IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 SA.No. 533 of 1996() -------------------- AS.85/1992 of SUB COURT, PAYYANNUR DT.30.09.1995 OS.57/1986 of MUNSIFF COURT, PAYYANNUR DT.20.3.1992 .................... APPELLANT(S)/RESPONDENTS 5 TO 10 & 12 TO 14/DEFENDANTS 6 TO 11: ------------------------------------------------------------------------------------------------------- 1. POYIRAN KALLIANI, D/O.POYIRAN CHIYICHI AGED ABOUT 49 YEARS 2. POYIRAN PARU, DO- AGED ABOUT 45 YEARS 3. POYIRAN DEVAKI, D/O.-DO- AGED ABOUT 43 YEARS 4. POYIRAN KARTHIANI D/O..-DO- AGED ABOUT 38 YEARS 5. MAPPIDICHERI MADHAVI, D/O.MONDANTHA AGED ABOUT 48 YEARS 6. ARAMANGALAN KARTHIYANI, W/O.DECEASED GOVINDAN AGED ABOUT 41 YEARS 7. CHALAN MADHAVI, AGED 45 YEARS 8. RAJAN, S/O.CHALAN MADHAVI AGED 26 YEARS 9. BABU, S/O.-DO- AGED 23 YEARS BY ADV. SRI.V.RAJAGOPAL SRI.O.V.MUSTAFA ZAFEER SA 533/96 -2- RESPONDENT(S)PLANTIFFS AND DEFENDANTS 2, 3 & 12: --------------- 1. CHERUKUNIYAN VITHAI, D/O.CHOYICHI AGED 66 YEARS, RAMANTHADLI AMSOM DESOM, PAYYANNUR 2. GOVINDAN AED 46 YEARS, S/O.VITHAI -DO- 3. MEENAKSHI, AGED 44 YEARS, D/O. -DO- 4. MADHAVI, AGED 42 YEARS, D/O. -DO- 5. YESODA, AGED 40 YEARS D/O.VITHAI, -DO- 6. SAVITHRI, AGED 38 YEARS D/O. -DO- 7. ADACHERIYAN KALLIANI, D/O.VELLACHI AGED 66 YEARS 8. MODANTHA, D/O.VELLACHI, AGED 62 YEARS 9. ADACHERIYAN PANCHU, D/O.VITHAI AGED ABOUT 56 YEARS ADV. SRI.T.A.RAMADASAN SRI.A.K.ALEX THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON 15.10.2009 DELIVERED THE FOLLOWING: SA 533 OF 1996 ORDER ON CMP NO.1658 OF 1996 IN SA NO.533 OF 1996 DISMISSED 15.10.2009 SD/-P.BHAVADASAN, JUDGE TRUE COPY PS TO JUDGE P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 533 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2009. JUDGMENT Defendants 6 to 11 in O.S. No.57 of 1986 before the Munsiff's Court, Payyannur are the appellants. Parties and facts are herein after referred to as they were available before the court below. 2. The suit was one for partition. According to the plaintiffs, the property belonged to Edacherayan Pokki. Pokki had three children, namely, the first defendant, Choyi and Pokkan. The first plaintiff is the wife of Choyi and the other plaintiffs are their children. It is alleged that on the death of Pokki, his rights devolved on the first defendant, Choyi and Pokkan and on that basis suit for partition was laid. 3. Defendants 4 to 11 contested the suit. They pointed out that the suit property was puramboke property vested with the Central Government and the parties had no title to the property. According to them their predecessor in S.A. 533/1996. 2 interest, namely, Pokkan had obtained possession over the property and he had effected improvements in the property and he was paying tax. They therefore prayed for dismissal of the suit. 4. The trial court framed necessary issues for consideration. Evidence consists of the testimony of P.W.1 and Exts.A1 to A12 from the side of the plaintiffs. The contesting defendants had D.W.1 examined and Exts.B1 to B3 marked. The trial court found that none of the parties had title to the property and that mere possession of the property will not confer title on them. The trial court observed that even though tax receipts have been produced by the defendants, that by itself is not sufficient to confer title on them. Accordingly, the suit was dismissed. The plaintiffs carried the matter in appeal as A.S. No.85 of 1992 before the Sub Court, Payyannur. The lower appellate court chose to hold that title to the property was not established, but passed a preliminary decree as prayed for. The contesting defendants have come up in appeal. The following substantial questions of law S.A. 533/1996. 3 arise for consideration: “(i) Whether the lower appellate court was correct in finding that plaintiffs have title to the plaint schedule properties without any documentary evidence but solely on the basis of the evidence of P.W.1. (ii) Whether the lower appellate court was proper in finding title of the plaint schedule properties on the basis of the pit holes in the case of the defendants. (iii) Whether the principle that the plaintiff should prove title need be departed from in a suit for partition.” 5. It may at once be noticed that the plaintiffs did not set up any title to the property. Their claim is based on possession of the property. The trial court, on an elaborate consideration of the materials before it, had come to the conclusion that the plaintiffs have not established their title to the suit property and that merely because they have produced some tax receipts, it will not confer any title or possession on them. S.A. 533/1996. 4 6. The lower appellate court also does not find that the plaintiffs have title to the property. The property had been acquired for the Naval Academy and it is a Central Government property. But surprisingly enough, the court below found that the plaintiffs and defendants are presumed to be in joint ownership and possession of the property and it was on that basis that the suit was decreed. 7. It trite that in order to seek partition of the property, the parties will have to establish prior title over the property. Merely because there are some documents produced by the parties, that will not by themselves confer title on them. It is interesting to note that when the court below found that the property, which is the subject mater of the suit is a puramboke land and it was acquired by Naval Academy, one fails to understand how the suit was decreed in favour of the plaintiffs. May be that the defendants have not been able to establish the claim put forward by them. But that does not mean that, that confers title on the plaintiffs. There is S.A. 533/1996. 5 nothing to show that the plaintiffs have been able to establish the title set up by them. The trial court was therefore fully justified in holding that the plaintiffs are not entitled to any relief. The first appellate court was erred in law in holding that the plaintiffs were entitled to a decree for partition. In the result, this appeal is allowed, the judgment and decree in A.S. No.85 of 1992 are set aside and the judgment and decree of the trial court stand restored. No order as to costs. P. BHAVADASAN, JUDGE sb. S.A. 533/1996. 6 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 533 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 15.10.2009.