Kerala High Court
R.Radhakrishnan vs Rugmini on 22 May, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
RSA NO. 186 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
RSA NO. 186 OF 2023
AGAINST THE JUDGMENT AND DECREE DATED 16.09.2022 IN AS NO.11
OF 2021 OF DISTRICT COURT, PALAKKAD
AGAINST THE JUDGMENT AND DECREE DATED 30.11.2020 IN OS
NO.457/2016 OF ADDITIONAL MUNSIFF'S COURT, PALAKKAD
APPELLANTS/APPELLANTS IN AS 11/2021/DEFENDANTS IN OS
NO.457/2016:
1 R.RADHAKRISHNAN
AGED 58 YEARS, ADVOCATE
S/O. LATE BALAKRISHNAN, PANAMTHODY,
NOW RESIDING AT "KRISHNAPADAM",
PIRAYIRI POST, PIRAYIRI AMSON,
PALAKKAD, PIN - 678004
2 B.PRATHAPAN
AGED 56 YEARS
S/O LATE BALAKRISHNAN
PANAMTHODY
NOW RESIDING AT KRISHNANPADAM
PIRAYIRI POST, PIRAYIRI AMSOM
PALAKKAD, PIN - 678004
3 B.KALADHARAN
AGED 54 YEARS
D/O LATE BALAKRISHNAN
PANAMTHODI
NOW RESIDING AT KRISHNAPADAM
PIRAYIRI POST, PIRAYIRI AMSOM
PALAKKAD, PIN - 678004
4 B.LAVANYALATHA
AGED 52 YEARS
D/O LATE BALAKRISHNAN
PANAMTHODI
NOW RESIDING AT VRINDAVANAM
PIRAYII POST, PIRAYIRI AMSOM
RSA NO. 186 OF 2023
2
PALAKKAD, PIN - 678004
REP BY HER MOTHER AND POWER OF ATTORNEY
DEVAYANI, AGED 82 YEARS
W/O LATE BALAKRISHNAN
RESIDING AT KRISHNA PADAM
PIRAYIRI POST, PIRAYIRI AMSOM
PALAKKAD, PIN - 678004
BY ADVS.
M.P.RAMNATH
BEPIN PAUL
S.SANDHYA
SHALU VARGHESE
K.S AKSHAY MOHAN
S.DEEPAK
P.RAJESH (KOTTAKKAL)
M.VARGHESE VARGHESE
ANTONY THARIAN
RESPONDENTS/RESPONDENTS IN AS 11/2021/PLAINTIFFS IN OS
457/2016:
1 RUGMINI
AGED 72 YEARS
W/O LATE BALAKRISHNAN
R.V.P PUDUR ERUTHEMPATHY VILLEGE
CHITOOR TALUK, PALAKKAD DISTRICT,
PIN - 678555
2 KALAVATHY
AGED 56 YEARS
D/O LATE BALAKRISHNAN
R.V.P PUDUR ERUTHEMPATHY VILLEGE
CHITOOR TALUK, PALAKKAD DISTRICT,
PIN - 678555
3 MURUKAVENI
AGED 54 YEARS
D/O LATE BALAKRISHNAN
R.V.P PUDUR, ERUTHEMPATHY VILLEGE
CHITOOR TALUK, PALAKKAD DISTRICT,
PIN - 678555
4 BABY
AGED 48 YEARS
D/O LATE BALAKRISHNAN
RSA NO. 186 OF 2023
3
R.V.P PUDUR, ERUTHEMPATHY VILLEGE
CHITOOR TALUK, PALAKKAD DISTRICT,
PIN - 678555
BY ADV.SRI.RAJESH SIVARAMANKUTTY
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 18.12.2023, THE COURT ON 22.05.2024 DELIVERED THE
FOLLOWING:
RSA NO. 186 OF 2023
4
T.R. RAVI, J.
--------------------------------------------
R.S.A. No.186 of 2023
--------------------------------------------
Dated this the 22nd day of May, 2024
JUDGMENT
The defendants in a suit for partition have filed this appeal,
being aggrieved by the concurrent findings in the judgment and
decree of the trial court and the First Appellate Court. The parties
are referred to as per their status before the trial court.
2. The suit was for the partition of plaint schedule items
1 & 2 which originally belonged to late Balakrishnan. The 1 st
plaintiff is the first wife of late Balakrishnan and plaintiffs 2 to 4
are the children of Balakrishnan in the 1 st plaintiff. The
defendants are the children of Balakrishnan through one
Devayani. When the demand by the plaintiffs for partition and
separate possession was not accepted, the suit was filed seeking
partition and separate possession of 5/9 shares out of the plaint
schedule property after partitioning the property by metes and
bounds. Originally the plaint was filed incorporating plaint
schedule item No.1 property alone and during the pendency of the
suit, the plaint was amended, and plaint schedule item No.2 was
also included.
RSA NO. 186 OF 2023
3. The defendants contended that the plaint schedule item
No.1 property originally belonged to the father of Balakrishnan
named Raghava Panicker, that after the death of the Raghava
Panicker, the properties devolved upon his wife and children, that
a division had been effected between the defendants as per
partition deed No. 827/1982 of Palakkad Sub Registry, that the
defendants are in exclusive ownership of the plaint schedule
property, that defendants 2 to 4 released their right over the
property to the first defendant as per Document No.5374/2006 of
Palakkad Sub Registry, and that the first defendant constructed a
house in the plaint schedule item No.1 property and has exclusive
possession and enjoyment of the property. As regards plaint
schedule item No.2 property, it is contended that the defendants
executed a partition deed as Document No.895/2002 of the
Palakkad Sub Registry and they are in exclusive possession and
enjoyment of their respective shares. They contend that the
rights, if any, of the plaintiffs have been lost by adverse
possession and limitation.
4. The suit was decreed by the trial court. The defendants
filed A.S.No.11 of 2021 before the District Court, Palakkad. It was
contended in the appeal that the parties are governed by
Mithakshara Coparcenary and being the only male members, the
RSA NO. 186 OF 2023
defendants were coparceners entitled to right by birth. They also
contended that the trial court went wrong in rejecting their claim
of adverse possession and ouster.
5. The First Appellate Court dismissed the appeal finding
that the contention regarding Mitakshara Coparcenary cannot be
accepted since there is no pleading and proof regarding the date
of death of Raghava Panicker, the father of Late Balakrishnan, that
in the earlier partitions set up in defence, admittedly, the wife and
daughter was given share (though the wife gave up the share and
accepted a right to reside), which negates the contention of
Mitakshara Coparcenary. Concerning the claim of adverse
possession and ouster, the Appellate Court found that the
admission of the plaintiffs regarding possession of the defendants
or construction of a building by the 1 st defendant in the plaint
schedule item No.1 property or the construction by the 4 th
defendant in plaint schedule item No.2 property, will not be
sufficient to prove ouster among co-owners. The court relied on
the judgment of the Hon'ble Supreme Court in Vidhya Devi v.
Prem Prakash and Ors (1995(4) SCC 496), wherein it was
held that there should be an open assertion of hostile title.
6. Even though several grounds and six substantial
questions of law have been formulated in the memorandum of
RSA NO. 186 OF 2023
regular second appeal, the counsel for the appellant confined his
arguments to two contentions; (i) that the judgment of the trial
court was without jurisdiction and (ii) that the question regarding
ouster has not been properly considered by the trial court as well
as the First Appellate Court. Regarding the first question raised,
the contention of the appellants is that the suit was originally filed
claiming partition of only one item and the valuation shown was
₹10,00,000/- so as to bring it within the pecuniary jurisdiction of
the Munsiff Court. It is stated that though the plaint was
amended to include one additional property, the valuation in the
plaint was not amended. According to the counsel, once an
additional item is included necessarily the valuation would exceed
₹10,00,000/- and the Munsiff Court would no longer have the
pecuniary jurisdiction to continue with the suit under Section
11(2) of the Kerala Civil Courts Act, 1957 as amended by the
Kerala Civil Courts (Amendment) Act, 2013. It is contended that a
proper understanding of the effect of Section 12 of the Kerala
Court Fees and Suits Valuation Act, 1959 (hereinafter referred to
as 'CF Act') and Section 21 of the Code of Civil Procedure can only
lead to the conclusion that the suit was beyond the pecuniary
jurisdiction of the Munsiffs' Court and consequently the judgment
and decree of the trial court were without jurisdiction. Section
RSA NO. 186 OF 2023
12(2) of the CF Act requires a defendant, to plead that the subject
matter of the suit has not been property valued or that the fee
paid is not sufficient, through a written statement filed before the
first hearing of the suit or before evidence is recorded on merits of
the claim but not later, subject to Section 12(3). It further says
that all questions arising on such pleas shall be heard and decided
before evidence is recorded, affecting such defendant, on the
merits of the claim. Even if the court decides that the subject
matter of the suit has not been properly valued, the court must fix
a date before which the plaint has to be amended in accordance
with the court's decision and the deficit fee if any paid. It can
thus be seen that any question regarding valuation is a matter
which must be decided by the court prior to the taking of
evidence. Section 21(2) of the Code of Civil Procedure says that
no objection as to the competence of a court with reference to the
pecuniary limits of its jurisdiction shall be allowed by any appellate
or revisional court, unless such objection was taken in the court of
first instance at the earliest possible opportunity, and, in all cases
where issues are settled, at or before such settlement, and unless
there has been a consequent failure of justice. The counsel for
the appellants contends that the plea regarding valuation had
been raised in the first instance and hence the question regarding
RSA NO. 186 OF 2023
a consequent failure of justice would not arise. According to the
counsel, even though the contention had been raised, the same
was not gone into by the trial court. The counsel for the
respondents, who entered appearance at the stage of admission,
contended that the arguments put forward on behalf of the
appellants cannot be legally sustained in view of the judgment of
this Court in Mercy Joseph Mary Joseph V. M.A.Devassy
(2012 (3) KLT 288). This Court held that going by the scheme
of Section 12 of the CF Act, it is not sufficient that the party raised
a plea in the written statement that the suit is not properly
valued, but he has to alert the court before recording of evidence
commences, about the question raised in the written statement,
and invite a decision on that question. This Court held that the
court has a duty to decide such questions before recording of
evidence commences. In the case on hand, the appellant does
not have a case that the court was ever alerted about this aspect
and a decision on the question was invited. It is also evident on a
reading of the judgment of the First Appellate Court that no
contention was taken regarding the valuation of the suit in the
First Appellate Court also. In Mercy Joseph (supra) this Court
held that in view of Section 21(2) of the Code of Civil Procedure,
an objection regarding the competence of the trial court with
RSA NO. 186 OF 2023
reference to pecuniary limit cannot be allowed by the appellate or
revisional court unless such objection was taken in the court at
the first instance and unless there has been a consequent failure
of justice. After considering the meaning of the term "consequent
failure of justice" with reference to the judgment of the Hon'ble
Supreme Court, the court in the said case went on to hold that
there was no failure of justice because of incorrect finding
regarding the valuation. The counsel for the appellants submitted
that if the question of jurisdiction was also involved, there is
nothing wrong in the Appellate Court going into the question
regarding valuation. I do not think this is a fit case to go into
such questions. The Hon'ble Supreme Court in Rafique Bibi (D)
by LRs. V. Sayed Waliuddin (D) by Lrs. and Ors. (AIR 2003
SC 3789) considered the question of a decree being void and held
that a decree can be said to be without jurisdiction, and hence a
nullity, if the Court passing the decree has usurped a jurisdiction
which it did not have; a mere wrong exercise of jurisdiction does
not result in nullity. The court found that the lack of jurisdiction in
the court passing the decree must be patent on its face in order to
enable the executing court to take cognizance of such nullity
based on want of jurisdiction, else the normal rule that an
executing court cannot go behind the decree must prevail. This is
RSA NO. 186 OF 2023
a case in which the plaintiffs had earlier approached a civil court
for a declaration that they are legal heirs of deceased
Balakrishnan which became final only with the judgment in the
Second Appeal No.568/1987. It is after establishing their right as
legal heirs of Balakrishnan that the suit for partition was filed.
The appellants have been denying the rightful claims of the
plaintiffs for their share in the property of late Balakrishnan and
holding on to the properties all these years. The rights of the
plaintiffs cannot be made illusory by the fault of the appellants
themselves in not inviting a decision under Section 12(2) of the CF
Act with regard to valuation before the suit proceeded for
evidence. Not only did they invite a decision on that point by the
trial court before the recording of evidence, but they also did not
raise such a contention before the First Appellate Court. A
contention taken in the second appeal for the first time, though
supported by pleadings, cannot be entertained as a substantial
question of law. It is also significant that though it is contended
that the question of valuation had been raised in the written
statement, the appellants did not choose to give any oral evidence
in support of the contention regarding the valuation of the
property. As such, questions raised in that regard cannot be
treated as substantial questions of law. With regard to ouster
RSA NO. 186 OF 2023
also, the defendants did not enter the box and give any evidence
regarding ouster. A mere allegation in the written statement is
not sufficient to prove ouster. As held by the trial court and the
First Appellate Court it is not sufficient that the defendants show
that they are in possession for several years. The trial court as
well as the First Appellate Court have arrived at the right
conclusion applying the correct law.
No interference is warranted, and the second appeal is
dismissed.
Sd/-
T.R. RAVI
JUDGE
Pn
