IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 AS.No. 49 of 1998(B) ------------------------------ OS.226/1993 of PRL.SUB COURT,THALASSERY .................... APPELLANT(S): 2ND DEFENDANT ------------------------------------------------- K.V.ABDUL SALAM HAJI, S/O. KUNHAYAN HAJI, BUSINESS, RESIDING AT KAMBIL AMSOM, KOLACHERY DESOM, KANNUR TALUK. (DIED) ADDL.A2 TO A14 IMPLEADED. 2. P.T.P.SAINABA, AGED 64 YEARS, W/O. LATE ABDUL SALAM HAJI, SAINABA MANZIL, KAMBIL, KANNUR DISTRICT. 3. P.T.P. ISMAIL , AGED 48 YEARS, S/O. ABDUL SALAM HAJI, DO. DO. 4. P.T.P. THAJUDHEEN, AGED 46 YEARS, S/O. ABDUL SALAM HAJI, DO. DO. 5. P.T.P. NASEEMA, AGED 44 YEARS, D/O. ABDUL SALAM HAJI, DO. DO. 6. P.T.P. KADEEJA, AGED 42 YEARS, D/O. ABDUL SALAM HAJI, DO. DO. 7. P.T.P. MARIYAM, AGED 40 YEARS, D/O. ADUL SALAM HAJI, DO. DO. 8. P.T.P. SUBIDA, AGED 38 YEARS, D/O. ABDUL SALAM HAJI, DO. DO. 9. P.T.P. SAKEENA, AGED 36 YEARS, D/O. ABDUL SALAM HAJI, DO. DO. 10. P.T.P. FATHIMA, AGED 34 YEARS, D/O. ABDUL SALAM HAJI, DO. DO. 11. P.T.P.SAIBUNNISA AGED 32 YEARS, D/O. ABDUL SALAM HAJI, DO. DO. AS. 49/1998 12. P.T.P. ASEERA, AGED 30 YEARS, D/O. ABDUL SALAM HAJI, DO. DO. 13. P.T.P. RAHMATH, AGED 28 YEARS, D/O. ABDUL SALAM HAJI, DO. DO. 14. P.T.P. JASEERA, AGED 26 YEARS, D/O. ABDUL SALAM HAJI, DO. DO. ADDL. APPELLANTS 2 TO 14 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED APPELLANTS NO.1 AS PER ORDER DTD. 30.3.09 IN IA. 465/2009. BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE BY ADVS. SRI.M.KRISHNAKUMAR SMT.PRABHA R.MENON RESPONDENT(S): PLAINTIFF (IST DEFENDANT & DEFENDANTS 3 TO 6) ------------------------- 1. K.V.ABDULLA, S/O. KUNHAYAN HAJI, RESIDING AT MUKICHAL HOUSE, MUZHAKUNNU VILLAGE, AVILAM, VILAKKODE DESOM, THALASSERY TALUK, (THROUGH POWER OF ATTORNEY HOLDER K.V. SAJID, S/O. C.K. AHAMEDKUTTY, K.V.P. HOUSE, P.O. IRIKKUR, KANNUR DISTRICT. 2. K.V.MARIYUMMA, D/O. KUNHAYAN HAJI, RESIDING AT K.V.P. HOUSE, IRIKKUR, TALIPARAMBA TALUK. 3. K.V.MAMMU, S/O. KUNHAYAN HAJI, RESIDING AT MALIYAKKAL HOUSE, MAHE. *4. K.V.MOOSSAN HAJI, S/O. KUNHAYAN HAJI, PATTANNOR AMSOM DESOM, THALASSERY TALUK.(DIED). *5. K.V.FATHIMA, D/O. KUNHAYAN HAJI, R/AT K.V.P. HOUSE, IRIKKUR THALASSERY TALUK(DIED) 6. K.V.ISMAIL, S/O. KUNHAYAN HAJI, K.V.P. HOUSE, IRIKKUR THALIPARAMBA TALUK. (THROUGH POWER OR ATTORNEY HOLDER K.V.MOOSAN HAJI,S/O. KUNHAYAN HAJI) A.S. 49/1998 ADDL. R7 TO R 14 IMPLEADED. **7. C.K.AHAMMEDKUTTY, HUSBAND K.V.FATHIMA, EX-SCHOOL MANAGER, KANJIRODE MAPPILA SCHOOL, SODA VALAPPU, KANJIRODE AMSOM DESOM, KANNUR TALUK, KANNUR DISTRICT.(DIED) 8. K.V.FAZIL, S/O. LATE K.V.FATHIMA, RESIDING AT, K.V.P. HOUSE, IRIKKUR, THALASSERY TALUK. 9. SABIRA, D/O, LATE K.V.FATHIMA, RESING AT DO. DO. 10. FOUZIYA, D/O. LATE K.V.FATHIMA, RESIDING AT DO. DO. 11. SAJI, S/O. LATE K.V.FATHIMA, RESIDING DO. DO. 12. YSDLRRMS, F/O. LSYR K.V.FATHIMA RESIDING DO. DO. 13. NAUFAL, S/O. LATE K.V.FATHIMA, RESIDING AT DO.D O. 14. KADEEJA, AGED 8 YEARS, (MINOR), D/O. LATE K.V.FATHIMA, REP.BY HER GUARDIAN IST RESPONDENT HEREIN. **IT IS RECORDED THAT R7 DIED AND ADDL. R8 TO R14 ARE THE LEGAL HEIRS OF THE DECEASED ADDL. R7 VIDE ORDER DTD. 14/7/08 IN IA. 286/08. THE ABOVE ADDL. R7 TO R14 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R5 VIDE ORDER DTD. 14.7.08. ADDL.R15 TO R20 IMPLEADED 15. C.V.NAFEESA, AGED 50 YEARS, W/O. K.V.MOOSAN HAJI, PATTANNOOR P.O., PATTANNOOR AMSOM, NEAR IRIKKUR BRIDGE, THALASSERY TALUK. 16. SUMAYYA, D/O. K.V.MOOSAN HAJI, AGED 30 YEARS, PATTANNOOR P.O., PATTANNOOR AMSOM, NEAR IRIKUR BRIDGE, THALASSERY TALUK. 17. THANVEER, D/O. MOOSAN HAJI, AGED 26 YEARS, DO. DO. 18. THABSEERA, D/O. MOOSAN HAJI, AGED 24 YEARS, DO. DO. A.S. NO.49/1998 19. MAHIR, D/O. MOOSAN HAJIAGED 20 YEARS, DO. DO. 20. THANSEERA, D/O. MOOSAN HAJI, AGED 18 YEARS, DO. DO. *THE ABOVE ADDL. R15 TO R20 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED R4 VIDE ORDER DTD. 14/7/2008 IN IA. 1231/2003. R1, 3,8-20 BY ADVS. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/12/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.418/1998 IN AS. NO.49/1998 DISMISSED 08/12/2010 SD/- HARUN-UL-RASHID, JUDGE TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- A.S.NO. 49 OF 1998 ------------------------------- DATED THIS THE 8TH DAY OF DECEMBER, 2010 JUDGMENT The 2nd defendant in O.S.No.226/1993 on the file of the Sub Court, Thalassery is the appellant. Plaintiff and other defendants are the respondents herein. The suit was for partition. The trial court passed a preliminary decree for partition directing to divide the plaint schedule property into 12 equal shares and the plaintiff is entitled to get 2/12 shares; defendants 1 and 5 each are entitled to get 1/12 share and defendants 2 to 4 and 6 are entitled to get 2/12 shares each. The court also held that the 2nd defendant is liable to pay mesne profits to the plaintiff and other defendants, the quantum of which will be decided at the time of final decree and that the question of reservation in respect of item No.3 claimed by the 2nd defendant is left open for consideration at the time of final decree. It is ordered that the costs of the suit shall come out of the -2- A.S.No.49/1998 estate. It is further ordered that any of the parties, who have paid court fee, is at liberty to apply for a final decree wherein a commission will be issued to divide the property by metes and bounds within one month from this date and separate allotment of share is subject to payment of court fee. 2. The plaintiff and defendants are children of Kunhayan Haji through his wife, Katheesumma. Kunhayan Haji died in 1976 and Katheesumma in the year 1981. Plaintiff and defendants are their legal heirs. The appellant and some other defendants died during the pendency of appeal and their legal heirs are impleaded herein. It is the case of the plaintiff that the plaint schedule property is the acquisition of Kunhayan Haji in the name of his wife Katheesumma. There are four items of properties. It is pleaded that the 2nd defendant had been meddling with the affairs of Katheesumma and had been taking income from some of the properties. A portion of item No.3 was acquired by the Central Government and compensation had been received by the parties. In the remaining part of item No.3 there are four buildings, two of -3- A.S.No.49/1998 which are houses and two are sheds used as workshops. 3. The 2nd defendant alone contested the suit. He claimed that he was a tenant in respect of item No.3 under his mother as per an oral lease. The said contention was seriously opposed by the mother. The Land Tribunal found that Katheesumma was the tenant entitled to fixity of tenure and that the 2nd defendant has no right over the property. The matter was taken up before various courts including this Court and the Apex Court. It is pleaded that the 2nd defendant is liable to account for income of all the items of properties and that since he had not shared the income even when the mother was alive, he is liable to account for the same. The plaintiff prayed that the property be divided into 12 shares and for a declaration that he is entitled to 2 shares out of 12 shares. It is also pleaded that defendants 1 and 5 are entitled to 1/12 shares each and the other defendants are entitled to 2/12 shares. The 2nd defendant has been taking income after the death of the mother in 1981, as the senior most male member among the children. He is liable to account for income and the -4- A.S.No.49/1998 plaintiff is entitled to 2/12 share out of the amount found to be accounted for. The 2nd defendant alone contested the suit. He claimed right over item No.3 and prayed for dismissal of the suit in respect of item No.3. 4. The common case is that the plaintiff and defendants are the children of Kunhayan Haji and Katheesumma. They are the legal heirs. Ext.A1 is the jenm deed, Ext.A2 is the partition deed. Ext.A3 is the certified copy of the judgment in O.S.No.226/93. Exts.A4 to A7 were also produced in support of the plaintiff's case. After perusing the above-said documents, the court below held that the plaint schedule properties are liable to be partitioned into 12 equal shares and the plaintiff is entitled to get 2/12 shares and other defendants are entitled to share as stated in the preceding paragraphs. Based on the pleadings in the plaint and the evidence tendered by the supporting defendant, who was examined as DW1, the trial court held that the 2nd defendant is liable to pay mesne profits to the plaintiff and other defendants, the quantum of which will be decided at the time of final decree. The -5- A.S.No.49/1998 2nd defendant claimed reservation over item No.3. It is decreed that the question of reservation will be considered at the time of final decree. 5. The learned counsel for the appellant submits that the judgment and decree passed by the trial court is vitiated, since the learned Judge has decreed partition on the wrong assumption that there was a previous suit for partition among the parties and the same has been decreed. He also relied on Exts.B1 to B7 documents and contended that item No.3 of the property is not available for partition, since the appellant was in possession of the same from 1962 onwards, more than 30 years before the partition in 1992, under which the predecessor of the plaintiff and defendants was allotted the same item of property along with the other suit properties. 6. All the questions raised by the parties were examined by the trial court in detail. The trial court also examined as to whether all the properties including item No.3 are available for partition. Ext.A5 is the copy of the order passed by the Apex -6- A.S.No.49/1998 Court in a Special Leave Petition. Ext.A6 is the certified copy of the judgment in A.A.Nos.213/1982 & 214/1982 and Ext.A7 is the certified copy of the order passed by this Court in CRP.No.1983/86. After considering Exts.A1 to A7 and the contentions of the 2nd defendant, the trial court held that the appellant is not entitled to any exclusive right over item No.3. The order of the Land Tribunal, the Appellate and Revisional Forums shows that the appellant has no tenancy right over the property in question. In the circumstances, the decree passed by the court below cannot be successfully agitated by the 2nd defendant in this appeal. The appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge kcv. -7- A.S.No.49/1998