Suseelamma Santhamma vs * Bhargavi Amma Lekshmi Amma
2021 Latest Caselaw 3073 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

          THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                  FAO (RO).No.20 OF 2020

 AGAINST THE JUDGMENT IN AS 53/1992 DATED 30-11-2019 OF
                  SUB COURT, ATTINGAL

    OS 126/1987 DATED 22-06-1991 OF ADDITIONAL MUNSIFF
                    COURT, NEDUMANGAD


APPELLANTS/APPELLANTS/PLAINTIFFS:

     1     SUSEELAMMA SANTHAMMA,
           CHARUVILA PUTHEN VEEDU, VENNIYODE,
           CHERUNNIYOOR VILLAGE, FROM PERUMANKARA VEEDU,
           ANACHAL, VAMANAPURAM VILLAGE,

     2     SANTHAMMA REENA KUMARI,
           CHARUVILA PUTHEN VEEDU, VENNIYODE,
           CHERUNNIYOOR VILLAGE, FROM PERUMANKARA VEEDU,
           ANACHAL, VAMANAPURAM VILLAGE,

     3     SANTHAMMA BEENA,
           CHARUVILA PUTHEN VEEDU, VENNIYODE,
           CHERUNNIYOOR VILLAGE, FROM PERUMANKARA VEEDU,
           ANACHAL, VAMANAPURAM VILLAGE,

     4     JALAJA,
           W/O.JUGUNNU, DLH COLONY, PARAMESWARAM,
           MUDAKKAL POST, NEDUMANGAD TALUK,

     5     VAISAKH.J.,
           S/O.JALAJA,
           DLH COLONY, PARAMESWARAM, MUDAKKAL POST,
           NEDUMANGAD TALUK.

           BY ADV. SRI.J.JAYAKUMAR
 FAO.(RO)No.20 of 2020


                             ..2..


RESPONDENTS/RESPONDENTS/DEFENDANTS:

      1 *     BHARGAVI AMMA LEKSHMI AMMA,
              PERUMANKARA VEEDU,
              ANACHAL, KEEZHCHERI MURI, VAMANAPURAM VILLAGE,
              THIRUVANANTHAPURAM DISTRICT-695606.

              * DECEASED
              (RESPONDENTS 2 TO 8 ARE RECORDED AS THE LEGAL
              HEIRS OF DECEASED R1 AS PER ORDER DTD.21.12.20
              IN I.A.No.2/20.)


      2       V.BABU,
              PERUMANKARA VEEDU, ANACHAL, KEEZHCHERI MURI,
              VAMANAPURAM VILLAGE,
              THIRUVANANTHAPURAM DISTRICT-695606.

      3       V.RAVEENDRAN,
              PERUMANKARA VEEDU, ANACHAL, KEEZHCHERI MURI,
              VAMANAPURAM VILLAGE,
              THIRUVANANTHAPURAM DISTRICT-695606.

      4       L.SYAMALA,
              PERUMANKARA VEEDU,
              ANACHAL, KEEZHCHERI MURI, VAMANAPURAM VILLAGE,
              THIRUVANANTHAPURAM DISTRICT-695606.

      5       L.RADHAMANI,
              PERUMANKARA VEEDU, ANACHAL, KEEZHCHERI MURI,
              VAMANAPURAM VILLAGE,
              THIRUVANANTHAPURAM DISTRICT-695606.

      6       L.SARALA,
              PERUMANKARA VEEDU, ANACHAL, KEEZHCHERI MURI,
              VAMANAPURAM VILLAGE,
              THIRUVANANTHAPURAM DISTRICT-695606.

      7       L.REMANI,
              PERUMANKARA VEEDU, ANACHAL, KEEZHCHERI MURI,
              VAMANAPURAM VILLAGE,
              THIRUVANANTHAPURAM DISTRICT-695606.
 FAO.(RO)No.20 of 2020


                             ..3..


      8       D.S.PUSHKALA,
              PERUMANKARA VEEDU, ANACHAL, KEEZHCHERI MURI,
              VAMANAPURAM VILLAGE,
              THIRUVANANTHAPURAM DISTRICT-695606.

      9       N.P.NITHIN,
              PERUMANKARA VEEDU, ANACHAL, KEEZHCHERI MURI,
              VAMANAPURAM VILLAGE,
              THIRUVANANTHAPURAM DISTRICT-695606.

      10      N.P.NITHU,
              PERUMANKARA VEEDU, ANACHAL, KEEZHCHERI MURI,
              VAMANAPURAM VILLAGE,
              THIRUVANANTHAPURAM DISTRICT-695606.

              R2, R8 BY ADV. SRI.B.RAGHUNATHAN
              R2, R8 BY ADV. SRI.M.SALIM
              R2, R8 BY ADV. SRI.R.SRINATH
              R2, R8 BY ADV. SRI.V.M.JACOB
              R3-6 BY ADV. SRI.P.R.VENKATESH
              R3-6 BY ADV. SRI.G.KEERTHIVAS

     THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
COME UP FOR ADMISSION ON 22.01.2021, THE COURT ON
28.01.2021 DELIVERED THE FOLLOWING:
 FAO.(RO)No.20 of 2020


                              ..4..


                          JUDGMENT

The appellants are the plaintiffs in O.S.No.126 of

1987 on the file of the Additional Munsiff's Court,

Nedumangad and the respondents are the defendants

therein. The above appeal is filed against the judgment

dated 30.11.2019 in A.S.No.53/1992 of the Sub Court,

Attingal and the judgment dated 22.6.1991 in

O.S.No.126/1987 on the file of the Additional Munsiff's

Court, Nedumangad (hereinafter referred to as 'the trial

court').

2. The trial court dismissed the suit. Challenging

the judgment and decree, the appellants earlier filed

A.S.No.53/1992 which was allowed by the sub court,

Attingal (hereinafter referred to as 'the first appellate

court') as per the judgment and decree dated 30.5.2000.

Against the said judgment and decree, the respondents

filed S.A.No.53/2001 before this Court and by the FAO.(RO)No.20 of 2020

..5..

judgment dated 27.2.2019, this Court allowed the same

and remitted to the first appellate court.

3. Heard the learned counsel for the appellants.

4. The learned counsel for the appellants

contended that by the judgment dated 27.2.2019, this

Court allowed the appeal and remitted to the first

appellate court for the limited purpose of affording the

plaintiffs in the suit an opportunity to implead the legal

representatives of the deceased 4th defendant. It is further

contended that now the first appellate court remitted the

case to the trial court for fresh disposal as per its

judgment dated 30.11.2019 against the terms of the

remand order passed by this Court.

5. Suit was filed by the plaintiffs 1 to 4 seeking a

relief of declaration and consequential injunction. The 1st

plaintiff is the mother of the plaintiffs 2 to 4. Since the

plaintiffs 2 to 4 are minors, they are represented by their FAO.(RO)No.20 of 2020

..6..

next friend and natural guardian who is none other than

the 1st plaintiff. The mother of the 1st plaintiff, Suseelamma

Janaki Amma, has a brother, namely, Gopala Pillai Soman

Nair. Suseelamma and Soman Nair were born to their

mother Janaki Amma. Lakshmi Amma Bhagavathy Amma

is the grandmother of Suseelamma. Apart from the 1 st

plaintiff's grandmother, Bhagavathy Amma has four more

children, namely, Raghavan Pillai, Velayudhan Pillai,

Devaki Amma and Saraswathy Amma, respectively. The 1st

defendant is the wife of Velayudhan Pillai. The defendants

2 to 8 are the children of Velayudhan Pillai and the 1 st

defendant. The plaint schedule item Nos.1 to 4 properties

were under the absolute title and possession of minor

Suseelamma by virtue of those descriptions contained in

the 6th schedule of partition deed No.241/1121 ME of SRO,

Vamanapuram. Since Suseelamma was a minor, she was

represented by her guardian, Smt.Bhagavathy Amma. FAO.(RO)No.20 of 2020

..7..

Thus, Bhagavathy Amma continued as the guardian of

Suseelamma and Manager of the plaint schedule property

till Suseelamma had attained majority. Velayudhan Pillai,

being the son of Bhagavathy Amma helped his mother in

managing the affairs of the plaint schedule properties.

Since the death of Bhagavathy Amma, the 1 st plaintiff and

Suseelamma continued their residence with Velayudhan

Pillai. While so, both Suseelamma and Velayudhan Pillai

passed away. Thus, the plaint schedule property belonging

to Suseelamma devolved upon the 1st plaintiff by virtue of

intestate succession applicable to Hindus. Thus, the plaint

schedule properties are under the absolute title and

possession of the plaintiffs. On the death of Velayudhan

Pillai, it is alleged that the defendants caused several

kinds of obstructions and hindrances to plaintiffs from

taking usufructs and income from plaint schedule item

Nos.1 to 4 properties. Hence, the suit. FAO.(RO)No.20 of 2020

..8..

6. The 4th defendant remained exparte. The

defendants 1, 2, 3 and 5 to 7 filed a written statement

contending that the plaintiffs are having no title upon the

plaint schedule property. According to them, the 1 st

plaintiff is not the daughter of Suseelamma and therefore

the plaintiffs are not entitled to derive title upon the plaint

schedule property. It is further contended that

Suseelamma was unmarried and issueless. Although,

plaint schedule properties were allotted to the share of

Suseelamma by virtue of partition deed of the year 1121

ME, she never got possession upon the plaint schedule

property during her lifetime. Even as per the contents in

the partition deed, Suseelamma was a minor as on the

date of partition deed. According to the defendants, the 1 st

plaintiff never exercised possession upon the plaint

schedule property and the defendants' predecessor

Velayudhan Pillai enjoyed absolute possession upon the FAO.(RO)No.20 of 2020

..9..

plaint schedule property from the date of partition deed.

Thus, it is contended that even if the 1st plaintiff is having

any right and title upon the plaint schedule property, the

same has been lost by adverse possession and limitation.

Thus, the defendants have denied the title of the 1st

plaintiff upon the plaint schedule property.

7. During the trial, PWs.1 to 3 were examined and

marked Exts.A1 to A5 on the side of the plaintiffs. DWs.1

and 2 were examined and marked Exts.B1 to B4 series on

the side of the defendants. Exts.C1(a) to (e) were marked

as court exhibits.

8. Going by the judgment dated 27.2.2019 in

S.A.No.53/2001, it is clear that the defendants 1, 3, 5, 6

and 7 filed an earlier second appeal before this Court. The

suit was initially dismissed by the trial court. However, the

decision of the trial court was reversed in appeal preferred

by the plaintiffs and the suit was decreed permitting the FAO.(RO)No.20 of 2020

..10..

1st plaintiff to recover plaint schedule item Nos.2 and 3

from the defendants. The defendants being aggrieved by

the said decision of the first appellate court filed the

second appeal before this Court.

9. When the second appeal came up for hearing, it

was pointed out that the 4th defendant in the suit died

pending appeal and his legal representatives were not

brought on record by the appellants/plaintiffs. It was

without taking note of the death of the 4th defendant, the

first appellate court reversed the decision of the trial

court. Thus, insofar as the legal representatives of the

deceased 4th defendant were not brought on record in the

appeal, the decree of the trial court insofar as it related to

the deceased 4th defendant had become final. Since the

cause of action pleaded by the plaintiffs in the plaint as

against all the defendants is one and the same, this Court

entered a finding that the appellate court could not have FAO.(RO)No.20 of 2020

..11..

allowed the appeal preferred by the plaintiffs for the

decree in the suit in favour of the 4th defendant which

would operate as res judicata against the plaintiffs. In the

above circumstances, this Court was of the view that the

case of the plaintiffs should not be defeated technically on

that ground for the non-impleadment of the legal

representatives of the deceased 4th defendant. Hence, by

virtue of the judgment dated 27.2.2019, the case was

remitted to the appellate court to afford an opportunity to

the plaintiffs to implead the legal representatives of the

deceased 4th defendant. The operative portion of the

judgment reads as follows:-

"In the result, the second appeal is allowed, the impugned appellate judgment is set aside and A.S No.53 of 1992 is remitted to the Sub Court, Attingal for fresh disposal after affording the plaintiffs in the suit an opportunity to implead the legal representatives of the deceased fourth defendant. The parties are directed to appear FAO.(RO)No.20 of 2020

..12..

before the lower appellate court for further proceedings on 01.04.2019."

10. It is evident from the judgment dated 27.2.2019

that the impugned judgment dated 30.5.2000 in

A.S.No.53/1992 was set aside and accordingly the case

was remitted to the first appellate court for fresh disposal

after affording the plaintiffs in the suit an opportunity to

implead the legal representatives of the deceased 4 th

defendant.

11. After having heard both sides, the first appellate

court, remanded the case to the trial court for fresh

disposal after affording an opportunity to the plaintiffs to

adduce some additional evidence to prove Ext.A4 in

accordance with Sections 35, 90 and 114 of the Indian

Evidence Act. The trial court dismissed the suit on the

ground that the plaintiffs did not prove the relationship

between the 1st plaintiff and Suseelamma. On a detailed FAO.(RO)No.20 of 2020

..13..

consideration of the entire evidence on record, Ext.A4

admission register having requisite entries is a necessary

item of evidence to prove the relationship. The first

appellate court is of the view that the date of birth in

Ext.A4 requires cogent and credible evidence and that is

not available on record. Hence, the appeal was allowed

and remanded to the trial court for adducing fresh

evidence to prove that Ext.A4 is produced from the proper

custody of a public servant in accordance with law.

12. It is evident from the judgment in

S.A.No.53/2001 dated 27.2.2019 that the first appellate

court judgment in A.S.No.53/1992 was set aside and

remitted to the first appellate court for fresh disposal.

Hence the contention that the first appellate court

remitted the case to the trial court for a limited purpose of

affording the plaintiffs in the suit an opportunity to

implead the legal representatives of the deceased 4 th FAO.(RO)No.20 of 2020

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defendant is clearly unsustainable. Hence, this First

Appeal against the order of remand passed by the first

appellate court is clearly unsustainable. The 1st appellate

court remanded the case to the trial court in accordance

with the terms of the judgment of this Court in

S.A.No.53/2001. Contra is not correct.

In the result, this F.A.O.(RO) is dismissed. The trial

court is directed to dispose of the suit within six months

from the date of receipt of a copy of this judgment

uninfluenced by the observations and findings contained in

the judgment dated 30.11.2019 of the first appellate

court. There will be no order as to costs. Pending

applications, if any, stand disposed of.

Sd/-

N.ANIL KUMAR, JUDGE skj