Back
2019 Supreme(Online)(KER) 1087
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941
SA.No. 798 of 2000 (C)
AGAINST THE DECREE AND JUDGMENT DATED 15.01.2000 IN AS No.17/1997
of SUB COURT, HOSDRUG
AGAINST THE DECREE AND JUDGMENT DATED 27.11.1996 IN OS No.289/1994
of MUNSIFF COURT, HOSDRUG
APPELLANTS IN SA/RESPONDENTS 1 TO 3 IN THE LOWER APPELLATE
COURT/PLAINTIFFS IN SUIT:
1
NARAYANAN, S/o GOVINDAN,
RESIDING AT ERAMAM KIZHAKKEKKARA,
ERAMAM AMSOM DESOM, TALIPARAMBA TALUK,
P.O. ERAMAM.
2
PARU, D/o KUNHATHI,
RESIDING IN -DO-. (DIED, LRs IMPLEADED)
3
MATHI, D/o -DO- RESIDING AT KUTTUR,
KUTTUR AMSOM DESOM, TALIPARAMBA TALUK, P.O. KUTTUR.
ADDITIONAL APPELLANTS
4
SHYAMALA K., AGED 53 YEARS
W/o LATE LAKSHMANAN, ANJANAPUZHA,
P.O. KUTTUR, KANNUR DISTRICT.
5
MANJU, AGED 30 YEARS,
D/o LATE LAKSHMANAN, ANJANAPUZHA,
P.O. KUTTUR, KANNUR DISTRICT.
6
RANJU, AGED 24 YEARS
D/o LATE LAKSHMANAN, ANJANAPUZHA,
P.O. KUTTUR, KANNUR DISTRICT.
7
KALYANI, AGED 50 YEARS
D/o LATE PARU, VALLUVACHERY,
P.O. KUTTUR, KANNUR DISTRICT.
8
YESODA, AGED 45 YEARS
D/o LATE PARU, VALLUVACHERY,
P.O. KUTTUR, KANNUR DISTRICT.
(LEGAL HEIRS OF DECEASED 2ND APPELLANT ARE IMPLEADED
AS ADDITIONAL APPELLANTS 4 TO 8 AS PER ORDER DATED
19/02/2019 IN IA 1/19)
S.A.No.798 of 2000
2
BY ADV. SRI.M.V.AMARESAN
RESPONDENTS 1 TO 6 IN S.A./APPELLANTS IN THE LOWER APPELLATE
COURT/DEFENDANTS 9 & 14 TO 18 IN THE SUIT:
1
VALIYA KUNNEL KUMBHA ALIAS PARU, (DIED)
D/o CHERIYA KORAN,
RESIDING AT PADINHAREPARAMBIL,
SOUTH TRIKARIPUR VILLAGE, HOSDURG TALUK,
P.O. ELAMBACHY.
2
VIJAYAN, S/o VALIYA KUNNEL KUMBHA ALIAS PARU,
IN DO. DO.
3
LEELA, D/o DO. RESIDING AT MEELIYAT,
TRIKARIPUR VILLAGE, HOSDURG TALUK,
P.O. TRIKARIPUR.
4
INDIRA, D/o DO. RESIDING AT PADINHAREPARAMBIL,
SOUTH TRIKARIPUR VILLAGE, HOSDURG TALUK,
P.O. ELAMBACHY.
5
VANAJA, D/o DO. RESIDING AT KUNNERU,
NEAR NAVAL ACADAMY, TALIPARAMBA TALUK,
P.O. RAMANTHALI.
(RESPONDENTS 2 TO 5 ARE RECORDED AS LEGAL
REPRESENTATIVES OF DECEASED RESPONDENTS 1 AND 6 AS
PER ORDER DATED 08/07/2009 IN MEMO CF 1767 AND
1768/2009.)
6
UNNIKRIHNAN, (DIED)
S/o DO. RESIDING AT PADINHAREPARAMBIL,
SOUTH TRIKARIPUR VILLAGE, HOSDURG TALUK,
P.O. ELAMBACHY.
7
AMBU, S/o MATHI,
RESIDING AT ERAMAM CENTRE, ERMAM AMSOM DESOM,
TALIPARAMBA TALUK. (DIED, LEGAL REP. IMPLEADED)
8
CHEMMARATHY, D/o DO.
RESIDING AT THOWDASSERY, THODASSERY AMSOM DESOM,
TALIPARAMBA TALUK, P.O. PORAKKUNNU.
(DIED, LEGAL HEIRS IMPLEADED)
9
PARU, D/o DO. RESIDING IN DO. DO.
10
YESHODA, D/o DO. RESIDING IN DO. DO.
S.A.No.798 of 2000
3
11
SREEDEVI, D/o DO. RESIDING IN DO. DO.
12
SHARADA, WIDOW OF KANNAN, RESIDING DO. DO.
13
ANITHA, D/o SHARADA, IN DO. DO.
14
ANISH, S/o DO. IN DO. DO.
15
PAYYANNOORKKARAN RAGHAVAN, S/o KOTTAN,
TAILOR, RESIDING AT MEELIYAT IN TRIKARIPUR VILLAGE,
HOSDURG TALUK, P.O. TRIKARIPUR.
16
VANIYAN VALAPPIL KRISHNAN, S/o KUNHAMBU,
RESIDING AT ELAMBACHY, SOUTH TRIKARIPUR VILLAGE,
HOSDURG TALUK, P.O. ELAMBACHY.
(DIED, LEHAL HEIRS IMPLEADED)
17
KALLAMBALLI YESHODA, D/o KUNHAPPU,
RESIDING AT ELAMBACHY, SOUTH TRIKARIPUR VILLAGE,
HOSDURG TALUK, P.O. ELAMBACHY.
18
KALLAMBALLI NARAYANAN, S/o DO. IN DO. DO.
ADDITIONAL RESPONDENTS
19
KAMALA E., AGED 60 YEARS, D/o LATE AMBU,
RESIDING AT THAVVARA, P.O. PORAKKUNNU,
(VIA) MATHAMANGALAM BAZAR,
KANNUR DISTRICT, PIN -670306.
20
KUNHIKANNAN E., AGED 58 YEARS, S/o LATE AMBU,
RESIDING AT THAVVARA, P.O. PORAKKUNNU,
(VIA) MATHAMANGALAM BAZAR, KANNUR DISTRICT,
PIN -670306.
21
KARTHIYANI E., AGED 56 YEARS, D/o LATE AMBU,
RESIDING AT THAVVARA, P.O. PORAKKUNNU,
(VIA) MATHAMANGALAM BAZAR,
KANNUR DISTRICT, PIN -670306.
22
KUSHALA E., AGED 54 YEARS, D/o LATE AMBU,
RESIDING AT THAVVARA, P.O. PORAKKUNNU,
(VIA) MATHAMANGALAM BAZAR,
KANNUR DISTRICT, PIN -670306.
23
LALITHA E., AGED 52 YEARS, D/o LATE AMBU,
RESIDING AT THAVVARA, P.O. PORAKKUNNU,
(VIA) MATHAMANGALAM BAZAR,
KANNUR DISTRICT, PIN -670306.
S.A.No.798 of 2000
4
24
LAKSHMI, D/o LATE CHEMMARATHI, AGED 64 YEARS,
VALLUVACHERI, CHALIL, P.O. OLAYAMBADI,
KANNUR DISTRICT, PIN - 670306.
25
KRISHNAN, S/o LATE CHEMMARATHI, AGED 62 YEARS,
VALLUVACHERI, THAVIDISSERY, P.O. PORAKKUNNU,
KANNUR DISTRICT, PIN-670306.
26
THANKAMANI, D/o LATE CHEMMARATHI, AGED 54YEARS,
VALLUVACHERI, THAVIDISSERY, P.O. PORAKKUNNU,
KANNUR DISTRICT, PIN -670306.
27
JANAKI, D/o LATE CHEMMARATHI, AGED 52 YEARS,
VALLUVACHERI, PERINTHATTA, P.O. PORAKKUNNU,
KANNUR DISTRICT, PIN-670306.
28
NARAYANAN, S/o LATE CHEMMARATHI, AGED 48 YEARS,
VALLUVACHERI, PERINTHATTA, P.O. PORAKKUNNU,
KANNUR DISTRICT, PIN-670306.
29
KAMALAKSHAN, S/o LATE CHEMMARATHI, AGED 46 YEARS,
VALLUVACHERI, PERINTHATTA, P.O. PORAKKUNNU,
KANNUR DISTRICT, PIN -670306.
30
LAKSHMANAN, S/o LATE CHEMMARATHI, AGED 44 YEARS,
VALLUVACHERI, PERINTHATTA, P.O. PORAKKUNNU,
KANNUR DISTRICT, PIN-670306.
31
UNNIKOD THAMBAI, W/o LATE V.V. KRISHNAN,
AGED 68 YEARS, RESIDING AT ELAMBACHI,
SOUTH TRIKARPUR, KASARAGOD DISTRICT, PIN -671311.
32
BHARGAVAN, S/o LATE V.V. KRISHNAN, AGED 44 YEARS,
RESIDING AT ELAMBACHI, SOUTH TRIKARPUR,
KASARAGOD DISTRICT, PIN-671311.
33
SREENIVASAN, S/o LATE V.V. KRISHNAN, AGED 42 YEARS,
RESIDING AT ELAMBACHI, SOUTH TRIKARPUR,
KASARAGOD DISTRICT, PIN -671311.
34
SREEJA, D/o LATE V.V. KRISHNAN, AGED 39 YEARS,
RESIDING AT ELAMBACHI, SOUTH TRIKARPUR,
KASARAGOD DISTRICT, PIN-671311.
35
SANTHA, D/o LATE V.V. KRISHNAN, AGED 36 YEARS,
RESIDING AT ELAMBACHI, SOUTH TRIKARPUR,
KASARAGOD DISTRICT, PIN-671311.
S.A.No.798 of 2000
5
36
RAGHAVAN, AGED 48 YEARS,
S/o LATE KALLAMBALLI YESODA,
KALLAMBALLI HOUSE, ELAMBACHI,
SOUTH TRIKARPUR, KASARAGOD DISTRICT, PIN -671311.
(LEGAL HEIRS OF DECEASED 7TH RESPONDENT ARE
IMPLEADED AS ADDITIONAL R19 TO R23. LEGAL HEIRS OF
DECEASED R8 ARE IMPLEADED AS ADDITIONAL R24 TO R30.
LEGAL HEIRS OF DECEASED R16 ARE IMPLEADED AS
ADDITIONAL R31 TO R35 AND LEGAL HEIRS OF DECEASED
R17 IS IMPLEADED AS ADDITIONAL R36 AS PER ORDER
DATED 07/03/2019 IN IA'S 6/2019, IA 9/2019, IA
12/2019 AND IA 15/2019 RESPECTIVELY.)
BY ADVS.SRI.V.R.KESAVA KAIMAL FOR R2 TO R5
SRI.R.SURAJ KUMAR FOR R7 TO R14
SRI.T.P.ELDHOSE FOR R15
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.04.2019. THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
S.A.No.798 of 2000
6
A suit for partition ended in a decree in the Trial
Court, but in appeal it was reversed. Aggrieved by the said
decree and judgment, the plaintiffs came up with this
appeal.
2. The property involved in the suit originally
belonged to Thazhakkat Mana. There are two items jointly
held by Koran and Chemmarathi and others. Chemmarathi and
others assigned a right in favour of Cheriya Koran and
Kunhappu. Thereafter Koran and Cheriya Koran conveyed a
leasehold right to Kunhathi and Mathi under Ext.A1 of the
year 1125 ME, more specifically on 09.05.1925. Plaintiffs
are the legal heirs of Kunhathi. Mathi and Kunhappu died.
Their legal heirs were respectively impleaded as D1 to D5,
D6 to D8, D12 and D13 in the suit. The ninth defendant in
this suit is the daughter of original lessee Koran. She
had obtained jenm right over the property under Exts.B1 and
B2, dated 06.09.1954 and 25.07.1963 respectively from
Thazhakkat Mana. Hence, the suit for partition.
7
3. The question came up for consideration in this
appeal is whether it is permissible for the First Appellate
Court to admit, accept and to act upon additional evidence
brought under Order 41 Rule 27 CPC without affording an
opportunity to the opposite party to challenge the same and
to show its evidenciary value.
4. Ext.A1 is the deed in which the plaintiffs are
claiming their right over the property. But under Ext.A1
what is conveyed is only a leasehold right, not the title
of the property. D9 has already obtained title to the
property by virtue of Exts.B1 and B2. Of course by the
commencement of Kerala Land Reforms Act, 1963, Act 1 of
1964, jenm right would vest with the government in so far
as the benefits conferred under the provisions of the said
Act are concerned. But no benefits conferred by the
provisions of the said Act either claimed or raised and no
reference was made under Section 125 of the Kerala Land
Reforms Act and as such the plaintiffs cannot claim that
they are having title over the property by virtue of the
assignment of lease under Ext.A1.
5. It is inter alia brought to the notice of this
Court that certain documents were produced at the First
Appellate stage, which were accepted and acted upon by the
8
First Appellate Court in support of its decision reversing
the decree and judgment of the Trial Court, that too
without affording an opportunity to the opposite party to
explain the evidenciary value of those document or to
challenge the same. It is not at all advisable for the
First Appellate Court to act upon the document produced
under Order 41 Rule 27 CPC without affording an opportunity
to the opposite party to challenge its genuineness or to
show its evidenciary value. Hence, the jurisdiction vested
with the First Appellate Court has not been exercised in
its correct perspective, liable to be interfered as it is a
substantial question for the purpose of this appeal and the
matter is remanded back to the Trial Court for the purpose
of enabling the opposite party to challenge the document or
its evidenciary value brought under Order 41 Rule 27 CPC.
Hence, the appeal is allowed in part. The decree and
judgment of both the Trial Court and the First Appellate
Court are set aside. The matter is remanded back to the
Trial Court for the purpose of enabling the opposite party
to challenge and show the evidenciary value of documents
which were brought under Order 41 Rule 27 CPC and to have
an early disposal of the matter afresh untramelled by any
of the observations contained in the impugned order as well
9
as this order. The parties shall appear before the Trial
Court on 20.06.2019.
The appeal is allowed in part accordingly. No order as
to cost of appeal.
Sd/-
P.SOMARAJAN
DMR/-
JUDGE
