Kerala High Court
Safeera Beevi vs Leelamma Thankachan on 1 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 1ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943
FAO (RO) NO. 12 OF 2020
AGAINST THE JUDGMENT& DECREE DATED 08.11.2019 IN AS 34/2018 OF SUB
COURT AT PUNALUR, KOLLAM.
AGAINST THE JUDGMENT & DECREE DATED 28.03.2018 IN OS 216/2011 OF
MUNSIFF COURT, PUNALUR, KOLLAM
APPELLANTS/RESPONDENTS 2,3,4,5,6,8 & 9/DEFENDANTS,2,3,4,5,6,8 & 9:
1 ELIYAMMA BABU,
AGED 52 YEARS
W/O. BABUKUTTY, PALAKUZHY VEEDU,
AVANEESWARAM (R.S.P.O)
NEDUVANNOOR MURI, PIDAVOOR VILLAGE,
PATHANAPURAM TALUK, KOLLAM 689 695
2 SAFEERA BEEVI,
AGED 40 YEARS
W/O. NIZAMUDEEN, CHARUVILA PUTHEN VEEDU,
KULAPPURAM THAZHEBHAGAM, AVANEESWARAM, VILAKKUDY
VILLAGE, PATHANAPURAM TALUK, KOLLAM 691 508
3 M. NIZARUDHEEN,
AGED 48 YEARS
S/O. MYTHEEN KUNJU, PEEDIKAYIL VEEDU,
VILAKKUDY (PO), VILAKKUDY MURI,
VILAKKUDY VILLAGE, PATHANAPURAM TALUK,
KOLLAM 691 508
4 VALSAMMA NINAN,
AGED 57 YEARS
W/O. NINAN, KALLARA NILKUNNATHIL VEEDU,
PUNNALA (PO), CHACHIPUNNA, PUNNALA VILLAGE,
PATHANAPURAM TALUK, KOLLAM 689 695
5 O.BABY KUTTY,
AGED 66 YEARS
S/O. USMAN, PALAKUZHY VEEDU,
AVANEESWARAM RSPO, NEDUVANNOOR MURI,
PIDAVOOR VILLAGE, PATHANAPURAM TALUK,
KOLLAM 689 695
6 NAZARUDEEN,
AGED 46 YEARS
FAO(RO) Nos.12/2020&13/2020
2
S/O. ALIYARU KUNJU,
SAJEER MANZIL, AVANEESWARAM (RSPO),
VILAKKUDY VILLAGE,
PATHANAPURAM TALUK, KOLLAM 691 508
7 JAMALUDEEN KUNJU,
AGED 43 YEARS
S/O. MYTHEEN KUNJU, PEEDIKAYIL VEEDU,
VILAKKUDY (PO), VILAKKUDY VILLAGE,
PATHANAPURAM TALUK, KOLLAM 691 508
BY ADVS.
G.P.SHINOD
SRI.RAM MOHAN.G.
SRI.GOVIND PADMANAABHAN
SHRI.AJIT G ANJARLEKAR
ATUL MATHEWS
RESPONDENTS/APPELLANTS & RESPONDENTS 1 & 7/PLAINTIFFS &
DEFENDANTS 1 AND 7:
1 V.P.THANKACHAN,
AGED 68 YEARS
S/O. PAPACHAN, L.T BHAVAN,
EARATHU KULAKKADA, KALAYAPURAM VILLAGE,
KOTTARAKKARA TALUK, KOLLAM 691 560.
FROM VELLAYAMPARAMBIL VEEDU, ENATHU MURI,
EZHAMKULAM VILLAGE, ADOOR TALUK, PATHANAPURAM
691 554
2 LEELAMMA,
AGED 60 YEARS
W/O. V.P THANKACHAN, L.T BHAVAN,
EARATHU KULAKKADA, KALAYAPURAM VILLAGE,
KOTTARAKKARA TALUK, KOLLAM 691 560.
FROM VELLAYAMPARAMBIL VEEDU, ENATHU MURI,
EZHAMKULAM VILLAGE, ADOOR TALUK, PATHANAMTHITTA
691 554
3 O. BABUKUTTY,
AGED 60 YEARS
S/O.USMAN, PALAKUZHY VEEDU,
AVANEESWARAM (R.SP.O)
NEDUVANNOOR MURI, PIDAVOOR VILALGE,
FAO(RO) Nos.12/2020&13/2020
3
PATHANAPURAM TALUK, KOLLAM 689 695
4 O. JOHN KUTTY,
AGED 49 YEARS
S/O. USMAN, PALAKUZHY VEEDU,
AVANEESWARAM (R.SP.O)
NEDUVANNOOR MURI, PIDAVOOR VILLAGE,
PATHANAPURAM TALUK, KOLLAM 689 695
R1 & R2 BY ADV SRI.MILLU DANDAPANI
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
COME UP FOR HEARING ON 01.11.2021, ALONG WITH FAO
(RO).13/2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
FAO(RO) Nos.12/2020&13/2020
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 1ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943
FAO (RO) NO. 13 OF 2020
AGAINST THE JUDGMENT & DECREE DATED 08.11.2019 IN AS
35/2018 OF SUB COURT AT PUNALUR, KOLLAM
AGAINST THE JUDGMENT & DECREE DATED 28.03.2018 IN OS
149/2008 OF MUNSIFF COURT, PUNALUR, KOLLAM
APPELLANTS/RESPONDENTS/PLAINTIFFS 1& 2:
1 SAFEERA BEEVI,
AGED 40 YEARS,
W/O.NIZAMUDEEN, CHARUVILA PUTHEN VEEDU,
KULAPPURAM THAZHEBHAGAM, AVANEESWARAM, VILAKKUDY
VILLAGE, PATHANAPURAM TALUK, KOLLAM-691 508.
2 JAMALUDEEN,
AGED 43 YEARS,
S/O.MYTHEEN KUNJU, PEEDIKAYIL VEEDU, VILAKKUDY
(PO), VILAKKUDY VILLAGE, PATHANAPURAM TALUK,
KOLLAM-691 508.
BY ADVS.
G.P.SHINOD
SRI.RAM MOHAN.G.
SRI.GOVIND PADMANAABHAN
SHRI.AJIT G ANJARLEKAR
RESPONDENTS/APPELLANTS/DEFENDANTS 3&4:
1 LEELAMMA THANKACHAN,
AGED 60 YEARS,
W/O.V.P.THANKACHAN, L.T.BHAVAN, EARATHU
KULAKKADA, KALAYAPURAM VILLAGE, KOTTARAKKARA
TALUK, KOLLAM-691 560, FROM VELLAYAMPARAMBIL
VEEDU, ENATHU MURI, EZHAMKULAM VILALGE, ADOOR
TALUK, PATHANAMTHITTA-691 554.
FAO(RO) Nos.12/2020&13/2020
5
2 V.P.THANKACHAN,
AGED 68 YEARS,
S/O.PAPACHAN, L.T.BHAVAN, EARATHU KULAKKADA,
KALAYAPURAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM-
691 560, FROM VELLAYAMPARAMBIL VEEDU, ENATHU
MURI, EZHAMKULAM VILALGE, ADOOR TALUK,
PATHANAMTHITTA-691 554.
BY ADV SRI.MILLU DANDAPANI
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
COME UP FOR HEARING ON 01.11.2021, ALONG WITH FAO
(RO).12/2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
FAO(RO) Nos.12/2020&13/2020
6
JUDGMENT
This appeal is by defendant No.2 to 6 and
of remand by the first appellate court
challenging mainly the finding rendered by the
first appellate court regarding the period of
limitation to the effect that the parties are
governed by Article 58 of the Limitation Act.
The dispute is with respect to the validity of
Ext.A2 gift deed of the year 1978 and a
settlement deed - Ext.A3 of the year 2001
executed by the very same person with respect
to the same property. The leading suit -
O.S.No.216/2011 is for a declaration that
Ext.A2 gift deed of the year 1978 is valid and
that the plaintiffs are the owners of the
property (the parties herein below are
referred in their status in the leading case).
The very same owner, the executant of Ext.A2
FAO(RO) Nos.12/2020&13/2020
gift deed subsequently executed another
settlement deed in the year 2001 in respect of
40 cents of property in favour of his son
Babukutty and he in turn executed Exts.A4 and
A5 deeds of transfer on 20/11/2006 in favour
of the defendants. Another agreement for
sale-Ext.A6 was executed with respect to the
remaining extent of 60 cents by all the legal
heirs of the original owner of the property
excluding the plaintiffs. Hence the defendant
filed a suit O.S.No.149/2008 in respect of 40
cents of property for injunction against
trespass, wherein a counter claim was raised
by the plaintiffs.
The suit O.S.No.216/2011 is for a
declaration coupled with recovery of
possession based on the very same cause of
action originated from the execution of
settlement deed of the year 2001 and
subsequent sale deeds- Exts.A1 and A5 dated
FAO(RO) Nos.12/2020&13/2020
20/11/2006 for the purpose of declaring their
title over the property based on Ext.A2 gift
deed of the year 1978. The legal position is
very much settled by this Court in Gopakumar
and Others v. Kamalakshy Purushothaman and
Others [2019 (3) KHC 478 : 2019 (3) KLJ 269].
The very same legal position would come into
play with respect to the suit instituted by
the defendants based on the same subject
matter, wherein a counter claim was also
raised. Hence, the parties are governed by
Article 65 and not Article 58 of the
Limitation Act. There is no other reason for
interfering with the order of remand and
hence, the appeal will stand disposed of
accordingly. There will be an open remand of
the matter and the parties may be permitted to
adduce additional evidence. The trial court
shall dispose of the suit within nine months
from the date of appearance of parties. The
FAO(RO) Nos.12/2020&13/2020
parties shall appear before the trial court on
18/11/2021.
Sd/-
P.SOMARAJAN
JUDGE
SPV
