Kerala High Court
Pushpam vs Vilasini on 4 March, 2021
RSA 251/2021 1/4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
Thursday,the 4th day of March 2021/13th Phalguna, 1942
IA.NO.2/2021 IN RSA No.251/2021 (E)
For information purpose only
A.S No.36/2004 of the SUB COURT,NEYYATTINKARA
O.S No.94/2002 of the PRINCIPAL MUNSIFF COURT ,NEYYATTINKARA
PETITIONERS/APPELLANTS:
1. PUSHPAM,
D/O. MARIYA, ALUNINNAVILA VEEDU, MANALOOR DESOM,
NEYYATTINKARA PAKUTHY.
2. RETNAMMA
D/O.PUSHPAM, ALUNINNAVILA VEEDU, MANALOOR DESOM,
NEYYATTINKARA PAKUTHY
RESPONDENTS/RESPONDENTS:
1. VILASINI,AGED 70 YEARS,
D/O. REGINAL,CHUNDAVILA, ALUNNINNAILA PUTHEN VEEDU,
MANALUR DESOM, NEYYATTINKARA PAKUTHY,
THIRUVANANTHAPURAM-695 121
2. PREETHA,AGED 45 YEARS
D/O. VILASINI, ,CHUNDAVILA, ALUNINNAILA PUTHEN VEEDU,
MANALUR DESOM, NEYYATTINKARA PAKUTHY,
THIRUVANANTHAPURAM-695 121
3. BINDU,
D/O.RETNAMMA, ALUNINNAVILA VEEDU, MANALOOR DESOM,
NEYYATTINKARA PAKUTHY, THIRUVANANTHAPURAM-695 121
4. VICTOR
ALUNINNAVILA VEEDU, MANALOOR DESOM, NEYYATTINKARA
PAKUTHY, THIRUVANANTHAPURAM-695 121
Application praying that in the circumstances stated in the affidavit
filed therewith the High Court be pleased to stay all the entire
RSA 251/2021 2/4
proceedings including execution of decree pursuant to the judgment
dated 13.10.2020 in AS.No.36/2004 on the file of Court of Sub Judge,
Neyyattinkara and judgment dated 20.11.2003 in OS.No.94/2002 on the
file of Court of Principal Munsiff, Neyyattinkara, pending the disposal of
RSA.
This application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI.S.MOHAMMED AL RAFI, Advocate for the petitioners, the court
For information purpose only
passed the following:
RSA 251/2021 3/4
N.ANIL KUMAR, J.
----------------
RSA No.251 of 2021
----------------
Dated this the 4th day of March 2021
For information purpose
ORDE R only
Heard the learned counsel for the appellants.
2. The RSA is admitted on the following substantial questions of law;
1. Whether the first appellate court committed grave illegality by
allowing the application preferred by respondents 1 and 2 for changing
the description of plaint B schedule property by adding 4 cents of
property and building therein as per the order in IA No. 1 of 2020
dated 06.10.2020, which altered the nature of the case and introduced
a totally different and new cause of action?
2. Whether the first appellate court went wrong in dismissing the appeal
without giving an opportunity to the appellants to lead evidence
consequent to the order dated 06.10.2020 in IA No. 1 of 2020, causing
serious prejudice to the appellants in violation of the directions and
stipulations contained in the judgment in RSA No. 346 of 2008?
3. Is it permissible on the part of the respondents 1 and 2 to file the
present suit after having suffered a decree in a counter claim without
reserving any liberty to them to file a fresh suit?
4. Is not the present suit filed by respondents 1 and 2 barred under the
principles of res judicata in view of the judgment in OS No. 859 of
1983 and AS No. 368 of 1994 between the same parties in respect of
the schedule property?
RSA 251/2021 4/4
5. Have not the two courts below committed grave illegality in rejecting
the claim of the appellants on the plea of adverse possession and
limitation by excluding the period, during which the earlier suit was
pending?
3. Issue notice.
Post after summer vacation.
For information purpose only
IA No. 2 of 2021
Heard the learned counsel for the petitioners/appellants.
2. Execution of the decree pursuant to the judgment dated 13.10.2020 in AS
No. 36 of 2004 of Sub Court, Neyyattinkara, which arose from the judgment
dated 20.11.2003 in OS No. 94 of 2002 of the Principal Munsiff's Court,
Neyyattinkara, stands stayed for a period of four months.
N. ANIL KUMAR, JUDGE
bka/-
/true copy/
Sd/-
ASSISTANT REGISTRAR
