Kerala High Court
Kunhikandy Devi vs P.E.Chandran on 23 May, 2025
2025:KER:37802
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 23RD DAY OF MAY 2025 / 2ND JYAISHTA, 1947
RSA NO. 1322 OF 2019
AGAINST THE JUDGMENT AND DECREE DATED 31.08.2019 IN
AS NO.49 OF 2006 OF ADDITIONAL DISTRICT COURT - III,
THALASSERY ARISING OUT OF THE JUDGMENT AND DECREE DATED
30.11.2005 IN OS NO.90 OF 2003 OF SUB COURT, THALASSERY
APPELLANT/APPELLANTS 2,3,5,6,8 AND SUPPLEMENTAL APPELLANTS
9 TO 19/DEFENDANTS 2,3,5,6,8 AND LEGAL HEIRS OF DECEASED
DEFENDANTS 4 AND 7:
1 KUNHIKANDY DEVI
AGED 60 YEARS
D/O. LATE KUNHAPPA EMBRON, NO. OCCUPATION, KAVILE
PARAMBA, PATTANNUR AMSOM DESOM, P.O. PATTANNUR
KANNUR DISTRICT 670 602.
2 KUNHIKANDY BALAKRISHNAN
AGED 61 YEARS
S/O. LATE KUNHAPPA EMBRON, TEACHER, KRISHNA
LEELA, KOLAPPA P.O. PATTANNUR, KANNUR DISTRICT
670 602.
3 KUNHIKANDY OMANA,
AGED 53 YEARS
D/O. LATE KUNHAPPA EMBRON, NO. OCCUPATION, KAVILE
PARAMBA, PATTANNUR AMSOM DESOM, P.O. PATTANNUR
KANNUR DISTRICT 670 602.
4 KUNHIKANDY RAJAN,
AGED 53 YEARS
S/O.LATE KUNHAPPA EMBRON, NO. OCCUPATION, KAVILE
PARAMBA, PATTANNUR AMSOM DESOM, P.O. PATTANNUR
KANNUR DISTRICT 670 602.
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5 JANU,
AGED 68 YEARS
W/O. LATE P.P. NARAYANAN, NO OCCUPATION,
PUTHIYAPURAYIL HOUSE, KODOLIPRAM, P.O. PATTANNUR,
KANNUR DISTRICT 670 602.
6 SANILA.K.,
AGED 53 YEARS
W/O. LATE KUNHIKANDY CHANDRAN,KANNANGEEL HOUSE
P.O. MALAPATTAM, KANNUR, 670 631.
7 ANAGHA CHANDRAN,
AGED 19 YEARS
D/O. LATE KUNHIKANDY CHANDRAN,KANNANGEEL HOUSE
P.O. MALAPATTAM, KANNUR, 670 631.
8 KALLAYANI KEECHILADAN,
AGED 86 YEARS
W/O. LATE RAMAN, NANCHADATH HOUSE, MANNUR P.O.
PORORA, MATTANNUR 670 702.
9 GOVINDAN KEECHILADAN,
AGED 68 YEARS
S/O. LATE RAMAN, KARAYI HOUSE, KALLOOR P.O.
MATTANNUR, KANNUR 670 702.
10 MUKUNDAN KEECHILADAN,
AGED 66 YEARS
S/O. LATE RAMAN NANCHADATH HOUSE, MANNUR P.O.
PORORA MATTANNUR, KANNUR 670 702.
11 MADHAVI KEECHILADAN,
AGED 63 YEARS
D/O. LATE RAMAN, NANCHADATH HOUSE, MANNUR ,
MATTANNUR, KANNUR 670 702.
12 RAJAN KEECHILADAN,
AGED 59 YEARS
S/O. LATE RAMAN, NANCHADATH HOUSE, MANNUR ,
MATTANNUR, KANNUR 670 702.
13 NARAYANAN KEECHILADAN,
AGED 56 YEARS
S/O. LATE RAMAN, NIKHIL NIVAS,MULLYAM ,P.O.
PORORA MATTANNUR, KANNUR 670 702.
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14 ROHINI KEECHILADAN,
AGED 51 YEARS
D/O. LATE RAMAN, THUNDIYIL HOUSE, MANNUR PARAMBA
P.O. PORORA, MATTANNUR, KANNUR 670 702.
15 KAMALA KEECHILADATH,
AGED 46 YEARS
D/O. LATE RAMAN , ATHULYALAYAM ADAKKAKALAM P.O.
PATTANNUR, EDAYANNUR, KANNUR 670 595.
16 THANKAMANI,
AGED 42 YEARS
D/O. LATE RAMAN, SACHIN HOUSE, MANNUR MICHABOOMI,
P.O. PORORA, MATTANNUR, KANNUR 670 702.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SRI.K.C.KIRAN
SMT.M.R.MINI
SRI.M.DEVESH
SRI.ASHWIN SATHYANATH
SRI.ROHIT NANDAKUMAR
SHRI.ANISH ANTONY ANATHAZHATH
RESPONDENTS/RESPONDENTS 5,6,7,8 TO 19 AND SUPPLEMENTAL
RESPONDENTS 20 TO 36/PLAINTIFFS 5 TO 19 AND LEGAL HEIRS OF
DECEASED PLAINTIFFS 1,3 AND 4:
1 P.E.CHANDRAN
S/O.K.K. CHANDRAN NAMBIAR, ANJANAM KUNNOTH, P.O.
PATTANNUR, KANNUR 670 595.
2 P.E. PAVITHRAN,
AGED 59 YEARS
S/O. CHANDRAN NAMBIAR. K.K. , KOMATH HOUSE,
PATTANNUR, KANNUR 670 595.
3 P.E. SREENIVASAN
AGED 57 YEARS
S/O.K.K. CHANDRAN NAMBIAR, KOMATH HOUE, P.O.
PATTANNUR, KANNUR 670 595.
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4 P.E. GEETHA
AGED 52 YEARS
D/O.K.K. CHANDRAN NAMBIAR,NO OCCUPATION,
HARITHAM, . PATTANNUR, KANNUR 670 595.
5 P.E. KRISHNAN NAMBIAR,
AGED 79 YEARS
S/O. NARAYANAN NAMBIAR, RETRIED TEACHER, TAPASYA,
PATTANUR, KANNUR 670 595.
6 P.E. NARAYANI AMMA
AGED 76 YEARS
D/O. NARAYANAN NAMBIAR, MANHWERI HOUSE, VAYAKKARA
P.O. KAITHAPRAM, KOZHIKODE 670 631.
7 P.E. KALLIANI AMMA
AGED 67 YEARS
D/O. NARAYANAN NAMBIAR, TEACHER, ELAYAVOOR AMSOM,
PATTANNUR P.O. KANNUR 670 595.
8 P.E. VIJAYAN NAMBIAR
AGED 64 YEARS
S/O. NARAYANAN NAMBIAR, TEACHER, MATTANNUR P.O. ,
PATTANNUR , KANNUR 670 595.
9 P.E. AMBUJAKSHY
AGED 53 YEARS
D/O. KRISHNAN NAMBIAR, KALATHIL HOUSE, VAYAKKARA
P.O. KAITHAPRAM, KOZHIKODE 670 631.
10 P.E. RAMESAN
AGED 52 YEARS
S/O. KRISHNAN NAMBIAR, AGRICULTURIST, MANHERI
HOUSE, VAYAKKARA, P.O. KAITHAPRAM, KOZHIKODE 670
631.
11 P.E. RAGHAVAN
AGED 49 YEARS
S/O. KRISHNAN NAMBIAR, AGRICULTURIST, MANHERI
HOUSE, VAYAKKARA, P.O. KAITHAPRAM, KOZHIKODE 670
631.
12 P.E. SAKUNTHALA
AGED 47 YEARS
D/O. KRISHNAN NAMBIAR, MANHERI HOUSE, VAYAKKARA,
P.O. KAITHAPRAM, KOZHIKODE 670 631.
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13 P.E. RAMANI
AGED 43 YEARS
D/O. KRISHNAN NAMBIAR, MANHERI HOUSE, VAYAKKARA,
P.O. KAITHAPRAM, KOZHIKODE 670 631.
14 P.E. RAJESH
AGED 38 YEARS
S/O. KRISHNAN NAMBIAR, MANHERI HOUSE, VAYAKKARA,
P.O. KAITHAPRAM, KOZHIKODE 670 631.
15 P.E. SANKARAN NAMBIAR,
AGED 79 YEARS
S/O. KUNHIKRISHNAN NAMBIAR, SHUBHA NILAYAM,
PATTANNUR, KANNUR 670 595.
16 R.V. KARTHIYANI AMMA
AGED 83 YEARS
W/O. LATE P.E. GOVINDAN NAMBIAR, MANJERI HOUSE,
PATTANNUR P.O. KANNUR 670 595.
17 R.V. SATHYA
AGED 62 YEARS
D/O. P.E. GOVINDAN NAMBIAR, SANTHOSH BHAVAN,
KOLAPPA, PATTANNUR P.O. KANNUR 670 595.
18 R.V. VENUGOPALAN
AGED 60 YEARS
S/O. P.E. GOVINDAN NAMBIAR, MANJERI HOUSE,
PATTANNUR P.O. KANNUR 670 595.
19 R.V. PHALGUNAN
AGED 55 YEARS
S/O. P.E. GOVINDAN NAMBIAR, KOLANGARETH HOUSE,
MANATHANA P.O. KELAKAM, KANNUR 670 674.
20 R.V. SULEKHA
AGED 52 YEARS
D/O. P.E. GOVINDAN NAMBIAR,LAKHALAYAM, MANATHANA
P.O. KELAKAM, KANNUR 670 674.
21 O.M. KAMALAKSHI AMMA,
AGED 75 YEARS
W/O. P.E. KUNHANANDAN NAMBIAR, KOMATH HOUSE,
KUNNOTH, PATTANNUR P.O. KANNUR 670 595.
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22 O.M. INDIRA
D/O.P.E. KUNHANANDAN NAMBIAR, SAJINALAYAM,
KUNNOTH, PATTANNUR P.O. KANNUR 670 595.
23 O.M. SURESH
AGED 57 YEARS
S/O.P.E. KUNHANANDAN NAMBIAR, KOMATH HOUSE,
KUNNOTH, PATTANNUR P.O. KANNUR 670 595.
24 O.M. PRAKASHAN
AGED 54 YEARS
S/O.P.E. KUNHANANDAN NAMBIAR, ANANDA PADMAM,,
KUNNOTH, PATTANNUR P.O. KANNUR 670 595.
25 O.M. ASOKAN
AGED 51 YEARS
S/O.P.E. KUNHANANDAN NAMBIAR, KOODALI P.O. KANNUR
670 592.
26 O.M. RANJITH
AGED 49 YEARS
S/O.P.E. KUNHANANDAN NAMBIAR, KOMATH
HOUSE,KUNNOTH, PATTANNUR P.O. KANNUR 670 595.
27 M. KALLIANIKUTTY AMMA,
AGED 72 YEARS
W/O.P.E. KUNHIRAMAN NAMBIAR, KALLIYAD, IRIKKUR
P.O. KANNUR 670 593.
28 JALAJA. M.
AGED 51 YEARS
D/O.P.E. KUNHIRAMAN NAMBIAR LAKSHMI BHAVAN,
MAMANAM, IRIKKUR P.O. KANNUR 670 593.
29 SREEJA.M
AGED 49 YEARS
D/O. P.E. KUNHIRAMAN NAMBIAR, SREERAGAM HOUSE,
MAMANAM, IRIKKUR P.O. KANNUR 670 593.
30 ROJA M
AGED 42 YEARS
D/O. P.E. KUNHIRAMAN NAMBIAR, SIVAPURAM HOUSE,
KAITHAPRAM P.O. KANNUR 670 631.
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MANOJ.M
31 AGED 45 YEARS
S/O. P.E. KUNHIRAMAN NAMBIAR, SREERAGAM HOUSE,
KALLIYAD, IRIKKUR P.O. KANNUR 670 593.
32 SUMOD. M
S/O. P.E. KUNHIRAMAN NAMBIAR, SREERAGAM HOUSE,
KALLIYAD, , IRIKKUR P.O. KANNUR 670 593.
BY ADVS.
SRI.THIYYANNOOR RAMAKRISHNAN
SRI.LIJIN THAMBAN
SMT.AMBIKA RADHAKRISHNAN
SRI.P.VISWANATHAN (SR.)
SRI.ARUN KUMAR.P
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 23.05.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA No.1322/2019
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EASWARAN S., J.
---------------------------------------------------------
R.S.A No.1322 of 2019
---------------------------------------------------------
Dated this the 23rd day of May, 2025
JUDGMENT
The defendants 2, 3, 5 ,6 , 8 and the legal heirs of deceased
defendants 4 and 7 in O.S.No.90/2003 on the files of Sub Court,
Thalassery, are the appellants herein.
2. The deceased 1st respondent and 2nd respondent along
with respondents 4 to 19 herein instituted the suit for declaration of
title and recovery of possession of 1.36 Acres of land in Resurvey
No.83/3 of Pallur Amsom. According to the plaintiffs, the plaint
schedule property belonged to Pattannoor Idathil Tarawad, which was
partitioned as per registered Deed No.1247/1890 of Anjarakkandy Sub
Registry Office. As per the partition, the plaint schedule property was
allotted to the second thavazhi and a registered partition deed was
executed in year 1954 as Partition Deed No.497/1954 of Irikkur Sub
Registry Office, partitioning the properties allotted to the second
thavazhi among the plaintiffs. The plaint schedule property is included
as item no.6 in the partition deed of the year 1954. The plaint
schedule property was not subjected to any partition, since there
existed a Puthiya Bhagavathi Temple comprised in the said property
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and the property was reserved for maintenance of the temple. During
February 2003, the defendants with an intention to grab the plaint
schedule property, trespassed into the property and committed
mischief and hence the suit.
3. The defendants entered appearance and contested the
suit. According to them, the plaint schedule property belonged to the
family of Kunhappa Embron, as an ancient jenm in possession. There
was a Bhagavathi Kottam of the defendants' family in the plaint
schedule property and a family house of the defendants were also
there, where the family resided. For the purpose of a loan from one
Parakkadavath Kunhami Mappila, a 'panayadharam' was executed by
Kavil Kunhappa over the plaint schedule property. Later the mortgage
was released on 07.08.1890 by executing a registered lease deed.
While so, the 1st plaintiff filed O.S.No.900/1958 before the Munsiff
Court, Kannur, claiming arrears of rent against the thavazhi of
Embron. The defendants disputed the title of the plaintiff over the
plaint schedule property and that the suit was dismissed on
17.12.1959 and therefore, the present suit is barred by res judicata.
4. After the death of Kunhappa Embron, the other members
of the family are alone entitled for the plaint schedule property. While
so, during the life time of Kunhappa Embron, he made gift of the
entire property except 13 cents as per gift deed dated 02.12.1983 to
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the children and thereafter, made a gift in the year 1989 in respect of
13 cents to his wife Madhavi. The defendants are paying tax and
mutated the respective shares allotted to them as per the gift deed.
5. It was further contended that the partition deed per se will
not confer any right, title and interest over the property. In support of
the pleadings, the plaintiffs produced Exts.A1 to A8 and the
defendants produced Exts.B1 to B9 series. PW1 was examined on
behalf of plaintiffs and DW1 and DW2 were examined on behalf of the
defendants. On the basis of the pleadings, the Trial Court framed the
following issues:
1. Whether the plaintiffs have title to the plaint schedule
property?
2. Whether the plaintiffs are entitled to recover the
possession of plaint schedule property from the defendants on
the strength of title?
3. Whether the defendants and their predecessors have any
continuous, uninterrupted, open and hostile possession of the
plaint schedule property thus prescribing title and disentitling
the plaintiffs from getting back the possession?
4. Reliefs and costs.
6. The Trial Court, on appreciation of evidence, found the title
in favour of the plaintiffs by rejecting the contention of the defendants
that the partition deed per se will not prove the right, title and interest
over the property. In arriving to such conclusion, the Trial Court relied
on Ext.A2, which is extract of Adangal Register maintained at the
Village Office. The plea of the defendants that the suit was barred by
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res judicata was rejected by the Trial Court. Aggrieved by the
judgment and decree of the Trial Court, the appellants preferred an
appeal before the Addl. District Court - III, Thalassery, wherein the
appellants specifically pleaded that the prior document which lead to
execution of Ext.A1 having not been produced by the plaintiff, the
cloud around the title and possession of the property has not been
dispelled. In order to support the said contention, I.A.No.1620/2018
was filed. The aforesaid interlocutory application was one under Order
XLl Rule 27 of the Code of Civil Procedure, 1908 (CPC). The First
Appellate Court rejected the application on 31.08.2019 and on the
very same day, the judgment in the appeal was pronounced and the
appeal was dismissed. It is thus the defendants 2, 3, 5, 6, 8 and legal
heirs of deceased defendants 4 and 7 are before this Court in the
present appeal.
7. While admitting the appeal, this Court framed the following
question of law:
"Did not the First Appellate Court err in dismissing the
I.A.No.1620/2018, the application under Order XLl Rule 27 of
the Code of Civil Procedure?"
8. Heard, Sri.T.Krishnanunni - learned Senior Counsel,
assisted by Smt.Meena A., appearing for the appellants and
Sri.P.Viswanathan - learned Senior Counsel, assisted by Sri.Arun
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Kumar, appearing for the respondents,.
9. Though the learned Senior Counsel for the appellants
raised several issues touching upon the sustainability of the findings
rendered by the Trial Court as regards the title and possession of the
plaintiffs over the plaint schedule property and also on the question as
to whether the burden lies on the plaintiffs or the defendants to prove
the title in a suit for declaration and recovery of possession, this Court
finds that in the light of the specific question of law framed while
admitting the appeal, it may not be necessary for this Court to delve
upon those issues at large.
10. In order to consider the issue as to whether the 1 st
Appellate Court was justified in rejecting I.A.No.1620/2018, this Court
needs to consider two issues. The interlocutory application was filed
on 25.07.2018 and it was listed for hearing on 07.08.2019. It appears
that the Trial Court had taken up the interlocutory application along
with the main appeal and dismissed the same by a separate order.
The question is whether the appellant can challenge the order
dismissing the interlocutory application in the present appeal. In the
considered view of this Court, in the light of the provisions contained
Order XLl Rule 27 of CPC, the appellants are certainly entitled to
question the order passed in I.A.No.1620/2018 in the present appeal
without separately challenging the same. On a perusal of the order
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passed by the First Appellate Court, it is seen that the First Appellate
Court found a primary opinion that the grounds laid down under Order
XLl Rule 27 has not been made out in the interlocutory application.
Secondly, the First Appellate Court rejected the application on the
ground that the plea raised in the application under Order XLl Rule 27
does not form the basis of the pleadings before the Trial Court.
11. On a perusal of the application filed under Order XLl Rule
27 of the CPC, it is explicitly clear that the appellants herein had
specifically pleaded the circumstances under which the application is
preferred. In fact, it is specifically pleaded that since there is a
challenge regarding the title of the plaintiffs and that the partition
deed per se will not confer any right, title and interest over the
property, the burden was on the plaintiffs to produce the prior deed.
Therefore, this Court is not impressed by the findings rendered by the
First Appellate Court that the conditions specified under Order XLl Rule
27 of the CPC is not available in the facts of the present case. It is
pertinent to note that once the conditions specified under Order XLl of
the CPC Rule 27 are satisfied, the Appellate Court is bound to accept
the additional evidence.
12. In the present case, the question is whether it was the
duty of the plaintiffs to have produced the prior title deed that is
Document No.1247/1890 or not. It is beyond doubt that the partition
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deed per se will not confer any title on the parties to it and especially
when there was a specific challenge raised to the title, it was
incumbent upon the plaintiffs to have produced the prior title deed in
order to sustain their claim. It is in this context, that the
defendants/appellants endeavoured to produce the said document
before the Appellate Court.
13. Still further, a reading of Clause 1(b) of Rule 27 to Order
XLl of the CPC, specifically makes it clear that the Appellate Court is
empowered to received the document in order to enable it to
pronounce the judgment. In the light of the specific plea of the
appellant that title of the plaintiff on the plaint schedule property
cannot be established in the absence of the prior title, it was all the
more incumbent upon the Appellate Court to have accepted the
additional evidence produced before it, in order to arrive at a just and
fair conclusion.
14. Having found that the First Appellate Court erred
egregiously in rejecting the additional evidence produced by the
appellants, the resultant question would be whether this Court should
go into the other question raised on behalf of the appellants. As
stated aforesaid, since the only question of law that was framed by
this Court while admitting the appeal is regarding the sustainability of
the order passed by the First Appellate Court in rejecting
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I.A.No.1620/2018 under Order XLl Rule 27, this Court is of the
considered view that, at this stage, it may not be possible for this
Court to go into both factual and legal issues raised on behalf of the
appellants. Inevitably, the matter requires reconsideration at the
hands of First Appellate Court.
15. Resultantly, the appellants are entitled to succeed. The
question of law as framed by this Court is answered in favour of the
appellants and it is held that the First Appellate Court erred in
dismissing I.A.NO.1620/2018 and consequently, the judgment
dismissing the appeal is also vitiated. In the aforesaid circumstances,
the present appeal is allowed by setting aside order dated 31.08.2019
in I.A.No.1620/2018 in A.S.NO.49/2006 and also the judgment and
decree dated 31.08.2019 in A.S.No.49/2006. Consequently,
I.A.No.1620/2018 in A.S.No.49/2006 stands allowed. The Additional
District Court - III, Thalassery is directed to mark Document
No.1247/1890 in evidence.
16. The regular second appeal is thus allowed by way of
remand by setting aside the judgment and decree in A.S.No.49/2006
of the Additonal District Court - III, Thalassery. The District Court
shall consider the appeal afresh in accordance with law after
considering the evidence on record including Document
No.1247/1890.
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17. In order to enable the Additional District Court - III,
Thalassery, to proceed with the appeal, the parties are directed to
mark their appearance before the District Court, Thalassery, on
18.06.2025. The Registry is directed to transmit the records
forthwith. Till such time the appeal is heard by the District Court,
Thalassery, the order of status quo passed in I.A.No.320/2006 in the
A.S.No.49/2006 shall continue.
Sd/-
EASWARAN S.
JUDGE
ACR
