IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 235 of 1996(C)
1. PADMAVATHY AMMA
... Petitioner
Vs
1. PANKAJAKSHI AMMA
... Respondent
For Petitioner :SRI.M.RAJASEKHARAN NAYAR
For Respondent :SRI.G.S.REGHUNATH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/01/2010
O R D E R
M.Sasidharan Nambiar, J.
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S.A.No.235 of 1996
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JUDGMENT
Plaintiff in O.S.No.751/1987 on the file of
Principal Munsiff’s Court, Neyyattinkara is the
appellant. Defendants are the respondents.
Appellant instituted the suit seeking a decree for
declaration of title, possession and permanent
prohibitory injunction and also for putting up the
boundary.
2. Plaint schedule property is twenty six cents
in Sy.No.636/1C of Perumkadavila Village of
Neyyattinkara Taluk, which is described as plot
MNPOEB, as marked in Exhibit A3(a) plan in O.S.No.
292/1965 on the file of Principal Munsiff’s Court,
Neyyattinkara. Appellant claims right, title and
possession over the property under Exhibit A1 sale
deed dated 2.3.1965. It is contended that
immediately after the purchase of the property,
Ramakrishna Pillai, the predecessor in interest of
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the respondents, instituted O.S.No.292/1965 seeking
a decree for declaration that there is no property
as described in plaint D schedule therein, which is
claimed as part of the property covered by Exhibit
A1 sale deed herein and therefore, appellant has no
right or title over the said property. When that
suit was pending, Ramakrishna Pillai died and the
respondents, being the widow and children, got
themselves impleaded as additional plaintiffs. By
Exhibit A2 judgment dated 10.8.1973, learned
Munsiff dismissed the suit finding that plot MNPOEB
is in the possession of the first defendant and
respondents have no right or title over that
property. It was contended by the appellant in the
plaint that even after the said judgment,
respondents are attempting to trespass into the
property and they are to be restrained by a
permanent injunction and title of the appellant is
to be declared and she is to be permitted to put up
a boundary.
SA 235/96 3
3. Only the first respondent resisted the suit.
First respondent contended that Exhibit A1 sale
deed is ab initio void, as there is no property
lying adjacent to the property of the first
respondent and first respondent is not a party to
O.S.No.292/1965. She was not aware of the said suit
and the judgment and decree in that suit are not
binding on her. Though first respondent was aged
twenty years on 30.3.1973, when the legal heirs in
O.S.No.292/1965 were impleaded, first respondent
was shown as a minor represented by the mother and
as appellant was not impleaded as a major in the
suit, the judgment and decree are not binding on
her and appellant is, therefore, not entitled to
the decree as prayed for.
4. Learned Munsiff framed the necessary issues.
On the side of the appellant, Exhibits A1 to A4(a)
were marked and on the side of the first
respondent, Exhibit B1 was marked.
SA 235/96 4
5. Learned Munsiff found that O.S.No.292/1965
was filed by Ramakrishna Pillai, under whom
respondents claim right and title over the
property. In O.S.No.292/1965, the court, after
recording the evidence, found that plaint D
schedule property therein, which is the plaint
schedule property herein, belongs to the appellant
herein and plaintiffs in O.S.No.292/1965 have no
right over the same. Though first respondent
contended that she was impleaded as a minor
represented by the mother, when, in fact, she was a
major, no material was produced to substantiate
that case. Exhibit A2 judgment does not show that
first respondent was impleaded as a minor. Learned
Munsiff, based on Exhibit A2 judgment, granted a
decree in favour of the appellant.
6. First respondent challenged that judgment
and decree before District Court, Thiruvananthapuram
in A.S.No.295/1989. Learned Additional District
Judge received copy of the decree in O.S.No.
SA 235/96 5
292/1965 as an additional evidence under Order XLI
Rule 27 of Code of Civil Procedure and held that
first respondent was impleaded as a minor
represented by the mother and Exhibit B1 SSLC Book
shows that on the date, when she was impleaded,
she was aged nineteen years and five months and
therefore, she is not a minor. Relying on the
decision of the Apex Court in Chengalvaraya Naidu
v. Jagannath (AIR 1994 SC 753), learned Additional
District Judge found that as the decree was
obtained showing first respondent as a minor, when,
in fact, she was a major, the decree is to be
treated as a nullity, as it is the result of fraud
and therefore, Exhibit A2 judgment is not binding
on the first respondent and hence, the decree
granted, based on Exhibit A2 judgment, is
unsustainable. Appeal was allowed and the suit was
dismissed. It is challenged in this second appeal.
7. Second Appeal was admitted and notice was
issued formulating the following substantial
SA 235/96 6
questions of law:
1. Was the court below justified in finding that
first respondent was a major on the basis of the
materials which were not part of the evidence in
the case and in such circumstances, is not the
lower appellate court acted on extraneous
consideration and irrelevant considerations?
2. Exhibit A2, the suit was filed by the father
of the first respondent and after his death,
application to implead the legal heirs were filed by
the mother and children and in such circumstances,
is not Exhibit A2 judgment binding on the first
respondent and whether finding of the first
appellate court that it is not binding is not illegal?
3. When the application is filed under Order
XXII Rule 3 of Code of Civil Procedure by the
legal heirs to get themselves impleaded, are they
entitled to contend that the decree is invalid?
8. Learned counsel appearing for the appellant
and first respondent were heard.
9. Appellant is claiming title over the plaint
schedule property under Exhibit A1 sale deed. Suit
is filed for declaration of title, possession and
fixation of boundary and for permanent prohibitory
injunction. Only the first respondent, the original
second defendant, contested the suit. Defence is
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that Exhibit A10 is ab initio void, as there is no
property as described in Exhibit A1 and therefore,
appellant is not entitled to a decree as prayed
for. In the plaint itself, appellant contended that
father of the first respondent had filed O.S.No.
292/1965 contending that there is no property as
claimed by the appellant under Exhibit A1 and a
decree for declaration to that effect was sought.
By Exhibit A2 judgment, the suit was dismissed.
Exhibit A2 judgment shows that suit was dismissed
after recording the evidence and based on Exhibit
A3(a) plan, where under the property covered by
Exhibit A1 was identified as plot MNPOEB in Sy.No.
636/1C. Though that suit was filed by Ramakrishna
Pillai, Exhibit A2 judgment itself shows that when
the suit was pending, Ramakrishna Pillai died and
his widow and children filed I.A.No.460/1973 under
Order XXII Rule 3 of Code of Civil Procedure to get
themselves impleaded as additional plaintiffs to
prosecute the suit further. As per order dated
SA 235/96 8
30.3.1973, they were impleaded as additional
plaintiffs 2 to 7. Though learned Munsiff, based on
Exhibit A2 judgment, found that case of the first
respondent that she was a major on 30.3.1973 and
she was impleaded as a minor represented by the
mother is not proved, learned Additional District
Judge, based on the decree produced at the
appellate stage, found that first respondent was
impleaded as a minor represented by the mother.
But, learned Additional District Judge, ignoring
the fact that it was a suit instituted by the
father of the first respondent and on his death,
the mother, along with the children, filed an
application to get themselves impleaded and got
themselves impleaded as additional plaintiffs and
contested the suit, held that as first respondent
was a major and was impleaded as a minor, the
decree is a nullity because it is vitiated by
fraud. It is not known how Exhibit A2 judgment and
decree could be termed as vitiated by fraud, when
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it was the mother of the first respondent, who
filed the application for impleading herself and
her children, representing that her daughter, the
first respondent, as a minor. It is to be bone in
mind that when the plaintiff died, additional
plaintiffs, his widow and children, got themselves
impleaded and contested the suit. Even if first
respondent was a major and was wrongly shown as a
minor, it cannot be said that the judgment and
decree is vitiated by fraud because there was
substantial representation of all the legal heirs
by the mother. Exhibit A2 judgment establishes that
mother had contested the suit and even the original
plaintiff was examined as PW3 and five witnesses
were altogether examined on the side of the
plaintiffs. It is based on the said evidence, after
the suit was contested by the legal heirs of the
original plaintiff, the suit was dismissed by
Exhibit A2 judgment. When the appellant cannot be
found fault for impleading the first respondent as
SA 235/96 10
a minor and that application was filed by the widow
of the plaintiff in O.S.No.292/1965 and she
contested the suit thereafter, it cannot be said
that Exhibit A2 judgment is vitiated by fraud.
Therefore, Exhibit A2 judgment is binding on the
additional plaintiffs, including the first
respondent herein, so long as she has not
challenged the judgment. If that be so, learned
Additional District Judge grossly erred in setting
aside the judgment of the learned Munsiff.
10. By Exhibit A2 judgment, learned Munsiff had
already found that the property obtained by the
appellant under Exhibit A1 is plot MNPOEB and it
has been in the possession of the appellant. The
only contention raised by the first respondent is
that there is no property as described in Exhibit
A1 and therefore, the suit is not maintainable.
When it is already found in the suit, instituted by
the father of the first respondent and continued
after the death of the father by the widow and
SA 235/96 11
children, that the property covered by Exhibit A1
is plot MNPOEB, as demarcated by the Commissioner
in Exhibit A3(a) plan, appellant is entitled to a
decree declaring his title and possession over the
said property on the strength of Exhibit A1. She is
also entitled to get a decree for putting up
boundary as has been granted by the learned
Munsiff. The judgment and decree passed by the
learned District Judge are illegal and can only be
set aside.
Appeal is allowed. Judgment and decree passed
by Additional District Judge, Thiruvananthapuram in
A.S.No.295/1989 is set aside. The judgment and
decree passed by Principal Munsiff, Neyyattinkara
in O.S.No.751/1987 is restored. Appellant is
entitled to her costs.
28th January, 2010 (M.Sasidharan Nambiar, Judge)
tkv
SA 235/96 12
M.Sasidharan Nambiar, J.
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S.A.No.235 of 1996
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JUDGMENT
28th January, 2010