFA No.360 of 2009

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a collusive decree obtained by the other legal heirs of the deceased Kannan. Since the beneficiaries under Exts.A3 and A4 were not made as parties to the said suit, though it is one for partition, the decree would not bind upon the rights, if any, obtained by the beneficiaries under Exts.A3 and A4 assignment deed and as such there will be an order of stay against the execution of decree in O.S.No.6/1998 of the Additional Sub Court, Palakkad, till the disposal of the present suit.

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Since it is a matter commenced in the year 2003, I am of the view that it is fit and proper to direct the parties to incorporate sufficient prayers instead of referring them to go for a fresh one. For that purpose, the decree and judgment of the trial court are set aside and the matter is remanded back to the trial court for

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fresh disposal after permitting both the parties to amend their pleadings and to incorporate sufficient prayers so as to grant a lesser relief, for which the parties shall appear before the trial court on 28.09.2021. The trial

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RFA No.360 of 2009 7

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court shall dispose of the matter within a time schedule of four months from the date of appearance of the parties. There cannot be any refund of the court fee, since there is consideration on merits with respect to the right and title under Exts.A1,A2, A4 and A7 documents.

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Appeal is allowed in part accordingly. No costs.

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Sd/-

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P.SOMARAJAN JUDGE

DMR/-

RFA No.360 of 2009

APPENDIX

APPELLANT'S ANNEXURE:

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ANNEXURE	1 : CERTIFIED	COPY OF THE PRELIMINARY DECREE PASSED IN
	O.S.No.6/	1998 BY THE SUB COURT, PALAKKAD.
ANNEXURE	2 : CERTIFIED	COPY OF THE JUDGMENT IN OS No.6/1998 BY THE
	SUB COURT	, PALAKKAD.
ANNEXURE	3 : CERTIFIED	COPY OF FINAL DECREE IN I.A.No.2550/2010 IN
	O.S.No.6/	1998 OF THE SUB COURT, PALAKKAD.
ANNEXURE	4 : CERTIFIED	COPY OF E.P. No.102/2021 IN OS No.6/1998 ON
	THE FILES	OF THE SUB COURT, PALAKKAD.
ANNEXURE	5 : BUILDING T	AX RECEIPT DATED 14.10.2020 ISSUED BY THE
	PARALI GR	AMA PANCHAYAT IN FAVOUR OF THE APPELLANT.

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RESPONDENTS' ANNEXURE: NIL

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// TRUE COPY // P.A. TO JUDGE

B.P.Sherfudheen v. Venugopalan and Others

Case brief

What is this about?

What did the court decide?

B.P.Sherfudheen v. Venugopalan and Others

Case brief

What is this about?

What did the court decide?

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