Chemmili Kunhalavi vs Chemmili Muidheen'S Son Theni
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Kerala High Court

Chemmili Kunhalavi vs Chemmili Muidheen'S Son Theni on 15 February, 2024

Author: Sathish Ninan

Bench: Sathish Ninan

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR. JUSTICE SATHISH NINAN
 THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                      AS NO. 611 OF 1999
    AGAINST THE JUDGMENT AND DECREE DATED 30.08.1997 IN
         O.S.NO.64 OF 1990 OF THE SUB COURT, TIRUR
APPELLANT/1ST DEFENDNAT/ADDITIONAL APPELLANTS:

    1    CHEMMILI KUNHALAVI (DIED),
         S/O CHEMMILI MUIDHEEN, OMACHAPUZHA AMSOM,
         KARINGAPPARA DESOM, TIRUR TALUK.
    2    ADDL.A2: HAMZA
         S/O LATE KUNHALAVI, OMACHAPUZHA AMSOM,
         KARINGAPPARA DESOM, TIRUR RALUK.
    3    ADDL.A3: SAIDALIKUTTY
         S/O LATE KUNHALAVI, OMACHAPUZHA AMSOM,
         KARINGAPPARA DESOM, TIRUR RALUK.
    4    ADDL.A4: FATHIMA
         D/O. LATE KUNHALAVI, OMACHAPUZHA AMSOM,
         KARINGAPPARA DESOM, TIRUR RALUK.
    5    ADDL.A5: MOOSA
         S/O LATE KUNHALAVI, OMACHAPUZHA AMSOM,
         KARINGAPPARA DESOM, TIRUR RALUK.
         LEGAL HEIRS OF DECEASED 1ST APPELLANT IMPLEADED
         AS ADDITIONAL APPELLANTS 2 TO 5 AS PER ORDER
         DATED 17/09/2008 IN CMP 2166/03.
         BY ADVS.
         K.JAYESH MOHANKUMAR
         KODOTH PUSHPARAJAN
         M.KRISHNAKUMAR
         PRABHA R.MENON


RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 AND
3/ADDL.RESPONDENTS:

    1    CHEMMILI MUIDHEEN'S SON THENI (DIED),
         OMACHAPPUZHA AMSOM, KARINGAPPARA DESOM,
         TIRUR TALUK.
 A.S.No.611 of 1999           -: 2 :-


    2      KOYA (DIED),
           S/O CHEMMILI MUIDHEEN, RESIDING AT OMACHAPUZHA
           AMSOM, KARINGAPPARA DESOM, TIRUR RALUK.
    3      KADEEJA UMMA (DIED),
           W/O KOYA, D/O KOTTUVALA MOOSA,
           RESIDING AT OMACHAPUZHA AMSOM, KARINGAPPARA
           DESOM, TIRUR RALUK.
    4      ADDL. R4: MOIDEEN (DIED),
           S/O LATE KUNHALAVI, OMACHAPUZHA AMSOM,
           KARINGAPPARA DESOM, TIRUR RALUK.
    5      ADDL.R5: MUHAMMAD KUTTY
           S/O LATE KUNHALAVI, OMACHAPUZHA AMSOM,
           KARINGAPPARA DESOM, TIRUR RALUK.
           LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE
           IMPLEADED AS ADDITIONAL RESPONDENTS 4 AND 5 AS
           PER ORDER DATED 17/09/08 IN CMP 2166/03.
    6      ADDL.R6: KATHIYAKUTTY
           W/O LATE THENI, OMACHAPUZHA AMSOM, KARINGAPARA
           DESOM, TIRUR RALUK.
    7      ADDL.R7: MUHAMMEDKUTTY (DIED),
           S/O, LATE THENI, RESIDING AT OMACHAPUZHA
           AMSOM, KARINGAPARA DESOM, TIRUR TALUK.
    8      ADDL.R8: MOIDEEN
           S/O LATE THENI, RESIDING AT OMACHAPUZHA AMSOM,
           KARINGAPARA DESOM, TIRUR TALUK.
    9      ADDL. R9: AYISHA
           D/O LATE THENI, RESIDING AT OMACHAPUZHA AMSOM,
           KARINGAPARA DESOM, TIRUR TALUK.
    10     ADDL.R10: FATHIMA,
           D/O LATE THENI, RESIDING AT OMACHAPUZHA AMSOM,
           KARINGAPARA DESOM, TIRUR TALUK.
    11     ADDL.R11: KOYA
           S/O LATE THENI, RESIDING AT OMACHAPUZHA AMSOM,
           KARINGAPARA DESOM, TIRUR TALUK.
    12     ADDL.R12: UMMER
           S/O LATE THENI, RESIDING AT OMACHAPUZHA AMSOM,
           KARINGAPARA DESOM, TIRUR TALUK.
           ADDITIONAL RESPONDENTS 6 TO 12 ARE IMPLEADED
           AS THE LEGAL HEIRS OF THE DECEASED 1ST
           RESPONDENT VIDE ORDER DATED 20.12.2021 IN
           I.A.8/2003.
 A.S.No.611 of 1999           -: 3 :-


    13     ADDL. R13: KUNHAISHA,
           W/O.ADDITIONAL 4TH RESPONDENT LATE MOIDEEN,
           CHEMMILI HOUSE, OMACHAPUZHA POST,
           KARINGAPPARA, MALAPPURAM DISTRICT-676320.
    14     ADDLN R14: SAMEERA,
           D/O ADDITIONAL 4TH RESPONDENT LATE MOIDEEN,
           CHEMMILI HOUSE, OMACHAPUZHA POST,
           KARINGAPPARA, MALAPPURAM DISTRICT-676320.
    15     ADDL. R15: MOHAMMED SHAFI,
           S/O ADDITIONAL 4TH RESPONDENT LATE MOIDEEN,
           CHEMMILI HOUSE, OMACHAPUZHA POST,
           KARINGAPPARA, MALAPPURAM DISTRICT-676320.
    16     ADDL. R16: FAISAL,
           S/O ADDITIONAL 4TH RESPONDENT LATE MOIDEEN,
           CHEMMILI HOUSE, OMACHAPUZHA POST, KARING
           APPARA, MALAPPURAM DISTRICT-676320.
    17     ADDL. R17: SAINUL ABID,
           S/O. ADDITIONAL 4TH RESPONDENT LATE MOIDEEN,
           CHEMMILI HOUSE, OMACHAPUZHA POST,
           KARINGAPPARA, MALAPPURAM DISTRICT-676320.
    18     ADDL.R18: ABUBACKER,
           S/O. ADDITIONAL 4TH RESPONDENT LATE MOIDEEN,
           CHEMMILI HOUSE, OMACHAPUZHA POST,
           KARINGAPPARA, MALAPPURAM DISTRICT-676320.
    19     ADDL.R19: SULTAN,
           S/O. ADDITIONAL 4TH RESPONDENT LATE MOIDEEN,
           CHEMMILI HOUSE, OMACHAPUZHA POST,
           KARINGAPPARA, MALAPPURAM DISTRICT-676320.
           ADDITIONAL RESPONDENTS 13 TO 19 ARE IMPLEADED
           AS THE LEGAL HEIRS OF THE DECEASED 4TH
           RESPONDENT VIDE ORDER DATED 20.12.2021 IN
           I.A.NO.4/2020.
    20     ADDL. R20: KUNHATHU,
           D/O. ADDITIONAL 7TH RESPONDENT LATE
           MUHAMMEDKUTTY, CHEMMILI HOUSE, OMACHAPUZHA
           POST, KARINGAPPARA, MALAPPURAM DISTRICT-
           676320.
    21     ADDL.R21: LAILA,
           D/O ADDITIONAL 7TH RESPONDENT LATE
           MUHAMMEDKUTTY, CHEMMILI HOUSE, OMACHAPUZHA
           POST, KARINGAPPARA,
           MALAPPURAM DISTRICT-676320.
 A.S.No.611 of 1999           -: 4 :-


    22     ADDL.R22: SHERIFF,
           S/O. ADDITIONAL 7TH RESPONDENT LATE
           MUHAMMEDKUTTY, CHEMMILI HOUSE, OMACHAPUZHA
           POST, KARINGAPPARA, MALAPPURAM DISTRICT-
           676320.
    23     ADDL.R23: SAMEERA,
           D/O ADDITIONAL 7TH RESPONDENT LATE
           MUHAMMEDKUTTY, CHEMMILI HOUSE, OMACHAPUZHA
           POST, KARINGAPPARA,
           MALAPPURAM DISTRICT-676320.
           ADDITIONAL RESPONDENTS 20 TO 23 ARE IMPLEADED
           AS THE LEGAL HEIRS OF THE DECEASED 7TH
           RESPONDENT VIDE ORDER DATED 20.12.2021 IN
           I.A.NO.1/2020.
    24     ADDL. R24: AYSHUMMA,
           D/O. 2ND RESPONDENT LATE KOYA, CHEMMILI HOUSE,
           OMACHAPUZHA POST, KARINGAPPARA,
           MALAPPURAM DISTRICT-676320.
    25     ADDL.R25: ASHRAF,
           S/O. 2ND RESPONDENT LATE KOYA, CHEMMILI HOUSE,
           OMACHAPUZHA POST, KARINGAPPARA,
           MALAPPURAM DISTRICT-676320.
    26     ADDL.R26: ABDU SAMAD,
           S/O. 2ND RESPONDENT LATE KOYA, CHEMMILI HOUSE,
           OMACHAPUZHA POST, KARINGAPPARA,
           MALAPPURAM DISTRICT-676320.
    27     AADL.R27: SAINABA,
           D/O. 2ND RESPONDENT LATE KOYA, CHEMMILI HOUSE,
           OMACHAPUZHA POST, KARINGAPPARA,
           MALAPPURAM DISTRICT-676320.
           ADDITIONAL RESPONDENTS 24 TO 27 ARE IMPLEADED
           AS THE LEGAL HEIRS OF THE DECEASED 2ND AND 3RD
           RESPONDENTS VIDE ORDER DATED 20.12.2021 IN
           I.A.7/2020.
 A.S.No.611 of 1999                    -: 5 :-


           BY ADVS.
           Marian G M Tharakan
           SRI.P.CHANDRASEKHAR
           SRI.K.K.MOHAMED RAVUF
           SHRI.SATHEESH V.T.
           SMT.RANI MADHU
           S.V.BALAKRISHNA IYER (SR.)
           P.CHANDRASEKHAR
           HARISH R. MENON
           T.KRISHNANUNNI (SR.)
           T.SETHUMADHAVAN (SR.)


THIS   APPEAL        SUITS   HAVING     COME    UP   FOR   HEARING   ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                         SATHISH NINAN, J.
               = = = = = = = = = = = = = = = = = =
                       A.S.No.611 of 1999
               = = = = = = = = = = = = = = = = = =
            Dated this the 15th day of February, 2024


                             JUDGMENT

The preliminary decree in a suit for partition is

under challenge by the 1st defendant.

2. The plaint schedule consists of 7 items of

properties. The scope of this appeal is very limited.

The appeal is confined to the claim of equity and

reservation with regard to the improvements effected by

the 1st defendant in the plaint schedule item No.2

property.

3. Late Moideen, the father of the plaintiff and

defendants 1 and 2, was the owner of the property. The

3rd defendant is the wife of the 2 nd defendant. Apart

from the plaintiff and defendants 1 and 2, Moideen had

two daughters. The wife of Moideen had assigned her

rights to the plaintiff, 1 st defendant and the two

daughters as per document No.1084 of 1976. The sisters

released their rights in favour of the plaintiff as per

document No.627 of 1980. The plaintiff seeks for

partition of his share.

4. The 1st defendant, though filed a written

statement claiming reservation with regard to the

building and other improvements allegedly put up by him

in the plaint schedule item No.2 property, chose to

remain ex parte.

5. The trial court found that there is no

evidence to find exclusive title of the 1 st defendant

over the alleged improvements made and thus, the claim

for reservation was negatived. It is challenging the

same that the 1st defendant has filed this appeal.

6. I have heard learned counsel on either side.

7. The point that arises for determination is;

"Is the decree and judgment of the trial court, declining to grand reservation to the 1st defendant with regard to the improvements in plaint schedule item No.2 property, liable to be interfered with?"

8. But for raising a plea with regard to the

improvements in plaint schedule item No.2 property, as

noticed, the 1st defendant remained ex parte in the

proceedings. Consequent on the lack of evidence, the

trial court rejected the plea and directed the entire

plaint schedule item No.2 property with the

improvements, to be partitioned. In the absence of any

evidence, the trial court had no other option but to

declined the claim of reservation. Though the learned

counsel for the appellant seeks for remand of the suit

to enable the 1st defendant to adduce evidence with

regard to the claim, taking note of the fact that the

suit is of the year 1991 and this appeal itself is of

the year 1999, I do not think that such a request is to

be entertained at this stage. The claim of the 1 st

defendant to exclude the improvements, was rightly

declined by the trial court.

9. Interests of justice will be met by ordering

that the claim for equitable allotment of the portion of

plaint schedule item No.2 property covered by the

improvements, if any, effected by the 1 st defendant is

considered in the final decree proceedings. The 1 st

defendant, if he appears in the final decree

proceedings, will be given an opportunity to adduce

evidence with regard to the same. However, it is

clarified that, item number 2 along with the

improvements are liable for partition.

10. But for reserving the right for equitable

claim noted above, no other interference is called for

with the decree and judgment of the trial court. The

appeal is disposed of as above. No costs.

The parties shall appear before the trial court on

28.02.2024. I am sure that the trial court will expedite

the final decree proceedings taking note of the fact

that the suit is of the year 1991.

Sd/-

SATHISH NINAN, JUDGE

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