Kerala High Court
P.Sreekumar vs Kamaludeen on 30 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
OP(C) NO. 1083 OF 2020
AGAINST THE ORDER/JUDGMENT IN AS 106/2015 OF DISTRICT COURT &
SESSIONS COURT,KOLLAM, KOLLAM
PETITIONER/4th RESPONDENT:
P.SREEKUMAR,
AGED 57 YEARS
S/O. RAGHUNATHA PILLAI, SAMOOHAM MADOM, 11/307-A,
FERRY ROAD, SOUTH CHITTOOR, KOCHI 682 027.
BY ADV S.SUDHISH KUMAR
RESPONDENTS/APPELLANTS/RESPONDENTS 1,2,3 AND 5 TO 10:
1 KAMALUDEEN
AGED 70 YEARS
S/O. VEERA SAHIB KALLUVILA PUTHEN VEETTIL,
PERAYAM CHERRY, THAZHUTHALA VILLAGE,
KOLLAM DISTRICT, 691 571.
2 RAMLA,
AGED 55 YEARS
D/O. ABDHUL KHADER, THATTARUVILA VEETTIL,
NADUVILAKKARA CHERRI, MAYYANAD VILLAGE,
KOLLAM DISTRICT 691 303.
3 HARIKUMAR,
AGED 61 YEARS
S/O. RAGHUNATHA PILLAI, KESAVA VILASAM,
GLASS FACTORY, ROAD, KALAMASSERY, ERNAKULAM 683 104.
M.R. ENTERPRISES, NEAR SUB REGISTRY OFFICE,
EDAPPALLY, KOCHI 682 026.
OP(C) NO. 1083 OF 2020
-2-
4 MAHESH,
AGED 50 YEARS
S/O. RAGHUNNATHA PILLAI, KESAVA VILASAM,
GLASS FACTORY, ROAD, KALAMASSERY,
ERNAKULAM 683 104.
WORKING AT FIRE AND RESCUE STATION, THRIKKAKARA,
KOCHI 682 021.
5 PADMAVATHY AMMA,
AGED 81 YEARS
W/O. RAGHUNNATHA PILLAI, KESAVA VILASAM,
GLASS FACTORY, ROAD, KALAMASSERY,
ERNAKULAM 683 104.
6 GANESHKUMAR.M.R.,
AGED 54 YEARS
S/O. RAGHUNNATHA PILLAI, JUNIOR ENGINEER, BCED,
CPED, CPWD KENDREEYA SADAN, KORAMANGALA,
BANGALORE 34.
NOW RESIDING AT KESAVA VILASAM, GLASS FACTORY
ROAD, RAJAGIRI POST, KALAMASSERY 683 104.
7 NAGESH .M.R.,
AGED 51 YEARS
S/O. RAGHUNNATHA PILLAI,
KESAVA VILASAM, GLASS FACTORY ROAD,
RAJAGIRI POST, KALAMASSERY 683 104.
8 ABDHUL RAHIM,
AGED 55 YEARS
S/O. SULAIMAN KUNJU, RAHIMA (RASI), MANZIL,
VADAKKUMKARA KIZHAKKE CHERIYIL, MUKHATHA VILLAGE,
KOLLAM (DISTRICT) 691 571.
9 LAILA BEEVI,
AGED 49 YEARS
D/O. SULAIMAN KUNJU, RASI MANZIL, VADAKKUMKARA
KIZHAKKE CHERIYIL, MUKHATHA VILLAGE,
KOLLAM DISTRICT 691 571.
OP(C) NO. 1083 OF 2020
-3-
10 SUNIL KUMAR,
AGED 42 YEARS
S/O. GOPALAN, GOPALA MANDIRAM PERAYAM CHERI,
THAZHUTHALA VILLAGE, KOLLAM 691 571.
11 JOHNSON VARGHESE,
AGED 59 YEARS
S/O. VARGHESE, PLAMOOTTIL, KIZHAKKATHIL,
PATTATHANAM P.O. PATTATHANAM CHERRY,
VADAKKEVILA VILLAGE, KOLLAM DISTRICT 691 021.
12 MOLLY ANTONY,
AGED 55 YEARS
W/O. JOHNSON VARGHESE, PLAMOOTTIL, KIZHAKKATHIL,
PATTATHANAM P.O. PATTATHANAM CHERRY,
VADAKKEVILA VILLAGE, KOLLAM DISTRICT 691 021.
BY ADVS.
R1, R2 SRI.A.JANI(KOLLAM)
SRI.K.C.CHARLES
SRI.M.POLY MATHAI
SRI.VIMAL K.CHARLES
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 1083 OF 2020
-4-
JUDGMENT
The petitioner is the second defendant in
O.S.No.80/2001 on the files of the Sub Court,
Kollam. The suit was filed for partition of the
ancestral property of the members of a Thavazhy. By
Ext.P3 preliminary decree, the plaint schedule
properties were partitioned into seven equal
shares, allotting 2/7 share to the plaintiff and
5/7 share to defendant Nos. 1 to 4. Thereafter,
Ext.P5 supplementary preliminary decree was also
passed. Aggrieved by the original preliminary
decree respondent Nos. 6 to 9 filed A.S.No.50/2010
and as against the supplementary decree, A.S.No.106
of 2015. The appeals were taken up together and
based on Ext.P5 compromise petition, the appellate
court rendered Ext.P6 judgment and Exts.P7 and P8
decrees.
2. This original petition is filed on the
OP(C) NO. 1083 OF 2020
ground that the compromise was entered into
fraudulently, without giving notice to the
petitioner, who was the second defendant in the
suit. Further, the petitioner is not a signatory to
the compromise petition. Hence, Ext.P6 judgment and
Exts. P7 and P8 decrees, are liable to be set
aside. Learned counsel for the petitioner contended
that the appeal will have to be decided afresh,
without reference to the compromise petition.
3. Learned counsel for the respondents do not
dispute the contention that the petitioner is not a
signatory to the compromise petition.
4. In such circumstances, I find substantive
force in the contention that Exts.P6 to P8 are
liable to be set aside.
In the result, the original petition is
allowed. Exts. P6 to P8 are set aside and the
appellate court is directed to pass orders on the
appeals afresh, after affording an opportunity of
hearing to all the parties and without reference to
OP(C) NO. 1083 OF 2020
Ext.P5 compromise petition. Being appeals of the
year 2010 and 2015, effort shall be taken by the
appellate court to dispose of the appeals at the
earliest, and if possible, within an outer limit of
three months from the date of receipt of a copy of
this judgment.
Sd/-
V.G.ARUN
JUDGE
hmh
OP(C) NO. 1083 OF 2020
APPENDIX OF OP(C) 1083/2020
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S. NO.
80/2001 ON THE FILES OF THE SUB COURT,
KOLLAM.
EXHIBIT P2 A TRUE COPY OF THE JUDGMENT IN O.S. NO.
80/2001 DATED 6.06.2009 PASSED BY THE
LEARNED SUB COURT KOLLAM.
EXHIBIT P3 A TRUE COPY OF THE PRELIMINARY DECREE IN
O.S. NO.80/2001 DATED 06.06.2009 PASSED
BY THE LEARNED SUB COURT, KOLLAM.
EXHIBIT P4 A TRUE COPY OF THE ORDER PASSED IN I.A.
NO. 998/2009 IN O.S. NO. 80/2001 DATED
27.07.2010 ON THE FILES OF THE LEARNED
SUB COURT, KOLLAM PASSING SUPPLEMENTARY
DECREE.
EXHIBIT P5 A TRUE COPY OF THE I.A. NO. 416//2019
FILED IN A.S. NO. 50/2010 AND 106/2015
BEFORE THE DISTRICT COURT, KOLLAM.
EXHIBIT P6 A TRUE COPY OF THE COMMON JUDGMENT
PASSED BY THE LEARNED DISTRICT COURT,
KOLLAM IN A.S. NO. 50/2010 AND A.S. NO.
106/2015 DATED 27.05.2019.
EXHIBIT P7 A TRUE COPY OF THE PRELIMINARY DECREE
PASSED BY THE LEARNED DISTRICT COURT,
KOLLAM IN A.S. NO. 50/2010 DATED
27.05.2009.
EXHIBIT P8 A TRUE COPY OF THE PRELIMINARY DECREE
PASSED BY THE LEARNED DISTRICT COURT,
KOLLAM IN A.S. NO. 106/2015 DATED
27.05.2019.
RESPONDENT EXHIBITS NIL
