IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 RSA.No. 481 of 2010() --------------------- AS.106/2007 of II ADDL.SUB COURT,KOZHIKODE OS.888/2003 of ADDL.M.C.,KOZHIKODE-II .................... APPELLANTS/APPELLANTS/PLAINTIFF: ----------------------------------------------------------- 1. NOONJIKKARA KUNHAMINA,AGED 74, W/O.NOONJIKKARA KHADER HAJI,PUTHUR AMSOM, KEDAYATHGUR DESOM,KOZHIKODE TALUK. 2. NOONJIKKARA AHAMED KOYA,AGED 53, S/O.NOONJIKKARA KHADER HAJI,DO. DO. 3. NOONJIKKARA ABDUL AZEEZ,BY POWER OF ATTORNEY IBRAHIMKUTTY,AGED 53, S/O.NOONJIKKARA KHADER HAJI,DO. DO. 4. NOONJIKKARA IBRAHIMKUTTY,AGED 38, S/O.NOONJIKKARA KHADER HAJI,DO. DO. 5. FATHIMA,AGED 49,W/O.MOIDEEN KUTTY.M.M, KACHARKAVIL HOUSE, NADAMMAL POYIL, P.O.PUTHUR, VIA.KODUVALLI. 6. MARIYA,AGED 47,W/O.ASSAIN HAJI, OTHAYAMANGALAM HOUSE,P.O.R.E.C,CHATHAMANGALAM PULLAVUR DESOM, KOZHIKODE. 7. SAINABA,AGED 43,W/O.MUHAMMED, KAMMARUKANDATHIL,CHATHAMANGALAM AMSOM, PULLANNUR DESOM, KOZHIKODE. 8. RAMLA,AGED 36,W/O.MUHAMMED, KOLLAPURATH HOUSE, NEELESWARAM AMSOM, VENNAKAODE DESOM,KOZHIKODE. Kss ..2/- ..2.... RSA NO.481/2010 9. NAZEEMA,AGED 34 YEARS, W/O.MAJEED, KODEMPATTIL, CHEROOPPA, MAVOOR AMSOM, VALAYANNUR DESOM. BY ADVS. SRI.SRINATH GIRISH, SRI.E.NARAYANAN. RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------------- 1. NOONJIKKARA KADEEJA UMMA,AGED 52, D/O.NOONJIKKARA KHADER HAJI,UNNACHAN VEETIL, P.O.MUTHAPPAN PUZHA,THIRUVAMBADI AMSOM DESOM, KOZHIKODE TALUK. 2. U.V.ABU, AGED 67,S/O.ATHRUMAN, UNNACHAN VEETIL, P.O.MUTHAPPAN PUZHA, THIRUVAMBADI AMSOM DESOM,KOZHIKODE TALUK. 3. YARATHINKAL HAMSA,AGED 48, S/O.ABDURAHIMAN,UNNACHAN VEETIL,P.O.MUTHAPPAN PUZHA,THIRUVAMBADI AMSOM DESOM,KOZHIKODE TALUK. 4. CHIMMINIKKARA MAJEED,AGED 34, S/O.IBRAHIM,UNNACHAN VEETIL,P.O.MUTHAPPAN PUZHA, THIRUVAMBADI AMSOM DESOM,KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2010, THE COURT ON 14/07/2010 DELIVERED THE FOLLOWING: Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 481 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2010. JUDGMENT The plaintiffs, who were non-suited by both the courts below are the appellants. The suit was one for partition. 2. According to the plaintiffs, the plaint schedule properties belonged to the predecessor in interest of the plaintiffs and the first defendant, who obtained it under Ext.A1 purchase certificate dated 21.8.1973. Plaint items 2 and 3 also belonged to Khader Haji by way of Exts. A2 and A3 dated 13.9.1972 and 21.8.1973 respectively. Khader Haji was in possession and enjoyment of the plaint schedule properties. He put up a residential building therein and he is said to have permitted the first defendant and her husband to reside in the new building. On the death of Khader Haji, the plaint schedule property devolved on R.S.A. 481/10. 2 the plaintiffs and the first defendant, who are his legal heirs. There are some mistakes in the description of the properties in the purchase certificates and in the plaint the properties have been shown with the correct description. The plaintiffs would say that the permission granted to the first defendant and her husband has been revoked and they have no right to continue in the premises. It is learnt that the second defendant had made certain documents in respect of the plaint schedule properties and they are not binding on the plaintiffs. On the basis of those documents, defendants 1 and 2 filed two suits, namely, O.S. 658 of 1999 and O.S. 671 of 1999 against some of the plaintiffs herein. Those suits were dismissed holding that the claim set up by defendants 1 and 2 were false. As per the decision in the said suit, it is found that the parties are co-owners and therefore the present suit for partition. 3. The defendants contested the suit. They pointed out that the description of the plaint schedule is incorrect. It is situated in a different Village. Khader Haji R.S.A. 481/10. 3 had no rights over the plaint schedule properties. The properties were taken on oral lease by the first defendant and subsequently as per suo motu proceedings No.45 of 1993 purchase certificate was issued in favour of the first defendant. Out of the plaint schedule item No.1, first defendant had gifted 5 cents of property to the second defendant as per document No.1760/85. The second defendant put up a residential building, wherein defendants 1 and 2 resides. That is scheduled as item No.2 in the written statement. The allegation regarding the so-called permission etc. are baseless. It is also pointed out that the description of the other properties in the plaint schedule are also incorrect and misleading. Those properties actually belonged to the second defendant by virtue of purchase certificate Nos. 338/93 and 46/93. Out of the third schedule property, the second defendant had assigned five cents of property in favour of the fourth defendant as per document No.2197/95 and 16 cents of property in favour of the third defendant as per document No.1253/1994. The respective R.S.A. 481/10. 4 alienees are in possession of the properties. Property obtained by the second respondent as per the purchase certificate is shown as item Nos.3 and 4 to the written statement. Pointing out that the plaintiffs have no manner of right over the plaint schedule properties, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of Exts.A1 to A7 marked from the side of the plaintiffs and Exts.B1 to B53 marked from the side of the defendants. Neither side adduced any oral evidence. 5. The trial court found that the description of the properties covered by Exts.A1 to A3 were totally different from the description given in the plaint and it would appear that the two sets of properties are entirely different. The lower appellate court has also noticed that no oral evidence was adduced to show that there was any error in the purchase certificate said to have been obtained by Khader Haji. The trial court was also of the view that Ext.A5, which R.S.A. 481/10. 5 is the common judgment in O.S.671 and 658 of 1999 can be of no help to the plaintiffs. Holding that the plaintiffs were not able to establish their title for partition, the suit was dismissed. 6. The plaintiffs carried the matter in appeal as A.S. 106 of 2007. The appellate court too found that the description of the plaint schedule properties considerably differ from those contained in the documents on which reliance was placed by the plaintiffs and it is not possible to identify the properties. It was also found that the description of the plaint schedule was almost similar to the description of the property in the purchase certificates said to have been obtained by the defendants. It had no resemblance to Exts.A1 to A3. Like the trial court, the appellate court also found that the reliance placed on Ext.A5 judgment was misconstrued. Accordingly, the appeal was dismissed. 7. Learned counsel appearing for the appellants pointed out that the courts below were not justified in non- R.S.A. 481/10. 6 suiting the plaintiffs. The courts below have failed to consider the true impact and purport of Ext.A5 judgment and that has resulted in miscarriage of justice. The properties involved in the two suits disposed of by Ext.A5 judgment and the present suit are one and the same. It has been found by the court in Ext.A5 judgment that the parties are co-owners. That finding has become final. Therefore, the courts below were not justified in holding that the properties are not identifiable and that the plaintiffs have not proved their title to the suit properties. 8. Though the argument looks very convincing, on a close scrutiny of the materials available, it can be found to be without any basis whatsoever. Before this court, at the time of admission, learned counsel for the appellants sought to produce Exts.A5 and A7 in support of his contentions. They are the common judgment in O.S. 658 and 671 of 1999 and the judgment in A.S. 140 and 141 of 2004 respectively. R.S.A. 481/10. 7 9. One cannot omit to note that the plaintiffs traced title to Exts.A1 to A3. Both the courts have found that the description in Exts.A1 to A3 differ considerably from the description given in the plaint schedule. According to the lower courts, it appears that the two properties are entirely different. It is interesting to note that both the courts have observed that the description in the plaint compares more favourably with the description of the property in the purchase certificates obtained by the defendants. It is here that non-examination of the witnesses by the plaintiffs assumes importance. If they had a case that the description in the purchase certificates was wrong, they ought to have given evidence as to why it is so and what steps they have taken to rectify it. They had also to say that the description of the properties given in the plaint was the correct description. They made no effort in that regard. 10. Instead of proving that the properties covered by Exts.A1 to A3 are identical to the properties described in R.S.A. 481/10. 8 the plaint, the plaintiffs now seek to rely on Exts.A5 and A7. Ext.A5 is the common judgment in O.S. 671 of 1999 and O.S. 658 of 1999. Both the suits were for injunction. Therefore, the only question was regarding possession alone. The issue of title was not agitated or decided in the said suit. Both the suits were dismissed by Ext.A5 judgment. Of course, there is an observation that the parties are co- owners. The matter was carried in appeal by the plaintiffs in the said suit. Before the appellate court, both sides conceded that the decision on the identity of the property and ownership may be deferred to be dealt with in the partition suit, i.e. the present suit. To be more precise, paragraph 3 of Ext.A7 reads as follows: “When both the appeals came up for hearing, the learned counsel for the appellant submitted that in view of the subsequent suit for partition filed as O.S. 888/03 before the Additional Munsiff's court-II, Kozhikode it is not necessary to dispose of these appeals on merit and that the question of title can be left open to be decided in the said suit for partition. The learned counsel for the R.S.A. 481/10. 9 respondents submitted that here need not be any further enquiry regarding the identity of the plaint schedule property and that he has no objection in deciding the question of title in the suit for partition. In view of the submission made by the counsel for both sides, I find no necessity to dispose of these appeals on merit. Both counsels have agreed that the question of title can be left open to be decided in O.S. 888/2003.” 11. In the light of the above observation, it is idle for the plaintiffs to contend that any issue has been decided in the earlier suit. The observation of the trial court that the parties are co-owners stands dislodged by the judgment in the appeal, i.e. Ext.A7. The question regarding identity of the properties and so also the ownership of the properties are left open to be decided in the partition suit, which is the present suit. Having thus made a concession before the court in the earlier proceedings, it comes with little grace from the appellants that there are findings in the common judgment, which are binding on the defendants in the present suit. R.S.A. 481/10. 10 12. In the case of partition, there should be pre- existing right. Title as such cannot be created for the first time by partition. Apart from the fact that the earlier suits were for injunction alone, it is also evident from what has been extracted above that there has been no decision regarding the title of the parties to the properties. Even though the plaintiffs contended in the present suit that the properties involved in the earlier suits and the present suit is one and the same, that can also be of no help to the plaintiffs. Identity of the property seems to have been in dispute in the earlier suits also. For reasons best known to the parties, they chose to concede before the appellate court in the earlier suits that the issue regarding identification and title may be left open to be decided in the partition suit. 13. It therefore follows that there is no conclusive finding regarding any issue in the earlier suit, which binds the parties in the present suit. In the present suit therefore the identity of the property as well as the title to the R.S.A. 481/10. 11 property had to be considered afresh. Both the courts below have found that the plaintiffs have miserably failed to show that the property scheduled to the plaint is the property covered by Exts.A1 to A3. On the other hand, both the courts below found that the description of the plaint schedule property looks more similar to the description of the properties in the purchase certificates obtained by the defendants. The result is that the plaintiffs have not been able to show that the courts below have erred in any manner in reaching the conclusions. It is not shown that the findings are either perverse or unwarranted by the evidence on record. No substantial question of law arises for consideration in this Second Appeal. Accordingly, this Second Appeal is dismissed in limine. P. BHAVADASAN, JUDGE sb.