SULOCHANA PETER Vs. CHELLAMMA SWARNAMMA

JUDGEMENT

(1.) The above appeal has been filed by the additional 5th Defendant in O.S. No. 395/87 on the file of the Munsiffs Court, Attingal. That suit was one for declaration and partition filed by the 3rd Respondent as Plaintiff. That suit was tried along with another suit, O.S. No. 146/91 filed by the present Appellant as Plaintiff in which a decree of injunction was claimed. Though the Appellant herein was not made a party in O.S. No. 395/87, she got herself impleaded as additional 5th Defendant and resisted the suit claim for declaration and partition. In the two suits identical issues arose for adjudication and a joint trial of the cases was proceeded with. Suffice to state, after trial, on the materials placed by both sides, a decree was granted in O.S. No. 395/87 declaring one half right of the Plaintiff (3rd Respondent in the present appeal) over the plaint property, allowing him to have separate possession of his share moving an application for passing a final decree. Suit filed by the Appellant as Plaintiff (O.S. No. 146/91) for a decree of injunction, was dismissed under the common judgment rendered by the trial court, disposing the two suits. As against the dismissal of her suit O.S. No. 146/91, the present Appellant preferred an appeal as A.S. No. 37/94 before the Sub Court, Attingal. She did not challenge the decree granted in favour of the 3rd Respondent in the appeal, Plaintiff in O.S. No. 395/87. However, two other Defendants in the above suit filed an appeal impeaching the decree granted in O.S. No. 395/87, as A.S. No. 1/94 before the Sub Court, Attingal. In that appeal (A.S. No. 1/94) the present Appellant was the 3rd Respondent. Receiving notice in such appeal, 3rd Respondent in A.S. No. 1/94 (the present Appellant) preferred cross objections impeaching the decree granted to the Plaintiff, who was a co-Respondent in such appeal with her. Cross objections so filed in A.S. No. 1/94, was numbered as I.A. No. 664/94 in the above appeal. The appeals, A.S. No. 1/94 arising from the decree passed in O.S. No. 395/87 and A.S. No. 37/94 from O.S. No. 146/91, both of them, after being heard together, were disposed by the lower appellate court dismissing both the appeals, by which the decree passed in O.S. No. 395/87 in favour of the Plaintiff in that suit was confirmed and the dismissal of O.S. No. 146/91, the suit filed by the Appellant as Plaintiff was upheld. As against the concurrent decision rendered by both the courts below negativing the claim of the present Appellant in her suit O.S. No. 146/91 declining her the relief of decree of injunction applied for, she has filed the second appeal R.S.A. No. 477/03, which after being admitted awaits disposal. As against the dismissal of A.S. No. 1/94 confirming the decree passed in O.S. No. 395/87, the above Appellant, who was the 5th Defendant in the suit and the 3rd Respondent in that appeal before the lower appellate court has filed the appeal, S.A. No. 354/03.

(2.) This appeal, which was preferred with a petition for condonation of delay had been previously dismissed for default, but, later restored to file. Thereafter delay in filing the appeal, with notice to Respondents, having been condoned, the appeal has come up for consideration.

(3.) The entertainability of the appeal was canvassed with reference to R.S.A. No. 477/03 preferred by the same Appellant against the decision rendered by the lower appellate court confirming the decree passed in O.S. No. 146/91, which had already been admitted to file. The present Appellant/additional 5th Defendant in O.S. No. 395/87, admittedly, had not challenged the decree passed in that suit preferring an appeal before the lower appellate court. A second appeal at her instance over the dismissal of an appeal preferred by some other Defendants by which the decree granted to the Plaintiff was confirmed, is prima facie not entertainable. However, the learned Counsel for the Appellant submitting that cross objections preferred by her in A.S. No. 1/94 arising from the decree in O.S. No. 395/87, after being numbered and received on file, were not considered by the lower appellate court while rendering the common judgment in A.S. No. 1/94 and A.S. No. 37/94 contended that the Appellant has a valid legal right to impeach the correctness of the judgments of the courts below, and the present appeal, after being admitted, therefore, deserve to be disposed of on merits along with R.S.A. No. 477/03 already admitted.