Kerala High Court
Malleswaran vs M.Selva Lekshmi on 5 March, 2026
R.S.A. No.1308 of 2012 1 2026:KER:19912
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 5TH DAY OF MARCH 2026 / 14TH PHALGUNA, 1947
RSA NO. 1308 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 20.6.2012 IN A.S. NO.58
OF 2008 OF SUB COURT, OTTAPPALAM ARISING OUT OF THE JUDGMENT AND
DECREE DATED 25.2.2008 IN O.S. NO.2 OF 2006 OF MUNSIFF MAGISTRATE
COURT, MANNARKAD
APPELLANT/APPELLANT/1ST DEFENDANT:
MALLESWARAN, AGED 46 YEARS
S/O.PACHA KAUNDER,KAVUNDICKAL AREA,
VYDIER COLONY,AGALY VILLAGE AND POST,
MANNARAKKAD TALUK,PALAKKAD DISTRICT.
BY ADVS. SHRI.P.B.KRISHNAN (SR.)
SRI.R.SREEHARI
RESPONDENTS/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT :
1 M.SELVA LEKSHMI,
AGED 38 YEARS, W/O.MAHALINGAM,
KOTTAMEDU, AGALY POST & VILLAGE,
MANNARKKAD TALUK, PALAKKAD DISTRICT,
PIN-678581.
2 PARVATHY,
W/O.NAGARAJ, KARACHI MARAKKAD,
BOOTHY VAZHY, AGALY POST & VILLAGE,
MANNARKKAD TALUK, PALAKKAD DISTRICT,
PIN:678581.
BY ADV SMT.T.B.MINI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
05.03.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No.1308 of 2012 2 2026:KER:19912
EASWARAN S., J.
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R.S.A. No.1308 of 2012
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Dated this the 5th day of March, 2026
JUDGMENT
This appeal arises out of the judgment and decree in O.S. No.2 of 2006 on the files of the Munsiff Magistrate Court, Mannarkkad, as affirmed in A.S. No.58 of 2008 on the files of the Sub Court, Ottapalam. Though the result is concurrent, the findings, to some extent, are divergent.
2. The brief facts necessary for the disposal of the appeal are as follows:
2.1. The plaintiff instituted the suit, O.S. No.2 of 2006, for declaration of title and cancellation of a preliminary decree passed in O.S. No.24 of 2004 by the Munsiff Magistrate Court, Mannarkkad, contending that the same is not binding upon her. The plaintiff raised her title as follows:
2.2. One Subbayya Kounder had various extents of property covered by Ext.A2 purchase certificate. He was survived by his son Pacha Kounder. Though the said fact is disputed by the appellants herein, for the R.S.A. No.1308 of 2012 3 2026:KER:19912 purpose of considering the appeal, it may not be relevant. Pacha Kounder was survived by two sons, namely, Narayana Swami and Viswanathan and in the year 1976, he settled the property having an extent of 2.65 Acres in their favour. They, in turn, transferred the property to one Rengaswamy Kounder, who was survived by three legal heirs, Mariamma, Kanakeswari and Mahalingam. Mariyamma and Mahalingam released their 2/3rd right over the property in favour of Kanakeswari, and thus Kanakeswari became the absolute owner of an extent of property covered in Survey No.705/6, which in turn is one of the properties included in the purchase certificate in the name of Subbayya Kounder (Ext.A2). Kanakeswari, in turn, transferred the property to the plaintiff on 10.8.2000. In the meantime, O.S. No.24 of 2004 was instituted by the 1st defendant against the 2nd defendant, claiming to be the legal heirs of Subbayya Kounder in respect of the property covered under Survey Nos.705/6 and 705/2 and 4. On 22.3.2004, a preliminary decree was passed for partition of the property having an extent of 2 Acres 37 Cents in Survey No.705/6 and an extent of 43 cents in Survey No.705/2 and 4. Tracing the title to the plaint schedule property, which in turn is shown in item No.1 of the schedule to the preliminary decree to O.S. No.24 of 2004, the plaintiff contended that the preliminary decree is not binding upon her since she was not a party to the proceedings and she has a paramount title. The trial court, after R.S.A. No.1308 of 2012 4 2026:KER:19912 appreciation of the oral and documentary evidence, decreed the suit.
Aggrieved, the 1st defendant alone preferred A.S. No.58 of 2008 before the Sub Court, Ottappalam. Interestingly, the first appellate court allowed the appeal in part by setting aside the relief of declaration sought by the plaintiff that she is the exclusive owner of the property. But the decree granting the relief of setting aside the preliminary decree in O.S. No.24 of 2004 was confirmed. While doing so, certain observations touching upon the paternity of the defendants were found against them. Hence the present appeal.
3. On 14.1.2026, this Court admitted the appeal on the substantial questions of law framed in the memorandum of appeal, which reads as under :
(1) Whether the courts below are justified in holding an adjudication regarding the paternity of the defendants especially when the documents Exhibits B2 to B4 proved that the Defendants 1 and 2 are the children of Subbayya Gounder?
(2) Whether the Lower Appellate Court was justified in allowing the Appeal in part, retaining the relief of setting aside the Preliminary Decree passed by the Munsiff-
Magistrate Court, Mannarkkad in O.S. No.24/2004, R.S.A. No.1308 of 2012 5 2026:KER:19912 considering the peculiar facts, circumstances and evidence available on record?
(3) Whether the Courts below are justified in holding that the preliminary Decree passed in O.S. No.24/2004 of Munsiff- Magistrate Court, Mannarkkad was an adjustment and flout to grasp the plaint schedule property overlooking Exhibits B2 to B4 ?
4. Heard Sri. R. Sreehari, the learned counsel appearing for the appellant. Though the service was completed, none appeared on behalf of the respondents.
5. Sri. R Sreehari, the learned counsel appearing for the appellant, contended that even assuming that the judgment of the first appellate court is sustained as such, the latter part of the judgment by which the setting aside of the preliminary decree was confirmed cannot be sustained inasmuch as the preliminary decree in O.S. No.24 of 2004 consists of two items. An extent of 2.37 Acres in survey No.705/6 and an extent of 43 cents in survey Nos.705/2 and 705/4. Since the plaintiff had claimed only exclusive title to the property covered under Survey No.705/6 it was wholly impermissible for the first appellate court to have dismissed the appeal in its entirety. It is his further case that the question of paternity of R.S.A. No.1308 of 2012 6 2026:KER:19912 the defendants was not an issue before the trial court, and therefore, the same ought not have been gone into by the first appellate court.
6. On consideration of the submissions raised by the appellant, this Court finds that the appellant is entitled to succeed. A perusal of the schedule to the decree in O.S. No.24 of 2004 [Ext.A14 (a)] shows that it has two items. Item No.1 consists of 2.37 Acres in survey No.705/6, and item No.2 consists of 43 cents in survey Nos.705/2 and 705/4. Turning to the schedule of the plaint in the present case would show that the claim of the plaintiff is confined to the property covered in survey No.705/6. Therefore, the courts below erred egregiously in interfering with the preliminary decree passed in O.S. No.24 of 2004 to the extent of the property covered in item No.2.
7. Coming to the question as to whether the first appellate court could have gone into the issue of paternity, this Court finds considerable force in the submissions of the learned counsel for the appellant that in the absence of any issue regarding the paternity and also in the absence of the other legal heirs of late Subbayya Kounder, the finding was uncalled for and was not necessary in the context of the claim of the plaintiff which is confined to the property covered under survey No.705/6.
8. In such circumstances, this Court is inclined to answer the substantial questions of law in favour of the appellant as follows:
R.S.A. No.1308 of 2012 7 2026:KER:19912 (1). The first appellate court went wrong in adjudicating the question of paternity of the defendants in the light of the Exts.B2 and B4 documents.
(2 & 3). The first appellate court was not justified in affirming the relief of setting aside the preliminary decree, especially since the plaintiff had no claim to the property covered under survey No.705/2 and 4.
9. Accordingly, this appeal is allowed by reversing the judgment and decree in A.S. No.58 of 2008, which affirmed the Judgment and decree in O.S. No 24 of 2004. The judgment and decree in O.S. No.2 of 2006 on the files of the Munsiff Magistrate Court, Mannarkkad, is modified, and the plaintiff will be granted a decree confined to the decree schedule item No.1 of O.S. No.24 of 2004. The prayer qua item No.2 stands dismissed. The findings rendered by the first appellate court on the paternity of the defendants are hereby vacated. Parties shall bear their cost.
Ordered accordingly.
Sd/-
EASWARAN S. JUDGE NS