IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 SA.No. 834 of 1990(G) ------------------------------- [AS.NO.3/1988 OF SUB COURT, PAYYANNUR, OS.NO.40/1982 OF MUNSIFF COURT, THALIPARAMBA] .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ----------------------------------------------------------- *1. KOOLIVATHUKKAL KARIKKAN MANI, AGED 56 YEARS, RYOT, KURUMATHUR, MUYYAM AMSOM PANAKADU DESOM, TALIPARAMBA TALUK, CANNANORE DIST. (*DIED). *2. KOOLIVATHUKKAL KARIKKAN KALLIANI, AGED 51 YEARS, -DO- -DO-. (*DIED). *3. KOOLIVATHUKKAL KARIKKAN CHIYAYI, AGED 46 YEARS, RYOT, KANNAPURAM AMSOM DESOM, KANNAPURAM.P.O. CANNANORE DIST. (*DIED). *4. KOOLIVATHUKKAL KARIKKAN NARAYANAN, AGED 45 YEARS, RYOT, KANOOL DESOM, MORAZHA AMSOM, CANNANORE DIST. (*DIED). *LR'S OF DECEASED 2ND APPELLANT: ADDL.A.5. MOOLAYIL RAGHUNATHAN, MAJOR, P.O. KARIMBRAM, TALIPARAMBA, KANNUR DT. KERALA. ADDL.A.6. MOOLAYI VILASINI, MAJOR, -DO- ADDL.A.7. MOOLAYI RAJEEVAN, MAJOR, -DO-. ADDL.A.8. MOOLAYI SAVITHRI, MAJOR, -DO-. ADDL.A.9. MOOLAYI NARAYANAN, MAJOR, -DO-. ........2.. :-2-: S.A. NO.834/1990-G: ADDL.A.10. MOOLAYI YESODA, MAJOR, -DO. LR'S OF DECEASED 4TH APPELLANT: ADDL.A.11. KARIKKAN MOHANAN, MAJOR, P.O. KANUL, MUNDAPURAM, KANNUR DT., KERALA. ADDL.A.12. KARIKKAN KRISHNAN, MAJOR, -DO. ADDL.A.13. KARIKKAN PRAKASAN, MAJOR, -DO. *2ND APPELLANT DIED AND ADDL. APPELLANTS 5 TO 10 ARE IMPLEADED AS LR'S OF DECEASED 2ND APPELLANT AND 4TH APPELLANT DIED AND ADDL. APPELLANTS 11 TO 13 ARE IMPLEADED AS THE LR'S OF DECEASED 4TH APPELLANT AS PER ORDER DTD. 06/01/2003 PASSED IN I.A. NOS. 3 TO 5 IN C.A. NOS. 612/2003 AND 613/2003 RESPECTIVELY. LR'S OF DECEASED 1ST APPELLANT: ADDL.A.14. K. JANAKI, KARIKKAN HOUSE, PUNAKKAD.P.O., KARIMBAM, DIST. KANNUR. ADDL.A.15. YESODA.K, KARIKKAN HOUSE, POONENGHODE, KOOVEERY.P.O., CHAPPARAPDAVE (VIA), KANNUR DISTRICT. ADDL.A.16. KRISHNAN.K, KARIKKAN HOUSE, PRAKKAD.P.O., KARIMBAM, DIST. KANNUR. ADDL.A.17. LAKSHMANAN.K, KARIKKAN HOUSE, PRAKKAD.P.O, KARIMBAM, DIST. KANNUR. *ADDL. APPELLANTS 14 TO 17 ARE IMPLEADED AS THE LR'S OF DECEASED 1ST APPELLANT AS PER ORDER DTD. 05/08/10 IN I.A. 1985/10. LR'S DECEASED 3RD APPELLANT: ADDL.A.18. K. SHANTHA, KARIKKAN HOUSE, VALLITHODE, P.O. MOTTAMMAL, CHERUKUNNU, (VIA), KANNUR DIST. ADDL.A.19. PREMAN.K, MATHANGA HOUSE, DHARMASALA, P.O. KANOOL, DIST. KANNUR, .....3... :-3-: S.A. NO.834/1990-G: ADDL.A.20. MOHANAN.K, KARIKKAN HOUSE, VALLITHODE, P.O. MOTTAMMAL, CHERUKUNNU (VIA), KANNUR DIST. ADDL.A.21. K. SHABNA, KARIKKAN HOUSE, CHEMMARAVAYAL, P.O MORAZHA, (VIA) MOTTAMMAL, KANNUR DIST. ADDL.A.22. ASHOKAN.K, KARIKKAN HOUSE, VALLITHODE, P.O, MOTTAMMAL, CHERUKUNNU (VIA), KANNUR DISTRICT. *ADDL. APPELLANTS 18 TO 22 ARE IMPLEADED AS THE LR'S OF DECEASED 3RD APPELLANT AS PER ORDER DTD. 05/08/10 IN I.A. 1987/10. BY ADVS. SMT.A.C.VIDYA, SRI. A.C. VENUGOPAL. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- *1. KOOLIVATHUKKAL KARIKKAN KANNAN, S/O. KORAN, AGED 58 YEARS, RYOT, MORAZHA AMSOM, KANOOL DESOM, TALIPARAMBA TALUK. (*DIED). 2. PINDATHU PUTHIYA PURAYIL NARAYANI, RYOT -DO- -DO-. LR'S OF DECEASED 1ST RESPONDENT: *ADDL.R3. K. RAJEEVAN, S/O. KARIKKAN KANNAN, KARIKKAN HOUSE, P.O. KANUL, MUNDAPURAM, VIA. KALLYASSERY, KANNUR DISTRICT, KERALA STATE. *ADDL.R4. K. RAJINI, D/O. KARIKKAN KANNAN, -DO-. *ADDL.R5. K. RAMESHAN, S/O. KARIKKAN KANNAN, -DO-. *ADDL.R6. K. REJANI, D/O. KARIKKAN KANNAN, -DO-. *ADDL.R7. K. RAJITHA, D/O. KARIKKAN KANNAN, -DO-. .....4.... :-4-: S.A. NO.834/1990-G: *ADDL.R8. K. SHEEJA, D/O. KARIKKAN KANNAN, -DO-. *ADDL.R9. K. RAJESH, S/O. KARIKKAN KANNAN, -DO-. *ADDL. RESPONDENTS 3 TO 9 ARE IMPLEADED AS THE LR'S OF DECEASED 1ST RESPONDENT AS PER ORDER DTD. 04/05/2001 IN I.A. 1/2001 IN C.A. NOS. 612/2003 AND 613/2003. R2 & ADDL. R3 TO R9 BY ADV. SRI.P.M.PAREETH. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2010, ALONG WITH LAA NO. 334 OF 1990, THE COURT ON 09/12/2010, DELIVERED THE FOLLOWING: prv. HARUN-UL-RASHID,J. ------------------------------- S.A. NO.834 OF 1990 & LA.A.NO.334 OF 1990 ------------------------------- DATED THIS THE 9TH DAY OF DECEMBER, 2010 JUDGMENT The substantial questions of law formulated in the appeal are as follows: “A) In as much as the children of the deceased Paru and Koran are admittedly not parties to the suit O.S.No.142/1963 and E.P.No.194/66 would Ext.B2 sale certificate dated 31/1/1967 relating to intermediary right in any way affect the rights of plaintiffs and lst defendant over the property under Ext.A2 marupat? B) Would Ext.B2 sale certificate in E.P.No.194/1966 in O.S.No.142/1963 give possession of the property to the auction purchaser without delivery pursuant to the sale certificate? C) What is the right obtained by the auction purchaser under Ext.B2 sale certificate? D) In as much as the assignor says that the property was already in the possession of the 2nd defendant as a lessee under him can Ext.B1 assignment of 1973 convey any right to 2nd defendant since under the Kerala Land Reforms Act the intermediary rights vested in the -2- S.A.No.834/90 & LAA.N.334/90 Government as on 1/1/1970? E) Is the oral lease mentioned in Ext.B1 not hit by Section 74 of the Kerala Land Reforms Act in as much as the assignor of Ext.B1 admittedly obtained Ext.B2 sale certificate only in 1967? F) In the facts and circumstances of the case, are the courts below legally right in holding that the plaintiff and lst defendant are not joint owners and consequently dismissing the suit?” 2. Plaintiffs in O.S.No.40/1982 on the file of the Munsiff's Court, Taliparamba are the appellants. The appeal is directed against the judgment and decree in A.S.No.3/1988 on the file of the Sub Court, Payyannur. The suit was filed for partition. Plaintiffs, four in number, prayed that the plaint schedule property be divided into 5 equal shares by metes and bounds and 4 such shares be allotted to them with future mesne profits. The suit was dismissed by the trial court holding that the plaint schedule property is not partible. The Appellate Court confirmed the decree and judgment passed by the trial court. The plaintiffs preferred -3- S.A.No.834/90 & LAA.N.334/90 S.A.No.834/1990 challenging the decree and judgment in A.S.No.3/1988. This Court by judgment and decree dated 23rd November, 2000 allowed the appeal and set aside the decree and judgment passed in A.S.No.3/1988. The legal heirs of the lst defendant preferred a Special Leave Petition. The Apex Court granted leave and registered the appeal as Civil Appeal No.613/2003. By order dated 10th December, 2009 the Apex Court set aside the judgment of this Court and remanded the case to this Court for fresh orders. The Apex Court held that the procedure adopted by the High Court in not formulating the substantial questions of law is not in accordance with Section 100 C.PC. and therefore without going into the merits of the claim made by both sides the Apex Court set aside the impugned judgment of this Court and remitted the case for fresh disposal. Accordingly, the second appeal was heard again for disposal afresh. 3. The plaintiffs' case is as follows: The plaint schedule -4- S.A.No.834/90 & LAA.N.334/90 property is an extent of 94 cents in Sy.No.26/1 and 26/2 of Morazha amsom Kanool desom. The plaint schedule property was originally possessed and enjoyed by one Kurankunnil Kannan on kuzhikanam right under the jenmi Kadamberi Devaswom and on the death of Kannan, his only son Neelankol Koran enjoyed the property. On the death of Koran, his rights are devolved on his wife Paru and their children. The plaintiffs and the lst defendant are the children of Paru and Koran. After the death of Paru, her rights in the plaint schedule property also devolved on her children. The plaintiffs and the lst defendant are in joint possession of the property and therefore the plaintiffs are entitled to 4/5 share and the lst defendant is entitled to 1/5 share. 4. The 2nd defendant is the wife of the lst defendant. A joint written statement was filed by the defendants. The gist of the contentions are as follows: It is admitted that the plaintiffs and the lst defendant are the children of Koran and Paru. It is averred that -5- S.A.No.834/90 & LAA.N.334/90 Kannan, who is the grandfather of plaintiffs and the lst defendant, assigned his right in favour of one Ali and that Koran, the father of plaintiffs and lst defendant got the property under the said Ali on kuzhikanam pattom kudiyirippu right. It is further stated that on the death of Koran, his rights devolved on Paru and lst defendant and thus they were in possession of the property. While so, Paru, plaintiffs and the lst defendant surrendered their right over the property to the intermediary by a registered release deed. 5. The defendant denied the plaint averment that the plaint schedule property was in the possession of Kannan as a tenant under Kademberi Devaswom. It is also averred that Kademberi Devaswom filed O.S.No.142/1983 against the intermediary and others for arrears of rent and purappad. In execution of the decree the plaint schedule' property was put in court auction and one Raghavan bid the property and obtained sale certificate. It is stated that the auction purchaser got possession of -6- S.A.No.834/90 & LAA.N.334/90 the property after delivery and the 2nd defendant purchased the property from Raghavan as per registered assignment deed dated 26/7/1973 and thus the defendants are in possession and enjoyment of the plaint schedule property as of right. The extent of property assigned is 61 cents in R.S.No.26/1 and 26/2. The 2nd defendant purchased the jenm right from the Land Tribunal as per the order in OA.No.26126/1975. It is also averred that the remaining extent was also in the possession of the 2nd defendant as per an oral lease obtained from the intermediary. The trial court on the basis of assignment deed dated 26/7/1973 held that the property belongs to the 2nd defendant and the same is not partible and hence the suit was dismissed by judgment and decree dated 20/8/1987. The trial court noted that the the defendants admitted that Neelankol Koran was in possession of the property and then the burden is on them to prove their case. The trial court considered the question as to what was the right that Koran had in the plaint property. The trial court also -7- S.A.No.834/90 & LAA.N.334/90 considered Exts.B8 and A2, which are documents executed at the earlier point of time. Ext.B8 (X1) is a release deed executed on 2/4/1940 by Paru on her behalf and also on behalf of her minor children in favour of intermediary Sri Avvokker Mappila. As per Ext.B8, verumpattom right over the property extending to 1 acre and 33 cents was surrendered and on the very same day Paru executed Ext.A2 marupat in favour of Avvokkar Mappila and thus got back the released right. The trial court held that though Ext.A2 is termed as marupat, the recitals of the same would show that it is only a verumpattom. It was held that as per Ext.A2 Paru got only melpattom right over the house, well, one coconut tree and one jack tree. What was released by Ext.B8 was the very same property got back by Ext.A2 marupat. So no much significance can be attributed to the said documents. The execution of release deed and the marupat simultaneously (Exts.B8 and A2) on the very same day is to avoid parting with the possession of the property by Paru and -8- S.A.No.834/90 & LAA.N.334/90 her children. The trial court on the basis of Ext.A2 held that Paru got only melpattom and possession of the property was not handed over as per Ext.A2. The trial court also examined the right of the 2nd defendant on the strength of Ext.B1 assignment deed dated 26/7/1973 and B2 certificate of sale. The trial court held that the 2nd defendant has got absolute right over 61 cents of land as per Exts.B1 and B2. The trial court also considered the question as to whether the 2nd defendant got the balance extent of property. The total extent of property is 94 cents. The assignment deed covers only 61 cents. The trial court also accepted the contention of the 2nd defendant that she is in possession of the balance extent of land. The trial court held that though the contention of oral lease alleged by the 2nd defendant is found against, looking into the boundaries of Exts.X1, A2, B1 and B3, it has to be held that the 2nd defendant is holding more than 61 cents and the total extent would be about 1 acre and 33 cents. -9- S.A.No.834/90 & LAA.N.334/90 6. The plaintiffs challenged the decree and judgment dated 29/8/1987 in A.S.No.3/88. The Appellate Court for more or less the same reasons confirmed the decree and judgment of the trial court holding that the 2nd defendant has proved her right over the plaint schedule property and dismissed the appeal. 7. The common case of the parties is that the plaint schedule property belonged to Kadamberi Devaswom in jenmom. The plantiffs' case is that the grandfather of the plaintiffs, Kurankunnil Kannan was in possession of the same on kuzhikanam right under Kadamberi Devaswom and that after the death of Kannan, his only son Koran continued to possess the property and after his death, his wife-Paru and her children continued to possess and enjoy the property on kuzhikanam right. The suit was filed for partition and separate possession of 4/5 share. The defendants denied the plaintiffs' right over the plaint schedule property and contended that the plaint schedule property is not available for -10- S.A.No.834/90 & LAA.N.334/90 partition. 8. I have perused the joint written statement filed by the defendants. The lst defendant is one of the children of Koran and Paru and the 2nd defendant is the wife of the lst defendant. In paragraph 2 of the written statement, it is stated that Kannan's right was assigned to one Ali and that under the said Ali, Koran, the father of plaintiffs and lst defendant, was in possession and enjoyment of the property under the kudiyirippu right (lease). It is also stated in the written statement that after the death of Koran, the right of Koran devolved on his wife Paru and the lst defendant and they were in possession and enjoyment of the property. While so, both of them released their right in favour of the intermediary and others. 9. The case of the defendants is that the 2nd defendant acquired title over the property by virtue of the sale deed dated 26/7/1973 executed by Raghavan in her favour. Thus, the 2nd -11- S.A.No.834/90 & LAA.N.334/90 defendant contended that she is the absolute owner of 61 cents out of the plaint schedule property by virtue of the said sale deed (Ext.B1) and that the balance extent is in possession of the 2nd defendant as per the oral lease from the intermediary. 10. As per the contentions in the written statement the defendants have admitted the possession and enjoyment of the property by Kannan as well as Koran. The plaintiffs claimed title over the property as the legal heirs of deceased Koran. They claimed that originally Kannan was a lessee under Kademberi Devaswom and that after his death his son Koran enjoyed the property. In the light of the admission of Kannan's and Koran's possession, the burden to prove that Koran released or surrendered the leasehold right to the jenmi is on the defendants. It is the definite case of the defendants that deceased Koran surrendered the right over the plaint schedule property in favour of the intermediary. Defendants have produced Exts.B1 to B7 to prove -12- S.A.No.834/90 & LAA.N.334/90 their claim. Ext.B1 is the registration copy of the assignment deed executed by the auction purchaser-Raghavan in favour of the 2nd defendant for an extent of 61 cents. Ext.B2 is the sale certificate and Ext.B3 is the certified copy of the purchase certificate issued to the 2nd defendant by the Land Tribunal in respect of Ext.B1 property. 11. PW1, on behalf of the plaintiffs, testified before the court below that the plaintiffs or the deceased Koran or their mother had no occasion to surrender the plaint schedule property in favour of the intermediary in respect of the property situated in R.S.No.26/7 and 8. The right obtained by the intermediary as per Ext.B8 is the Melpattom right. Ext.B8 is the release deed executed by Paru and her children. By Ext.B8 release deed Paru and her children released their Melpattom right to the intermediary, Avvakkar. The items released are the house, well, one coconut tree and one jack tree etc. The very same items were returned to Paru -13- S.A.No.834/90 & LAA.N.334/90 and her children by Marupattom executed simultaneously by the intermediary, Avvakkar. After release of the property by Ext.B8, the same items were received back on the same day under Ext.A2. From Ext.B8 and Ext.A2, it is clear that what was released and what was obtained back on the same day are the very same right namely Melpattom right over the plaint schedule property. 12. The appellants/plaintiffs seriously and vehemently attacked the findings of the courts below holding that the plaintiffs have no right over the property. It is an admitted case that the property belonged to Kademberi Devaswom and that under the intermediary the father of the plaintiffs and the lst defendant was in possession of the property. It is also not disputed that after the death of Koran, the tenancy right held by Koran devolved on the plaintiffs and the lst defendant and their mother-Paru. I have referred to the release deed executed by Paru and a marupat in favour of the intermediary. The documents are Exts.B8(X1) and -14- S.A.No.834/90 & LAA.N.334/90 A2. 13. Exts.B8 and A2will show that the possession of the property continued to be with Paru and her children. There is no evidence to show that either Paru or her children, who are the plaintiffs and lst defendant, were evicted from the plaint schedule property. It is not disputed by the defendants that the property was originally possessed and enjoyed by Kannan, who is the father of Koran. In the written statement it is admitted that Kannan and Koran enjoyed the property. There is no evidence to show that the leasehold right enjoyed by Kannan was released or surrendered to the landlord at any point of time. It is seen from the evidence that O.S.No.142/1963 was instituted by the landlord against the intermediary and that Paru and her children were not impleaded in that case. It is nobody's case that Paru and her children were made parties to the suit. Paru and her children, who are the successor in interest of the original tenants were not parties to the said suit. -15- S.A.No.834/90 & LAA.N.334/90 Therefore, it can be seen that the sale certificate related only to the intermediary right and at no point of time the plaintiffs and the lst defendant were dispossessed pursuant to such sale certificate. 14. The contesting defendants were not able to explain the circumstances under which the plaintiffs' grandfather Kannan occupied the property. Therefore, it is clear that both the courts below went wrong in appreciating the right obtained by Kannan and Koran and later by Paru and her children and also the right obtained by the auction purchaser Raghavan vide Ext.B2 sale certificate. The definite case of the plaintiffs is that the property was taken delivery from Paru and her children and therefore the person, who is alleged to have taken delivery of the property cannot be said to have obtained possession of 61 cents as plaintiffs and defendants 1 to 4, who were in possession, were not dispossessed. The testimony of lst defendant as DW1 would go to show that he is not able to say whether delivery of possession has been effected -16- S.A.No.834/90 & LAA.N.334/90 pursuant to Ext.B2 sale certificate. DW1 who is the husband of the 2nd defendant, admits that Paru and her children never surrendered the property to anybody. DW1 is also not in a possession to say whether the auction purchaser has taken delivery of the property. He also admitted as DW1 that his wife never had possession under the auction purchaser. In the above context, the courts below ought to have found that Ext.B2 sale certificate relates to the sale of intermediary right only and no delivery has been effected pursuant to Ext.B2. The lst defendant admitted that on the date of the sale by auction, himself and his wife were in possession of the property and they were living in the house. Therefore, it can be reasonably concluded that the possession of 1st defendants could only be as the legal heir of Paru and Koran and not under the assignment deed which can convey only the intermediary right obtained under Ext.B2 sale certificate. A reading of Ext.B1 assignment in favour of the 2nd defendant would make it clear that it did not convey any -17- S.A.No.834/90 & LAA.N.334/90 possession of the property to the 2nd defendant, which relates to 61 cents. It is recited in Ext.B1 that the 2nd defendant was in possession of the property as a lessee under the auction purchaser. From the facts and evidence proved, the said recital is not corect. The assignor got sale certificate only in 1967. Regarding the remaining extent the 2nd defendant claims that she is in possession under an oral lease. Section 74 of the Kerala Land Reforms Act prohibits creation of lease after 1/1/1964. Therefore, it is clear that the oral lease alleged in respect of the remaining extent is a false case, as it was intended to make it appear that the 2nd defendant has obtained possession of larger extent pursuant to Ext.B1. The deposition of DW1 would go to show that his mother has been in occupation of the building for the last 20 years and that even on the date of sale in execution of the decree, DW1 and his wife the 2nd defendant were residing. It is also significant to note that the 2nd defendant has applied for a certificate of purchase in respect of 61 -18- S.A.No.834/90 & LAA.N.334/90 cents covered by the sale, but in respect of the remaining extent (33 cents) covered by the alleged oral lease, no application has been made for issuance of certificate of purchase. The very fact that on the date of sale DW1 and his wife, the 2nd defendant were residing in the building itself goes to show that the property was not taken delivery by the auction purchaser. Considering the totality of circumstances and evidence, it is seen that the 2nd defendant's residence can only be under Koran and family and therefore, she cannot claim any independent right as contended in the written statement. Therefore, the finding of the courts below based on the contention that the 2nd defendant has got absolute right and possession over the property is without any merit and is unsustainable in law. The plaintiffs have already proved their right over the property and as such the property is liable to be partitioned and the plaintiffs are entitled to the relief claimed in the plaint. The substantial questions of law formulated are answered. -19- S.A.No.834/90 & LAA.N.334/90 15. In the result, S.A.No.834/90 is allowed. The judgment and decree in A.S.No.3/88 are set aside. The preliminary decree is passed on the following terms: 1) That the plaint schedule property shall be divided into five equal shares and the plaintiffs be entitled to get 4/5 shares and the quantum of future profits will be decided at the time of final decree proceedings. 2) That the question of reservation if any, claimed by the sharers be left open for consideration at the time of passing final decree. 3. That the cost of the suit has come out of the estate. L.A.A.No.334/90. 16. A portion of the plaint schedule property in the suit having an extent of 0.1040 hectares of land in R.S.No.26/12 of Morazha Village was acquired. On 26/5/1986 the Special Tahsildar, Kuthuparamba passed an award fixing the compensation at Rs.22,214.24. The 2nd defendant in the suit claimed exclusive right over the property acquired. Therefore the acquisition authorities -20- S.A.No.834/90 & LAA.N.334/90 referred the case to the reference court and the reference court numbered the case as LAR.No.353/87 and tried the same along with the suit. The suit was dismissed against which A.S.No.3/88 was filed by the plaintiffs in the suit. The learned Sub Judge dismissed the appeal confirming the decree and judgment passed by the trial court. LAR.No.353/87 was separately considered and on the basis of the judgment in the suit the learned Sub Judge held that the 2nd defendant in the suit, who is the 2nd claimant in the reference case, is entitled to the