IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 SA.NO. 421 OF 1998(A) -------------------------------- (AGAINST A.S. NO.93 OF 1990, SUB COURT, MAJERI AGAINST O.S. NO.650 OF 1987, MUNSIFF'S COURT, MANJERI) APPELLANT(S) - DEFENDANTS - RESPONDENTS: ---------------------------------------------------------------- 1. ABU, S/O. CHIRAKKA OSSAN ALAVI, KALIKAVU AMSOM THRIKKUNNASSERI DESOM ERNAD TALUK, MALAPPURAM DISTRICT. 2. KHADEEJA, D/O. PUTHIYATH MOIDEEN, DO. DO. (DIED) ADDITIONAL APPELLANTS IMPLEADED: ----------------------------------------------------- 3. NABEESA, D/O.KHADEEJA, KARUVARAM KUNDU AMSOM DESOM, NILAMBUR TALU, MALAPPURAM DISTRICT. 4. JAMEELA, D/O. DO. DO. DO. 5. UMMER, S/O. DO. DO. DO. 6. HAMEED, S/O. DO. DO. DO. 7. ABDUL SALAM, S/O. DO. DO. DO. 8. JAMAL, S/O. DO. DO. DO. 9. HAFSATH, D/O. DO. DO. DO. ADDITIONAL APPELLANTS 3 TO 9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 2ND APPELLANT AS PER ORDER DATED 5.12.2002 IN CMP NO.2401 OF 2002. BY ADV. SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE BY ADVOCATE SHRI S. ANANTHAKRISHNAN RESPONDENT(S) - PLAINTIFFS - RESPONDENTS: ------------------------------------------------------------- 1. MUHAMMED, S/O.CHIRAKKAL OSSAN ALAVI, BY MUTHALIYAR MATTAYI MOIDEEN, KALIKAVU AMSOM, THRIKKUNNASSERI DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 2. AYISHUMMA, D/O. DO. DO. ADV. SRI.K.M.SATHYANATHA MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.421 of 1998 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of February, 2009 J U D G M E N T ---------------------- The substantial questions of law raised for a decision are whether the first appellate court was justified in relegating the issue regarding identification of the property sought to be partitioned to the stage of final decree? and whether the first appellate court was justified in granting a preliminary decree for partition based on Exts.C1 and C2, report and plan? 2. Appellant No.1 and respondent No.1 are brothers. Appellant No.2 and respondent No.2 are the wives of appellant No.1 and respondent No.2, respectively. Appellant No.2 died pending this appeal and her legal representatives (apart from appellant No.1) are impleaded as additional appellants 3 to 9. Respondents sued the appellants for partition and separate possession of the share of respondent No.1 in the suit property, 70 cents in extent in Sy.No.684 (later amended as 684/1B) of Kalikavu Village, in Ernad Taluk. Respondents claimed that the said property was originally taken on lease by Panavechaparambil Konkan from Koralikkadan Thanduparakkal Unni Hydru and after the death of Konkan, appellant S.A. No.421 of 1998 -: 2 :- No.1, respondent No.1, their elder brother Moideen (P.W.2) and mother Pathumma (deceased) purchased the said property as per Ext.A1, assignment deed No.716/53 dated 9.3.1953 executed by Chami, S/o.Konkan. While the co-owners were in possession and enjoyment of the property elder brother, Moideen (P.W.2) and mother, Pathumma relinquished their right in favour of appellant No.1 as per Ext.A2, release deed dated 17.11.1973. Thus, respondent No.1 and appellant No.1 became the absolute owners of the property in joint possession thereof. Since respondents are not interested in continuing with the joint ownership they wanted their 2/5 shares to be partitioned and alloted to them leaving 3/5 shares to appellant No.1. Appellants resisted the suit contending that the suit property is not properly identifiable and that property described in item No.2 of plaint schedule is not the one covered by Exts.A1 and A2. The property described in the plaint schedule exclusively belonged to appellant No.1, he having obtained the same on oral lease from V.T.Moosakutty. He obtained purchase certificate from the Land Tribunal. Appellant No.1 constructed a house in the said property and is residing with family in that house. Appellant No.1 later assigned that property in favour of appellant No.2 as per assignment deed dated 18.3.1983 (certified copy of which is Ext.A4). According to appellants, property S.A. No.421 of 1998 -: 3 :- covered by Exts.A1 and A2 is situated a little away from the suit property and is in the possession of Mattayi Moideen, Power of Attorney Holder of respondent No.1. 3. An Advocate Commissioner was appointed to identify the property. Commissioner submitted Exts.C1 and C2, report and plan. Learned Munsiff was not satisfied with the identity of the suit property and dismissed the suit. On appeal by the respondents, learned Sub Judge found that the identity of the property is sufficiently proved and that the contention of the appellants that Ext.C2 plan is not correct, cannot be accepted. Learned Sub Judge also observed that “exact identification is a matter for the commissioner in the final decree stage to ascertain and the right to partition and the entitlement to share in the capacity as a co-owner alone is decided in the preliminary stage”. Accordingly a preliminary decree for partition was passed holding that respondents are entitled to 2/5 shares and appellant No.1 is entitled to get 3/5 shares in item No.2 of plaint schedule. That judgment and preliminary decree are under challenge before me. Learned counsel for appellants contended that without proper identification of the property sought to be partitioned, a preliminary decree could not have been passed in law and that it was wrong to relegate the issue regarding identification of the property to the stage of final decree S.A. No.421 of 1998 -: 4 :- proceedings. Learned counsel also contended that there is no proper identification of the property and hence the first appellate court was not justified in reversing the judgment and decree of the trial court which rested on proper appreciation of evidence. 4. The proposition that identification of the property sought to be partitioned is a matter to be decided in the final decree proceedings as such does not appear to be correct. For, final decree has to be passed in accordance with the preliminary decree and judgment. Identification of the property if disputed, in my view, is a matter which has to be decided by the court before passing the preliminary decree for partition. But going through the judgment of the learned Sub Judge, what is discernible is not that without deciding the dispute regarding identity, the issue has been relegated to the final decree proceedings. Instead learned Sub Judge has considered the contention raised by the parties regarding the identity of the property, found that the property sought to be partitioned is identified and that the contention raised by the appellants that Ext.C2, plan is not correct cannot be sustained. It is only that incidentally, learned Sub Judge observed that “exact identification” is a matter to be decided in the final decree proceedings. That observation has to be understood in the backdrop of the contention raised by the parties S.A. No.421 of 1998 -: 5 :- regarding the actual extent of the property sought to be partitioned. What is meant by the learned Sub Judge is only that the exact extent of the property available for partition is to be decided in the final decree proceedings which in my view is correct also. 5. Crucial question is whether the finding of the learned Sub Judge that the suit property is identified is supported by evidence. Respondents traced title to themselves and appellant No.1 over the suit property as per Exts.A1 and A2. Appellants do not dispute Ext.A1 and A2 or the derivation of title referred to therein, their only contention being that suit property is not the one referred to in Exts.A1 and A2, suit properly exclusively belonged to appellant No.1 which he took on oral lease from V.T. Moosakutty followed by appellant No.1 obtaining purchase certificate from the Land Tribunal as seen from Exts.B1 and B2 and later appellant No.1 assigned that property in favour of appellant No.2 as per Ext.A4. In the plaint schedule the suit property is described as Kottangottuparambu having an extent of 70 cents comprised in Sy.No.684 and bounded by kudiyiruppu on the east, west and north and paddy field on the south. Survey number of the plaint schedule property was later corrected as 684/1B. In Exts.A1 and A2 which are not under challenge, property is described as 'Kottangottuparambu' measuring 34x23 for 6' koles (which is 65.1 S.A. No.421 of 1998 -: 6 :- cents) comprised in R.S. No.368 (old Sy.No.684) and bounded by kudiyiruppu on the possession of Moideen in the east, kudiyiruppu in the possession of Abdulla on the south, paddy filed on the west and kudiyiruppu on the north. There is also mention about the house and other structures in plaint schedule item No.2 and Exts.A1 and A2. According to respondents, appellants are residing in the said house. 6. According to the respondents, the suit property is the blue shaded portion in Ext.C2. In Ext.C2, the blue shaded portion is shown as comprised in Sy.No.684/1B (consequent to which the survey number of plaint schedule item No.2 was corrected as 684/1B) and situated in Kalikavu Village. Present boundaries of the blue shaded portion are given in Ext.C2 as kudiyiruppu belonging to Pottambal Saidalavi Ubaidulla on the east, kudiyiruppu belonging to Andikkadan Unni Moideen on the north, kudiyiruppu belonging to pathiyilthodi kunhunni on the west and lane on the south. As against the blue shaded portion appellants pointed out the red shaded portion situated towards the south-east of the blue shaded portion as the property covered by Exts.A1 and A2. That property is shown in Ext.C2 as comprised in two Villages, Kalikavu and Velayoor. The line 'ABC' is the boundary of the two Villages and the portion on the west of the lane came in Kalikavu Village while the remaining portion on the east S.A. No.421 of 1998 -: 7 :- came in Velayoor Village. The red shaded portion is shown as bounded by kudiyiruppu of Moochikal Muhammed on the east, kudiyiruppu of Narimadakkal Ubaidulla on the north, Kottangottu nilam on the west and kudiyiruppu of Mattayi Moideen on the south. There is also a house in the red shaded portion which according to the appellants, is occupied by P.W.3 who has been inducted into possession by the respondents. Learned counsel for the appellants contended that the boundary descriptions of the blue shaded portion in Ext.C2 do not tally with the boundary descriptions in Exts.A1 and A2 and the survey number is also different. In that situation, learned Sub Judge was not justified in granting preliminary decree for partition. 7. It is true that there is discrepancy regarding the southern and western boundaries of the property referred to in Exts.A1 and A2 and the plaint schedule. In Exts.A1 and A2, the southern boundary is stated as 'nilam' while western boundary is stated as 'kudiyiruppu'. Right from the beginning, respondents have a case (as seen from Ext.A3, lawyer notice dated 13.10.1987 and the plaint) that the southern and western boundaries mentioned in Exts.A1 and A2 interchanged. It is pertinent to note that in Ext.B4, reply notice (produced by the appellants in the first appellate court) the said statement in Ext.A3 is not controverted. It is true that against the S.A. No.421 of 1998 -: 8 :- assertion made by the respondents in the plaint that the southern and western boundaries interchanged in Exts.A1 and A2, there is a contention raised by the appellants that the said allegation is not correct. Learned Sub Judge proceeded on the assumption that plaint averment regarding interchanging of the southern and western boundaries is not disputed by the appellants which does not appear to be correct. But, fact remained that the statement in Ext.A3, notice dated 13.10.1987 whereby the respondents demanded partition of the suit property about interchanging of the southern and western boundaries was not disputed in Ext.B4. 8. So far as the boundary descriptions are concerned, P.Ws.1 and 2 have given evidence regarding the present boundaries of the blue shaded portion as stated in Ext.C2 and the plaint schedule. Discrepancy pointed out is that while according to the respondents even as the southern boundary as claimed by them is 'kudiyiruppu' while in Ext.C2, southern boundary is shown as lane. But, it is conceded by the first appellant when examined as D.W.1 that the said lane on the southern side of the blue shaded portion came into existence only 5 or 6 years back. I do not forget that respondents produced Ext.A5, deed of the year 1966 to show that the lane was in existence then. Assuming so, Ext.A1 is dated 9.3.1953 and of course, S.A. No.421 of 1998 -: 9 :- Ext.A2 which comes much after Ext.A5, but the possibility of the boundary descriptions in Ext.A1 being carried forward as such to Ext.A2 cannot be ruled out. It is interesting to note that though in Ext.A4, copy of the assignment deed executed by appellant No.1 in favour of appellant No.2 on 18.3.1983 the southern boundary of the blue shaded portion is described as lane, even appellant No.1 had no such case when he applied for purchase certificate in respect of the very same property. Exhibit B2 shows that in the application for purchase certificate appellant No.1 had shown the southern boundary of the property as 'paddy field' and not 'lane'. Exhibit B2, application was preferred in the year 1975. In Ext.B1, purchase certificate also the southern boundary is stated as 'paddy filed' and not 'lane'. Therefore, by virtue of Ext.A4 it is idle for the appellants to contend that the southern boundary of the blue shaded portion (lane) did not tally with the southern boundary description in Exts.A1, A2 and the plaint schedule. I am unable to accept the contention that the boundary description of the blue shaded portion do not tally with the descriptions in Ext.A2 and A2 and the plaint schedule. 9. In item No.2 of the plaint schedule, name of the property is stated as Kottangottuparambu as in Exts.A2 and A2. That, the blue shaded portion is known by the name 'Kottangottuparambu' is not S.A. No.421 of 1998 -: 10 :- disputed by the appellants their contention being that appellant No.1 got it by way of oral lease from Moosakutty in the year 1955. As to the alleged oral lease what is available is the interested version of appellant No.1 as D.W.1 and Ext.B1, purchase certificate issued from the Land Tribunal on the basis of the application (Ext.B2) made by him. It is seen from Ext.B2 which contains copy of the order dated 15.1.1976 of the Land Tribunal ordering purchase certificate to appellant No.1 that the landlord and the intermediary referred to therein remained absent in that proceeding. Concededly, respondents were not parties in that proceeding nor were they given notice of the same. A purchase certificate is of course evidence of title but is not conclusive as against persons to whom notice of the proceeding are not given. Exhibits B1 and B2 cannot affect the right of the respondents. If in respect of co-ownership property appellant No.1 has obtained purchase certificate, that would enure to the benefit of other co-owners also. 10. I stated that as regards the oral lease of the year 1955 what is available is the interested version of the first appellant and Exts.B1 and B2. D.W.1 admitted that there is no record to show that he has been in possession of the said property from 1955 onwards. In the deposition of appellant No.1 (D.W.1) his age at the time of S.A. No.421 of 1998 -: 11 :- examination in the trial court on 15.2.1990 is given as 55 years in which case he should have been aged 20 years at the time of the alleged oral lease in the year 1955. But the age stated on the top of the deposition is not part of the evidence given on oath and hence cannot be accepted. In Ext.A2 which is of the year 1973 whereby appellant No.1 acquired the share of P.W.2, his elder brother and mother, Pathumma the age of appellant No.1 is given as '35' in which case he should have been aged only 17 years at the time of the alleged oral lease in the year 1955. It is difficult to think that at a time when appellant No.1 was only 17 years and had elder brothers and mother residing with him, he would have gone for an oral lease individually in his name and as claimed by him, construct a house in that property the very next year and start residence. According to D.W.1 (first appellant) he obtained the oral lease from Moosakutty. He would say that Moosakutty got right over the said property on the death of his father, Kasali Haji. But D.W.1 does not know whether Kasali Haji died only during 1970-72. If Kasali Haji died during 1970- 72, Moosakutty who is stated to have granted oral lease in favour of appellant No.1 could acquire right by succession only after 1970-72 and could not have had any right to grant lease in the year 1955. It is pertinent to note that appellant No.1 (D.W.1) was not able to deny S.A. No.421 of 1998 -: 12 :- that Kasali Haji died during 1970-72. P.W.2, elder brother of appellant No.1 and respondent No.1 and who, along with their mother Pathumma (she is no more) released his right in favour of appellant No.1 as per Ext.A2 has given evidence supporting the respondents and stated that Exs.A1 and A2 are in respect of the suit property. Apart from that P.W.2 had purchased an item of land from a relative of respondent No.2 for consideration, nothing is brought out to disbelieve him. He is none other than the elder brother of appellant No.1 and respondent No.1 and is a party in Ext.A2 and hence competent to give evidence on the disputed question. P.W.3 who according to the appellants is residing in the house situated in the red shaded portion in Ext.C2 which according to them is the property covered by Exts.A1 and A2 has given evidence that 7 cents where that house is situated was acquired by him from Sulaiman Haji. But of course, though he claimed that he has documents to prove that, he did not produce the same. Failure of P.W.3 to produce the document cannot affect the case of the respondents since P.W.3 is not a party to the suit and he was not called upon to produce his document of title. It is also interesting to note that going by Ext.C2, the red shaded portion falls in two Villages, Kalikavu and Velayoor the line 'ABC' being the boundary line between the two Villages and nobody S.A. No.421 of 1998 -: 13 :- has a case that any part of the property covered by Exts.A1 and A2 fall within Velayoor Village. If the red shaded portion in Ext.C2 were the property covered by Exts.A1 and A2, necessarily appellant No.1 should be a co-owner of that property with respondent No.1. If that be so, it is quiet unlikely that till now appellant No.1 would not have asked for partition of that property. 11. It is true that in the plaint schedule as originally stated, extent of the property is given as 66 cents and in Exts.A1 and A2, the measurement is given as 34x23 for 6' koles i.e. 65.1 cents (while extent of the blue shaded portion is 70 cents) based on which the extent stated in plaint schedule was amended. Extent of the red shaded portion is almost 65 cents. But that is not an indication that the property referred to in the plaint schedule is the red shaded portion. It is in the light of the above controversy regarding extent that the learned Sub Judge observed that “exact identity” is to be decided in the final decree proceedings. I stated that what is meant is only regarding the actual extent. On a consideration of the materials on record I am satisfied that the finding of the first appellate court is based on proper appreciation of evidence. There is little reason to interfere with the finding that the suit property covered by Exts.A1 and A2 is the blue shaded portion Ext.C2. S.A. No.421 of 1998 -: 14 :- Appeal fails. It is dismissed. Costs shall come out of the estate. Civil Miscellaneous Application No.1192 of 1998 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== S.A. NO.421 of 1998 =================== J U D G M E N T 25TH FEBRUARY, 2009