IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 AS.No. 799 of 1994() -------------------- OS.11/1990 of SUB COURT, QUILANDY .................... APPELLANTS/DEFENDANTS 1 TO 6: --------------------------------------------------- 1. THEKULLAPARAMBIL CHOYICHI, AVADUKKA DESOM, CHANGAROTH AMSOM, QUILANDY TALUK, KOZHIKODE DIST. (DIED) 2. THEKULLAPRAMBIL DEVI, DO. DO. 3. THEKKULLAPARAMBIL CHIRUTHA, DO. DO. 4. THEKKULLAPARAMBIL GOPALAN, DO. DO. 5. THEKKULLAPARAMBIL BHASKARAN, DO. DO. 6. THEKKULLAPARAMBIL YESODHA, DO. DO. (APPELLANTS 2 TO 6 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED FIRST APPELLANT AS PER ORDER DT.23.6.09 VIDE MEMO DT.25.5.09 FILED BY COUNSEL FOR APPELLANTS. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENTS/PLAINTIFFS & DEFENDANTS 7 TO 13: --------------------------------------------------------------------------- 1. PALAKKANDIYIL GOPALAN (DUMB) BY GUARDIAN AND NEXT FRIEND, PALAKKANDIYIL SANKARAN, MEETTUPARAYIL, PERAMBRA AMSOM, QUILANDY TALUK, KOZHIKOD. 2. PALAKKANDIYIL NANU ** METTUPARAYIL, DO. DO. (SECOND RESPONDENT IS APPOINTED AS THE GUARDIAN AND NEXT FRIEND OF THE 1ST RESPONDENT AS PER ORDER DT.26.6.01 ON CMP 1781/01). 3. PALAKANDIYIL KUMARAN, DO. DO. 4. KANICHITHAZHA MATHA, MUTHUVANNACHA AMSOM, KALOOR DESOM, QUILANDY TALUK, KOZHIKOD. 5. ARAYAMMATTUCHALIL JANU, NARAYAMKULAM AMSOM DESOM, DO. DO. 6. KUTTIKUNNUMMAL DEVI (DIED) CHANGAROTH AMSOM DESOM, DO. DO. 7. KANICHITHAZHA KUNHIKANNAN, MUTHUVANNACHA AMSOM, KALLOOR DESOM, DO. DO. 8. POLACHALAKANDY CHIRUTHA, PYTHEDATHA DESOM, KALLODE AMSOM, DO. DO. 9. PARAMBATH LEELA, KUTTIYADI AMSOM, OORATH DESOM, DO. DO. 10. MADATHIL YESODHA, THURAYOOR AMSOM, P.O. THURAYOOR, DO. DO. ADDL. 11. AMBU, HUSBAND OF KUTTIKUNNUMMAL DEVI, AGED 75 YEARS, KUTTIKUNNUMMAL HOUSE, AVEDUKKA P.O., PERUVANNAMUZHI, VIA. CALICUT (DIED) 12. KUMARAN, AGED 45 YEARS, S/O. KUTTIKUNNUMMAL DEVI, DO. DO. 13. BALAKRISHNAN, AGED 42 YEARS, S/O. DO. DO (THE SAID BALAKRISHNAN IS DUMB AND REPRESENTED BY HIS GUARDIAN KUMARAN, AGED 45 YEARS, S/O. KUTTIKUNNUMMAL DEVI, DO. DO.) 14. CHANDRAN, AGED 38 YEARS, S/O. KUTTIKUNNUMMAL DEVI, DO. DO. 15. PRAKASAN, AGED 38 YEARS, DO. DO. 16. MOHANAN, AGED 30 YEARS, DO. DO. (LEGAL HEIRS OF DECEASED 6TH RESPONDENTS ARE IMPLEADED AS ADDL. R11 TO R16 VIDE ORDER DT.7.4.09 IN IA 3652/06.) (IT IS RECORDED THAT THE ADDL. 11TH RESPONDENT IN THE APPEAL DIED AND THAT ADDL. RESPONDENTS 15 & 16 (ALREADY IN THE PARTY ARRAY) ARE HIS LEGAL HEIRS VIDE ORDER DT.7.4.09 ON MEMO DT.9.8.07 c.f.3518/07). ADV. SRI.R.K.MURALEEDHARAN FOR R1 TO 3 SRI.R.PARTHASARATHY FOR R1 TO R3 ADV. SMT.G.SAARIKA FOR ADDL.R12-16 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON 19.8.2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO. 4407/1995 IN A.S.NO. 799 OF 1994 DISMISSED 19.8.2009 SD/- M.L.JOSEPH FRANCIS, JUDGE /TRUE COPY/ M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 799 of 1994 - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of August, 2009 JUDGMENT This appeal is filed by defendants 1 to 6 in O.S.No. 11 of 1990 on the file of the Sub Court, Quilandy. Respondents 1 to 3 are plaintiffs 1 to 3 and respondents 4 to 10 are defendants 7 to 13 in that suit, which was filed for partition of the plaint schedule property claiming 5/7 shares. As per the plaint averments, they are the donees of the fractional interest in the property by virtue of Ext.B34 Gift Deed dt.15.10.1963. The plaintiffs are the children of deceased Cheeru, daughter of Kannan. The averments in the plaint are that Kannan, the grandfather of the plaintiffs and Manni, the grandmother, had executed a Will in favour of all their children, including deceased Cheeru, the mother of the plaintiffs. A.S.No. 799 of 1994 2 2. According to the plaintiffs, their mother Cheeru was a legatee in respect of item No.1 in the margin of the will executed by Kannan and wife Manni. Cheeru pre-deceased Kannan on 21.9.1955. Kannan died on 8.9.1956 and Manni died on 13.8.1962. Since the plaintiffs claimed that Cheeru pre-deceased Kannan, her rights had reverted back to the testator and that property bequeathed to Cheeru and which reverted back to the testator again devolved upon all the other children of Kannan and grand children in equal shares. It is that share which is passed on to the heirs on succession and that is the subject matter of Ext.B34 Gift deed dt.15.10.1963. 3. Defendants 1 to 6, who are the legal heirs of deceased Kannan, filed written statement pointing out that they are residing the plaint schedule property known as Thekulla- paramba. The description given in the plaint are not correct. The property was never acquired by Kannan or Manni as alleged in the plaint and they are not in possession of the same. It was A.S.No. 799 of 1994 3 contended that the property was taken on lease by the predecessors of defendants from Koothali Moothavar in the year 1934 on fixing pattom. Thereafter, he made improvements in the property. The jenm right of the property was later vested in the Government. The oral lease was renewed on 16.9.1960 in the name of their predecessor Kanaran. Thereafter, he was paying pattom, revenue etc. till his death on 28.8.1966. The defendants continued in possession. A portion of the property was acquired by the Government. The dispute regarding compensation payable was finalised in L.A.O.P.No. 198 of 1964, to which plaintiffs 2 to 4 were also parties. Defendants 1 to 6 were impleaded in the said proceedings after the death of Kanaran. Plaintiffs 2 to 4 had filed O.S.No. 37 of 1947 before the Munsiff Court, Payyoli, raising similar contentions and seeking compensation for the acquisition of the land. In L.A.O.P. 254 of 1970, the plaintiffs were made parties. The contentions raised by the plaintiffs were negatived as per Ext.B4 judgment A.S.No. 799 of 1994 4 dt.15.3.1977. It was conclusively held in the judgment that the plaintiffs are not entitled to raise any claim over the property. The defendants 1 to 6 further disputed the validity of Ext.B34 Gift Deed. Even if the plaintiffs are found to have right over the property, it is lost by adverse possession and limitation. 4. The plaintiffs and defendants have not adduced any oral evidence. The case was decided on the basis of the documentary evidence, Exts.A1 to A9, B1 to B4 and C1 to C6. On considering the evidence, the trial court came to the conclusion that the plaintiffs have proved their case and therefore passed a preliminary decree for the division of the plaint schedule property, having an extent of 1 acre 21 cents, which has been demarcated as A1 to A4 in Ext.C3 and C4, into seven equal shares and to allot five such shares to the plaintiffs jointly. Against that judgment and decree defendants 1 to 6 filed this appeal. A.S.No. 799 of 1994 5 5. Heard the learned counsel for the appellants and the learned counsel for the contesting respondents. 6. The learned counsel for the appellants submitted that the plaint schedule property is not properly identified and therefore the learned Sub Judge is not justified in decreeing the suit for partition. 7. The relationship between the parties is not disputed. According to the plaintiffs, the plaint schedule property originally belonged to Kannan and his wife Manni. They executed Ext.B33 Will in 1951 bequeathing their properties in favour of their children viz. Chathan, Kanaran, Kunhiraman, Matha, Chirutha, Sankaran and Cheeru. The plaint schedule property was bequeathed in favour of Cheeru. She died on 21.9.1955. The plaintiffs are the legal heirs of Cheeru. Since Cheeru pre-deceased Kannan and Manni, the plaint schedule property reverted back to Kannan. A.S.No. 799 of 1994 6 8. After the death of Kannan, the plaint schedule property devolved upon his remaining six children and the plaintiffs, who are the legal heirs of deceased Cheeru. Subsequently Kunhiraman, Matha, Chirutha and Sankaran assigned their share over the plaint schedule property to the plaintiffs as per Gift Deed dt. 15.10.1963 and thus the plaintiffs claimed five shares out of seven shares over the plaint schedule property. Ext.B33 is the Will executed by Kannan and Manni. As per Ext.B33, item No.4 in that document was set apart to Kanaran, which is described as Mazhathamkunnu Padinjarubhagom parambil thekke khandom 6 ft. kole 36 ¼ x 44 koles sthalam parambu. As per Ext.B33, item No.10 was set apart to Cheeru. That property is described as Mazhuthamkunnu Padinjarubhagom parambil vadakke khandam 6 feet 38 x 41 ½ kole sthalam paramu. According to the plaintiffs, Item No.10 in Ext.B33 is the plaint schedule property, which was originally bequeathed to their predecessor Cheeru. A.S.No. 799 of 1994 7 9. An Advocate Commissioner was deputed by the trial court for identification of the plaint schedule property with reference to the title deeds of the parties. The Advocate Commissioner filed three reports and three plans, which are marked as Exts.C1 to C6. The learned Sub Judge, on considering the documents produced by both sides, arrived at a conclusion that Ext.C3 plan and C4 report would be sufficient to resolve the dispute between the parties. As per Ext.C3 plan the property shown as A1, A2, A3 and A4 would constitute Item No.10 of Ext.B33 Will. The property shown as 'B' in Ext.C3 plan is Item No.4 property in Ext.B33. 10. The learned Sub Judge, on considering the recitals contained in Ext.B33, came to the conclusion that the property shown as A1 to A4 in Ext.C3 would be the Item No. 10 property in Ext.B33 and the property shown as 'B' in Ext.C3 plan is Item No.4 property. As per Ext.C3 plan, the extent of the plaint schedule property is shown as 1.21 acres. The 'B' property A.S.No. 799 of 1994 8 shown in Ext.C3 plan is having an extent of 1.21 ½ acres. In the plaint schedule, the extent of plaint schedule property is given as 2.50 acres. There is no dispute that some portion of the plaint schedule property was acquired by the Government for the purpose of Kuttiady Irrigation Project and the remaining property, having an extent of 1.21 acres is the plaint schedule property. 11. The defendants in the suit had earlier filed a suit as O.S.No. 16 of 1985 before the Sub Court, Vadakara for partition of the properties belonging to deceased Kannan and that suit was decreed in part, which is evident from Ext.A5 judgment and A6 decree in that suit. The present plaintiffs were defendants 23 to 25 in that suit. They contended in the suit that the properties described as Item Nos. 4 and 10 in Ext.B33 would not have been brought for partition in that suit. In that judgment it is stated that those properties were excluded from partition in that suit. A.S.No. 799 of 1994 9 Defendants in the present suit have challenged the genuineness of Ext.B33 Will, which is also negatived in that judgment. 12. Defendants 1 to 6 contend that the plaint schedule property was self acquired property of deceased Kanaran on the basis of oral lease from Koothali Estate and subsequently lease was renewed in 1960 by Ext.B2 written Lease Deed. According to the plaintiffs, deceased Kannan was having leasehold right over the property prior to 1946 and he had executed Ext.A4 Marupattom in in favour of one Koloth Kunhirama Kurup. One Panikkaraveettil Joseph had filed suit as O.S.No. 37 of 1947 before the Payyoli Munsiff Court for recovery of certain items of property with mesne profits against that Koloth Kunhirama Kurup as first defendant. The second defendant was Kannan and third defendant was Kanaran, who is the predecessors of defendants 1 to 6. Another son of Kannan, viz. Kunhiraman, was the 4th defendant in that suit. A.S.No. 799 of 1994 10 13. Exts.A7 and A8 are the judgment and decree in O.S.No. 37 of 1947 of the Munsiff Court, Payyoli. In that judgment it was found that the second defendant Kannan was in possession of the suit property and the first defendant in that suit had no title or interest over that property. In that case it was found that Kannan was the cultivating tenant and that he had made improvements in the property. In that case Kannan was ordered to surrender the property to the plaintiffs on payment of the value of improvements to Kannan. That judgment was slightly modified by Ext.A9 appeal judgment. 14. There is no evidence to show that Kannan surrendered that property to the plaintiffs in O.S.No. 37 of 1947. In the absence of such evidence, the learned Sub Judge is justified in arriving at a conclusion that Kannan continued his possession as cultivating tenant till he died in 1956 after executing Ext.B33 Will in 1951. In view of Exts.A7 to A9, the defendants cannot contend that Kanaran was in possession of the property prior to A.S.No. 799 of 1994 11 1960. The first defendant obtained Ext.B3 purchase certificate from the Land Tribunal, Perambra, which was issued without considering the leasehold right of Kannan. Therefore, that purchase certificate is not binding on the plaintiffs' right over the plaint schedule property. 15. The defendants have raised a contention that the suit is barred by resjudicata in view of the decision in L.A.O.P.No. 198 of 1964, Sub Court, Vadakara. The judgment and decree granted in L.A.O.P. 198 of 1964 had been set aside by this Court in A.S.No. 343 of 1969 as revealed by the judgment in L.A.O.P.No. 254 of 1970. The printed copy of the judgment in L.A.O.P. 254 of 1970 is seen marked as Ext.B4. Para No.7 of Ext.B4 would reveal the subsequent developments on passing a decree in L.A.O.P.No. 198 of 1964. It would further reveal that at the stage of A.F.A. 3 of 1973 the matter was compromised between the parties and a decree has been passed in accordance A.S.No. 799 of 1994 12 with the terms of compromise, for apportionment of the compensation due from the government. 16. In view of that compromise, the defendants cannot contend that the present suit is barred by resjudicata. The defendants have not gone to the witness box to give oral evidence to prove adverse possession pleaded by them. There is no evidence on record to prove that the right of the plaintiffs over the plaint schedule property is lost by adverse possession and limitation. In the absence of such evidence, the learned Sub Judge is justified in finding that the right of the plaintiffs over the plaint schedule property is not lost by adverse possession and limitation. 17. It has come out in evidence that after the death of Kannan, the plaint schedule property devolved upon his six children and the plaintiffs as legal heirs of Cheeru. Kunhiraman, Matha, Chirutha and Sankaran gifted their share over the plaint schedule property as per Ext.B34 Gift Deed. A.S.No. 799 of 1994 13 Thus the plaintiffs have 5/7 share over the plaint schedule property. Therefore, I am of the view that the learned Sub Judge is fully justified in decreeing the suit. The result is that the appeal is liable to be dismissed, as it is without any merit. 18. Accordingly, this appeal is dismissed. The judgment and decree in O.S.No. 11 of 1990 on the file of the Sub Court, Quilandy is confirmed. The parties are directed to suffer their respective cost in this appeal. (M.L. JOSEPH FRANCIS) Judge tm