PATHUMMA DAUGHTER OF KOOPILAN UNEEN Vs. KUNTALAN KUTTY

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment dated 3rd of April, 1969 of the High Court of Kerala rendered in a Second Appeal arising from a suit for partition of immoveable property.

(2.) The suit was filed in the Court of Munsiff at Parappanangadi in the veer 1938. That Court passed a preliminary decree for partition in the 18th February, 1940 and thereafter the parties took no further interest in the matter for more than two decades. In the meantime the High Court passed an order dated December 22, 1956 redefining the territorial limits of the Courts of Munsiffs functioning in district Calicut, of which the Court of Munsiff at Parappanangadi was one. According to that order the territory in which the property disputed in the suit was situated came under the territorial jurisdiction of the Munsiff's Court of Manjeri and it was in that Court that the plaintiff filed, on the 18th January, 1966 an application (I. A. No. 109 of 1966) praying that a final decree in the suit be passed. Defendant No. 12 (who is now dead and is represented in this appeal by respondents No. 1 and others) immediately took an objection that the Manjeri Court had no territorial jurisdiction to hear the application and that the matter should have been agitated in the Court of Munsiff at Parappanangadi. The objection was overruled by the Manjeri Court which proceeded by the partition the property by metes and bounds and ultimately passed a final decree in that behalf on 9th July, 1968. An appeal was filed against final decree by defendant No. 12 in the Court of District Judge before whom the objection to the jurisdiction assumed by the Manjeri Court was again taken but was repelled with the result that the final decree was confirmed. The third round of litigation in regard to question of jurisdiction took place in the High Court wherein a learned single Judge upheld the objection and ruled that it was only the Parappanangadi Court that had the territorial jurisdiction to entertain the application praying for final decree-and that the assumption of such jurisdiction by the Manjeri Court was not justified. The objection being upheld, the final decree was set aside and there was thus no occasion for the High Court to decide the other points arising in this appeal.

(3.) We have heard learned counsel for the parties on the question of jurisdiction. An unfortunate aspect of this litigation has been that although that question has been agitated already in three courts and has been bone of contention between that parties for more than a decade, the real provision of law which clinches it was never put forward on behalf of the appellant before us nor was adverted to by the learned District Judge or the High Court. That provision is contained in sub-section (1) of Section 21 of the Civil P. C. which runs thus: