Kerala High Court
Devakikutty vs Balakrishnan on 5 September, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
FAO NOS.143 OF 2022 & 1 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
FAO NO. 143 OF 2022
AGAINST THE ORDER DATED 17.10.2019 IN IA 971/2018 IN OS NO.47
OF 2018 OF SUB COURT, OTTAPPALAM
APPELLANTS/DEFENDANTS 1 TO 3:
1 DEVAKIKUTTY
AGED 71 YEARS
D/O.KIZHUVEETTIL GOPALAN, AND MELEKALAMVEETTIL
KARTIAYANI AMMA, RESIDING AT MELEKALAM VEETTIL,
SREEKRISHNAPURAM PO, ESWARAMANGALAM DESOM, OTTAPALAM
TALUK, PALAKKAD DISTRICT- 679 513
2 CHANDRA MOHAN
AGED 75 YEARS
S/O.KIZHUVEETTIL GOPALAN, AND MELEKALAMVEETTIL
KARTIAYANI AMMA, RESIDING AT MELEKALAM VEETTIL,
SREEKRISHNAPURAM PO, ESWARAMANGALAM DESOM, OTTAPALAM
TALUK, PALAKKAD DISTRICT- 679 513
3 SANTHAKUMAR
AGED 72 YEARS
D/O.KIZHUVEETTIL GOPALAN, AND MELEKALAMVEETTIL
KARTIAYANI AMMA, RESIDING AT MELEKALAM VEETTIL,
SREEKRISHNAPURAM PO, ESWARAMANGALAM DESOM, OTTAPALAM
TALUK, PALAKKAD DISTRICT- 679 513
BY ADVS.
SRI.K.MOHANAKANNAN
SRI.H.PRAVEEN (KOTTARAKARA)
FAO NOS.143 OF 2022 & 1 OF 2023
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RESPONDENTS/PLAINTIFFS:
1 BALAKRISHNAN
AGED 65 YEARS
S/O.KIZHUVEETTIL GOPALAN, AND MELEKALAMVEETTIL
KARTIAYANI AMMA, RESIDING AT MELEKALAM VEETTIL,
SREEKRISHNAPURAM PO, ESWARAMANGALAM DESOM, OTTAPALAM
TALUK, PALAKKAD DISTRICT- 679 513
2 LEELAVATHI
AGED 74 YEARS
D/O.KIZHUVEETTIL GOPALAN, AND MELEKALAMVEETTIL
KARTIAYANI AMMA, RESIDING AT MELEKALAM VEETTIL,
SREEKRISHNAPURAM PO, ESWARAMANGALAM DESOM, OTTAPALAM
TALUK, PALAKKAD DISTRICT- 679 513
3 NARAYANANKUTTY
AGED 68 YEARS
S/O.KIZHUVEETTIL GOPALAN, AND MELEKALAMVEETTIL
KARTIAYANI AMMA, RESIDING AT MELEKALAM VEETTIL,
SREEKRISHNAPURAM PO, ESWARAMANGALAM DESOM, OTTAPALAM
TALUK, PALAKKAD DISTRICT- 679 513
BY ADVS.
SRI.VINOD MADHAVAN
SRI.M.V.BOSE(K/8/1967)
BIJU VARGHESE ERUMALA(B-197)
SMT.SANIYA C.V.(K/749/2021)
SMT.NISHA BOSE(K/1396/1999)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
05.09.2024, ALONG WITH FAO.1/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
FAO NOS.143 OF 2022 & 1 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
FAO NO. 1 OF 2023
AGAINST THE ORDER DATED 14.10.2019 IN IA 720/2019 IN OS NO.47
OF 2018 OF SUB COURT, OTTAPPALAM
APPELLANTS/4TH RESPONDENT AND PETITIONER 1 AND 2:
1 DEVAKIKUTTY
AGED 71 YEARS
D/O.KIZHUVEETIL GOPALAN,AND MELEKALAMVEETTIL KARTIAYANI
AMMA, RESIDING AT MELEKALAM VEETTIL,
SREEKRISHNAPURAM PO, ESWARAMANGALAM DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT-679 513.
2 CHANDRA MOHAN,
AGED 75 YEARS
S/O KIZHUVEETTIL GOPALAN, AND MELEKALAMVEETTIL
KARTIAYANI AMMA, RESIDING AT MELEKALAM VEETTIL,
SREEKRISHNAPURAM PO, ESWARAMANGALAM DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT-679 513.
3 SANTHAKUMAR,
AGED 72 YEARS
D/O KIZHUVEETTIL GOPALAN, AND MELEKALAMVEETTIL
KARTIAYANI AMMA, RESIDING AT MELEKALAM VEETTIL,
SREEKRISHNAPURAM PO, ESWARAMANGALAM DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT-679 513.
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
FAO NOS.143 OF 2022 & 1 OF 2023
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RESPONDENTS/RESPONDENTS 1 TO 3/PLAINTIFFS:
1 BALAKRISHNAN,
S/O KIZHUVEETTIL GOPALAN, AND MELEKALAMVEETTIL
KARTIAYANI AMMA, RESIDING AT MELEKALAM VEETTIL,
SREEKRISHNAPURAM PO, ESWARAMANGALAM DESOM, OTTAPALAM
TALUK, PALAKKAD DISTRICT-679513.
2 LEELEVATHI,
AGED 74 YEARS
D/O KIZHUVEETTIL GOPALAN, AND MELEKALAMVEETTIL
KARTIAYANI AMMA, RESIDING AT MELEKALAM VEETTIL,
SREEKRISHNAPURAM PO, ESWARAMANGALAM DESOM, OTTAPALAM
TALUK, PALAKKAD DISTRICT-679513.
3 NARAYANANKUTTY,
AGED 68 YEARS
S/O KIZHUVEETTIL GOPALAN, AND MELEKALAMVEETTIL
KARTIAYANI AMMA, RESIDING AT MELEKALAM
VEETTIL,SREEKRISHNAPURAM PO,ESWARAMANGALAM DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT-679513.
BY ADVS.
SRI.VINOD MADHAVAN
SRI.M.V.BOSE(K/8/1967)
SRI.BIJU VARGHESE ERUMALA(B-197)
SMT.SANIYA C.V.(K/749/2021)
SMT.NISHA BOSE
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
05.09.2024, ALONG WITH FAO.143/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
FAO NOS.143 OF 2022 & 1 OF 2023
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T.R.RAVI.J
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FAO Nos. 143 of 2022 & 1 of 2023
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Dated this the 05th day of September, 2024
JUDGMENT
The appeals have been preferred against an order
dated 14.10.2019 of Sub Court, Ottappalam in IA
No.720/2019 in OS.No.47/2018. The suit is one for
partition. An application seeking injunction against
committing waste with regard to item No.5 of B
schedule had been allowed. The appellants had filed an
application seeking to vacate the order of injunction. The
application to vacate the injunction was dismissed by the
impugned order and hence these appeals have been filed.
While dismissing the application, the Sub Court,
Ottappalam had found that the property in Sy.No.137/08
FAO NOS.143 OF 2022 & 1 OF 2023
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is liable to be partitioned and the question regarding the
partibility of the building bearing No.3/648 and the
question whether the said building is in Sy.No.137/8 or
Sy.No.137/9 are matters which require evidence. Since
the Court had only passed an order to ensure that the
plaint schedule property is not in any way depleted
during the pendency of the suit, by granting an order of
injunction against committing waste, I do not find any
reason to interfere with the order passed.
2. The counsel for the appellants submits that
the finding regarding the partibility is a matter which
has to be finally decided in the suit. The prima facie
finding which has been rendered for the purpose of grant
of injunction should not affect the trial and the final
hearing of the suit. I find considerable force in the
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above submission.
3. In the above circumstances, the appeals are
dismissed with an observation that the findings regarding
the partibility of the property in Sy.No.137/8 shall not in
any manner affect the trial of the suit and the suit shall
be tried and disposed of untrammeled by the said
finding. Since the issue has been pending for quite some
time and on two occasions, the matter had been
considered in appeal after condonation of delay, the
Court below shall make all effort to try and dispose of
the suit at the earliest, at any rate within eight months
from the date of receipt of a copy of this judgment.
Sd/-
T.R.RAVI
JUDGE
sn
FAO NOS.143 OF 2022 & 1 OF 2023
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PETITIONER ANNEXURES
Annexure A1 CERTIFIED COPY OF THE JUDGEMENT DATED 15-7-
2022 IN CMA 22/22 OF THE ADDITIONAL DISTRICT
JUDGE-V, PALAKKAD
FAO NOS.143 OF 2022 & 1 OF 2023
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PETITIONER ANNEXURES
Annexure A1 CERTIFIED COPY OF THE JUDGMENT DATED 15-7-
2022 IN CMA 22/22 OF THE ADDITIONAL DISTRICT
JUDGE-V, PALAKKAD.
