SIVANANTHAN Vs. KUNJUKRISHNAN PANICKER

JUDGEMENT

(1.) The 84th defendant in O.S.No.389 of 1979 on the file of the Principal District Munsif Court, Kuzhithurai is the appellant herein.

(2.) One Thai filed O.S.No.389 of 1979 before the District Munsif Court, Kuzhithurai for the relief of partition and separate possession of her share. The said suit was decreed by the trial Court granting 1/4th share in favour of the plaintiff in the first schedule property and also directing the defendants 4 to 11 to remove their house property in the first schedule property and hand over the vacant possession to the plaintiff and the first defendant. Challenging the said judgment and decree, A.S.No.62 of 1995 was filed by the defendants 12 to 14, 43 to 45 and 47th defendant. The 84th defendant also filed a cross objection. While the appeal was pending, the appellants have chosen to withdraw the appeal. After the appeal was withdrawn, the 84th defendant who had filed the cross objection insisted the First Appellate Court to hear and decide the cross objection independently. However, the First Appellate Court dismissed the cross objection on the ground that 84th defendant had not filed a written statement and he had remained exparte before the trial Court and hence, the cross objector has not established in which way he is aggrieved by the judgment of the Courts below. On the said finding, the cross objection was also dismissed. Challenging the dismissal of the said cross objection, the present second appeal has been filed by the 84th defendant in the suit. The second appeal was admitted on the following substantial questions of law:

(3.) The learned counsel for the appellant contended that even if the appeal is dismissed as withdrawn, the cross objection should be considered independently and decided on merits. He further contended that he is the legal heir of 5th defendant in the suit. Defendants 4 to 11 have jointly filed a written statement and contested the suit. He is only the legal heir of 5th defendant. Hence, the finding of the First Appellate Court that 84th defendant has not filed a written statement before the trial Court, is not factually correct. He further contended that even assuming that the 84th defendant remained exparte before the trial Court, he is always entitled to file a first appeal challenging the judgment and decree of the trial Court. He prayed that the judgment and decree in the cross objection passed by the First Appellate Court may be set aside and the cross objection may be remitted back to the First Appellate Court for fresh consideration.