Dismissed

Rajeevan@ Rajeevanandan v. Subrahmanian

Kerala HC26 May 2022RFA/784/2013

Case brief

AI extract

What is this about?

The High Court dismissed the appeal holding that a preliminary decree for partition cannot be declared null and void as against a non-party. The court held the trial court's discussion on the appellant's title was unnecessary and deleted it.

What did the court decide?

The appeal is dismissed. The discussion regarding the plaintiff's right, title and interest in the trial court judgment is deleted.

Rajeevan@ Rajeevanandan Vs Subrahmanian — Partition | Kerala HC (2022)

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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 26^TH DAY OF MAY 2022 / 5TH JYAISHTA, 1944

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RFA NO. 784 OF 2013 (I)

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AGAINST THE JUDGMENT & DECREE DATED 05.03.2013 IN OS 119/2010 OF II

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ADDITIONAL SUB COURT, THRISSUR

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APPELLANT/PLAINTIFF:

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RAJEEVAN @ RAJEEVANANDAN, S/o ANDEZHATH VIJAYAN, MUTTICHUR DESOM, PADIYAM VILLAGE, THRISSUR TALUK.

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BY ADV T.A.RAJAGOPALAN

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RESPONDENTS/DEFENDANT:

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1 SUBRAHMANIAN, AGED 70 YEARS, S/o LATE ANDEZHATH PRABHAKARAN, PADIYUR VILLAGE, MUTTICHUR DESOM, THRISSUR TALUK, PIN- 680695

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2 VIJAYAN, AGED 70 YEARS, (DIED) S/o LATE ANDEZHATH KONNAN, PADIYUR VILLAGE, MUTTICHUR DESOM, THRISSUR TALUK, PIN- 680695

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3 PREMAN, AGED 67 YEARS, S/o LATE ANDEZHATH MADHAVAN, PADIYUR VILLAGE, MUTTICHUR DESOM, THRISSUR TALUK, PIN- 680695

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4 SIDHARTHAN, AGED 69 YEARS, S/o LATE ANDEZHATH MADHAVAN, PADIYUR VILLAGE, MUTTICHUR DESOM, THRISSUR TALUK, PIN- 680695

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5 SULOCHANA, AGED 63 YEARS, D/o LATE ANDEZHATH MADHAVAN, PADIYUR VILLAGE, MUTTICHUR DESOM, THRISSUR TALUK, PIN- 680695, AND W/o CHAKKITHARA VIJAYAN, VADAKKUMMIRI VILLAGE.

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6 SUKUNDAVENI, AGED 61 YEARS, D/o LATE ANDEZHATH MADHAVAN, PADIYUR VILLAGE, MUTTICHUR DESOM, THRISSUR TALUK, PIN- 680695, AND W/o CHAKAMADATHIL RAMESH, MANALUR PALAZHI DESOM

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RFA No.784 of 2013

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7 LEYANABAI, AGED 63 YEARS, D/o LATE ANDEZHATH MADHAVAN, PADIYUR VILLAGE, MUTTICHUR DESOM, THRISSUR TALUK, PIN- 680695, AND W/o KULLTH RAJAN, VADANPPILLY DESOM

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8 PANKAJAVALLY, AGED 64 YEARS, D/o LATE ANDEZHATH MADHAVAN, PADIYUR VILLAGE, MUTTICHUR DESOM, THRISSUR TALUK, PIN- 680695, AND W/o CHECHIPPARAMBIL SUKUMARAN, THALIKULAM DESOM.

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ADDL.R9 JALAJAMANI, AGED 62 YEARS, D/o ANDEZHATH VIJAYAN AND WIFE OF POTTEKKAT SANKARANARAYANAN, PERINGHOTTUKARA DESOM, THANNYAM VILLAGE, THRISSUR TALUK.

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(ADDL. RESPONDENT 9 IS IMPLEADED AS THE L.R. OF DECEASED 2ND RESPONDENT VIDE ORDER DATED 25.05.2022 IN IA 2/2015)

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R1 TO R8 BY ADVS. R.RAJITHA

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SANTHOSH P.PODUVAL

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VINAYA V.NAIR

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ADDL.R9 BY ADV. D. SREEKUMAR

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA No.784 of 2013

JUDGMENT

A suit for declaration that the preliminary decree for

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partition in an earlier suit is null and void was dismissed by the trial court after having a detailed discussion regarding the right, title and interest of the plaintiff over the property. In the earlier suit, the plaintiff is not a party. Necessarily, the decree would not bind on him, unless he is a person claiming under any of the party to the said suit. It is submitted by the appellant that the plaintiff is not claiming under any of the party to the suit, but raised an independent right over the property, for which, admittedly, no suit was filed for the grant of any relief based on the alleged right, title and interest

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claimed over the property, but the trial court had unnecessarily gone into the said question without seeking a relief based on such right. The present suit is one for declaring the earlier decree for partition as null and void, in which the plaintiff is not a party. No relief of declaration of title or interest held by the plaintiff was included in the present suit. But the present suit is one

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for declaring the earlier preliminary decree as null and

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RFA No.784 of 2013 4

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void. I am at a loss to understand how the preliminary decree will stand null and void as against a person who is

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not a party to the decree. At the most, he can avoid the decree as it is not binding on him since he is not a party to the suit or litigating under any of the party to the suit. That does not mean that the decree will stand null and void as against the party to the suit/decree. Hence, no such relief can be granted. The various discussions and observations made by the trial court regarding the alleged

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right, title and interest of the plaintiff is highly unwarranted and unnecessary, hence will stand deleted from the impugned judgment. The right, title and interest of the plaintiff can be raised by instituting a suit in that behalf or he can object delivery of the property under Order XXI Rule 97 C.P.C. at the appropriate stage. Without

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prejudice to the said right, the present appeal is hereby dismissed.

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The appeal is dismissed. No costs.

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P.SOMARAJAN

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JUDGE

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DMR/-

Rajeevan@ Rajeevanandan v. Subrahmanian

Case brief

What is this about?

What did the court decide?

Rajeevan@ Rajeevanandan v. Subrahmanian

Case brief

What is this about?

What did the court decide?

What the court decided

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