Second appeal by a plaintiff claiming share in ancestral property and seeking cancellation of a sale deed executed by other family members. The court found that the plaintiff failed to prove the identity of the suit property and the allegation of fraud regarding the sale deed. Holding that no substantial question of law was involved, the appeal was dismissed in limine.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
RSA NO. 910 OF 2015
AGAINST THE JUDGMENT AND DECREE DATED 7.3.2015 IN AS NO.122 OF 2009 OF ADDITIONAL DISTRICT JUDGE'S COURT III, PALAKKAD ARISING OUT OF THE JUDGMENT AND DECREE DATED 26.11.2008 IN OS NO.390 OF 2007 OF MUNSIFF (ADDITIONAL) COURT, PALAKKAD
APPELLANT/APPELLANT/PLAINTIFF:
MUTHU K, AGED 63 YEARS, S/O. LATE KOYAN, PADALIKKAD, KANNADIPOTTA, KOTTEKKAD P.O., MALAMPUZHA II VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT.
BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P
RESPONDENTS/RESPONDENTS/DEFENDANTS:
**1 THATHA, AGED 83 YEARS, W/O. LATE KOYAN, ATTILAMPARA, THENARI AMSOM, THENARI P.O., ELAPPULLY VILLAGE, PALAKKAD TALUK, PALAKAD DISTRICT. 2 PONNU (DIED), AGED 65, LRS RECORDED, S/O. LATE KOYAN, ATTILAMPARA,
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THENARI AMSOM, THENARI P.O., ELAPPULLY VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT.
****(RESPONDENTS 11 TO 15 IN THE APPEAL ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT AS PER THE ORDER DATED 08.10.2018 IN IA.5/2018)**
3 KUTTAN, AGED 56 YEARS, S/O. LATE KOYAN, ATTILAMPARA, THENARI AMSOM, THENARI P.O., ELAPPULLY VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT.
***** 4 VELLA (DIED), LRS RECORDED, AGED 68 YEARS, D/O. LATE KOYAN, ATTILAMPARA, THENARI AMSOM, THENARI P.O., ELAPPULLY VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT.**
***** 5 KALAVATHY, (DIED) LRS IMPLEADED, AGED 58 YEARS, W/O. SANKUNNI, ATTILAMPARA, THENARI AMSOM, THENARI P.O., ELAPPULLY VILLAGE, PALAKKAD TALUK, PALAKAD DISTRICT. 6 MANOHARAN, AGED 52 YEARS, S/O.P.V. MANI, MUTHALIYARTHARA,**
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THENARI P.O., ELAPPULLY VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT.
*** 8 JALAJA,(DIED) LRS IMPLEADED, D/O. P.V. MANI, MUTHALIYARTHARA, THENARI P.O., ELAPPULLY VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT. * 9 VELAYUDHAN,(DIED)LRS RECORDED, S/O. KUPPA, AGED 70, EMPLOYEE IN TODDY SHOP, MEENAKSHIPURAM P.O., CHITTUR TALUK, PALAKKAD DISTRICT. (ALL THE PARTIES IN THE APPEAL ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 9TH RESPONDENT AS PER THE ORDER DATED 08.10.2018 IN IA.4/2018) 10 JAITHRI, AGED 48, W/O. BHASKARAN, ATTILAMPARA, THENARI AMSOM, THENARI P.O., ELAPPULLY VILLAGE, PALAKKAD TALUK, PALAKAD DISTRICT.*
11 PARVATHI, AGED 56, W/O. LATE PONNU ALIAS PONNAN, DOBBY, MADHUKKARA MILITARY CAMP,
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MAILAKKAL, MADHUKKARA P.O., COIMBATORE DISTRICT, TAMILNADU STATE.
12 RAJAN, AGED 36, S/O. LATE PONNU ALIAS PONNAN, MADHUKKARA MILITARY CAMP, MAILAKKAL, MADHUKKARA P.O., COIMBATORE DISTRICT, TAMILNADU STATE. 13 SELVAN, AGED 44, S/O. LATE PONNU ALIAS PONNAN, MADHUKKARA MILITARY CAMP, MAILAKKAL, MADHUKKARA P.O., COIMBATORE DISTRICT, TAMILNADU STATE. 14 NAGARAJAN, AGED 31, S/O. LATE PONNU ALIAS PONNAN, MADHUKKARA MILITARY CAMP, MAILAKKAL, MADHUKKARA P.O., COIMBATORE DISTRICT, TAMILNADU STATE.
15 DEVARAJAN, AGED 29, S/O. LATE PONNU ALIAS PONNAN, MADHUKKARA MILITARY CAMP, MAILAKKAL, MADHUKKARA P.O., COIMBATORE DISTRICT, TAMILNADU STATE.
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*ADDL.16 MOHANAN, THAKARAKKAD, ETHANNOOR P.O., PALAKKAD.
*ADDL.17 ANU, S/O.MOHANAN, THAKARAKKAD, ETHANNOOR P.O.,PALAKKAD.
(LEGAL HEIRS OF THE DECEASED RESPONDENT NO.8 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 16 AND 17 AS PER ORDER DATED 30.09.2023 IN IA.1/2018)
****ADDL.18 PUSHPA, W/O.LATE JAYAN, MUTHALIYARTHARA, THENARI P.O., ELAPPULLY VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT. ADDL.19 PREEJA, D/O.LATE JAYAN, MUTHALIYARTHARA, THENARI P.O., ELAPPULLY VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT. (THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT 7 ARE IMPLEADED AS ADDL R18 AND R19 AS PER ORDER DATED 03.06.2024 IN IA 2/2020)
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ADDL.20 SANKUNNI, MEPPADAM, MANKURISSI P.O., PALAKKAD-678 613.
ADDL.21 SUNIL DAS, S/O.SANKUNNI, MEPPADAM, MANKURISSI P.O., PALAKKAD-678 613.
ADDL.22 SHEEBA, D/O.SANKUNNI, MEPPADAM, MANKURISSI P.O., PALAKKAD-678 613.
ADDL.23 SUKUMARI, D/O.SANKUNNI, MEPPADAM, MANKURISSI P.O., PALAKKAD-678 613.
(THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT 5 ARE IMPLEADED AS ADDL R20 TO R23 AND APPELLANT AND ALL RESPONDENTS EXCEPT R10 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED R4 AS PER ORDER DATED 03.06.2024 IN IA 1/2023)
BY ADV RAJESH SIVARAMANKUTTY, R6
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
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ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
R.S.A.No.910 of 2015
Dated this the 4 th June 2024
J U D G M E N T
This second appeal under Section 100 read with Order XLII Rule 1 CPC filed by the plaintiff/appellant is against the judgment and decree dated 07/03/2015 in A.S.No.122/2009 on the file of the Additional District Judge's Court, Palakkad, which appeal in turn is against the judgment and decree dated 26/11/2008 in O.S.No.390/2007 on the file of the Munsiff (Additional), Palakkad.
The parties and the documents will be referred to as described in O.S.No.390/2007.
2 . According to the plaintiff, the plaint schedule property along with certain other properties originally belonged to Vadassery Mana, from whom Theyyankandi, the grandfather of plaintiff purchased it as per assignment deed no.312/1919. As per
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assignment deed no.3943/1943, the property was purchased by Koyan, the plaintiffs father, from Theyyankandi. Koyan's sister Kuppa was dependent on Koyan and was therefore residing in the tharavadu house. Koyan's sister Kasumani had been married off and was staying in her marital home. Koyan; his sister Kuppa; the plaintiff and defendants 1 to 5 were residing in the tharavadu house. Koyan passed away on 15/12/1992 and Kuppa two years' thereafter. Defendants 1 to 5 shifted their residence from the tharavadu house to a new house constructed by them. Thereafter the plaintiff and her children were residing in the tharavadu house. The plaintiff also shifted his residence from the tharavadu house as it collapsed. Defendants 6 to 9 with the intention to usurp the plaint schedule property has created certain documents in favour of the tenth defendant, who in turn is attempting to trespass into the property. Hence a lawyer notice was caused to be issued by the plaintiff to the defendants. On receipt of the same, the tenth defendant sent a reply contending that he had purchased the property for consideration
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from defendants 6 to 9 vide Ext.A1 registered sale deed no.949/2007. Ext.A1 is a fraudulent document created by defendants 6 to 9 in favour of the tenth defendant. Neither defendants 6 to 9 nor their predecessors-in-interest, namely Kuppa or Kasumani had any right over the property. Therefore, Ext.A1 is an invalid and sham document, liable to be cancelled. The tenth defendant on the strength of Ext.A1 trespassed into the property and has committed damages in the same and also made certain constructions in the property. Hence the suit for declaration that Ext.A1 is a void document; for partition and consequential injunction. The plaintiff claimed 1/6 share over the plaint schedule property.
3 . Defendants 6, 7 and 8 filed written statement denying the plaint allegations. Neither the plaintiff nor defendants 1 to 5 had any right, title or possession over the plaint schedule property, which is not available for partition. The entire property that was owned by Theyyankandi was subjected to partition in the year 1982
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as per partition deed no.2762/1982. The plaintiff's father Koyan, the
plaintiff, the second and third defendants were also parties to the said deeds. As per the said partition deed, A schedule was set apart to the plaintiff and defendants 2 and 3 jointly. B schedule was set apart to Theyyankandi's daughter, namely, Thanka, Kuppa, Rugmini and Kasumani jointly. B schedule of the partition deed comprising 9 cents was released in favour of Kasumani and on her death, the property devolved on her legal heirs, that is, defendants 6 to 8 who were in joint possession and enjoyment of the same. An extent of 12 cents of property shown in in the plaint schedule belonged to Kuppa which devolved on her sole legal heir, namely the ninth defendant. While so, defendants 6 to 9 sold their property to the tenth defendant as per registered sale deed no.949/2007. Eversince, the tenth defendant has been in possession and enjoyment of the said extent of 9 cents. Neither the plaintiff nor defendants 1 to 5 have any right in the plaint schedule property.
4 . The tenth defendant reiterated the contentions of the
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other defendants.
5 . Necessary issues were raised by the trial court. The
parties went to trial on the basis of the aforesaid pleadings. PW1
was examined and Exts.A1 to A8 were marked on the side of the plaintiff. DW1 was examined and Exts.B1 to B4 were marked on
the side of the defendants. The trial court on an appreciation of the oral and documentary evidence, found that the plaintiff had failed to establish the identity of the property or Ext.A1 document came to be executed under vitiating circumstances. The judgment and decree of the trial court has been confirmed by the first appellate court and hence the second appeal.
6 . Heard the learned counsel for the plaintiff/appellant. 7 . The plaintiff relies on Ext.A8 in support of his claim over
the plaint schedule property. The trial court found that the extent of the property in Ext.A1 is 5.5 cents whereas as per the schedule in the plaint, the extent given is 21 cents. The extent, description and boundaries of the plaint schedule was found not tallying with the
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details given in Ext.A8 deed. Though the defendants specifically contended that the plaint schedule property was not identifiable, for
reasons best known to the plaintiff, no steps were taken to get the property identified.
8 . Ext.A1 document relied on by the tenth defendant is
challenged by the plaintiff on the ground that the executants had no right or title to assign the property and therefore it was alleged that Ext.A1 document was an invalid and fraudulent document. According to the trial court, though the plaintiff putforward a case of fraud, there were no clear pleadings or evidence to substantiate the same. It was also found that the claim of the plaintiff that the executants did not have any right to execute Ext.A1, was also wrong. The contesting defendants relied on Ext.B4 partition deed dated 26/05/1982 to establish their case that the executants of Ext.A1 did have the necessary right to execute the same. In Ext.B4, the plaintiff, his father Koyan, defendants 2 and 3, Thanka, Kuppa, Rugmini and Kasumani were parties. Plaint A schedule in Ext.B4
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was set apart to the plaintiff, his father Koyan and defendants 2 and 3 jointly. B schedule in Ext.B4 partition deed was set apart to the daughters of Theyyankandi, namely, Thanka, Kuppa, Rugmini and Kasumani. Evidence also came on record to show that Thanka, Kuppa and Rugmini had released their right over the property in favour of Kasumani as per a release deed. Therefore, the allegation that executants of the deed did not have any right to assign the property, was found to be incorrect and false. It was also noticed that Ext.B4 partition deed was never denied by the plaintiff. No evidence came on record to prove that Ext.A1 sale deed relied on by the tenth defendant came to be executed under vitiating circumstances. As the plaintiff failed to establish his claim over the plaint schedule property, the trial court and the first appellate court on a correct appreciation of the oral and documentary evidence, concluded that the plaintiff was not entitled to the relief prayed for. I do not find any infirmity or perversity in the findings of the trial court or the first appellate court calling for an interference by this
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Court. As no substantial questions of law arise, the appeal is liable
to be dismissed in limine and hence I do so.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA JUDGE
ami/
3 issues framed by the court
Whether the appellant established identity of the plaint schedule property with clarity?
Whether the sale deed in favour of the tenth defendant was invalid, void and fraudulent?
Whether substantial questions of law arise warranting interference in a second appeal?
1 provisions across 1 enactments
Muthu K
Thattha
Ponnu
Kuttan
Vella
Kalavathy
C.S. Sudha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
