IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 SA.No. 396 of 1994(E) ------------------------------- AS.43/1988 of SUB COURT, TIRUR OS.112/1984 of MUNSIFF COURT, PARAPPANANGADI .................... APPELLANT: (PLAINTIFF - APPELLANT IN THE LOWER APPELLATE COURT ) ------------------ A.K.KOYAMU, S/O. CHEKKUTTY, P.O. IRINGALLUR, VIA, VENGARA, MALAPPURAM DISTRICT. BY ADV. SRI.P.SANJAY SRI.A.PARVATHI MENON RESPONDENTS: (DEFENDANT BNOS. 2 TO 8 , 10 TO 15, 18 AND LEGAL ----------------------- REPRESENTATIVES OF IST DEFENDANT IN THE TRIAL COURT RESPONDENTS NOS. 2 TO 8,10 TO 15, 17 AND LEGAL REPRESENTATIVES OF THE IST RESPONDENT IN THE LOWER APPELLATE COURT.) 1. CHORONNU, D/O. KURUNHIKKATTIL KUNHIKANNAN, P.O. IRINGALLUR, VIA VENGARA, MALAPPURAM DISTRICT. 2. VELUKUTTY, S/O. DO. DO. 3. BALAKRISHNAN, S/O. DO. DO. 4. PARAMESWARAN S/O. DO. DO. 5. NARAYANAN, S/O. DO. DO. 6. K.DAMODARAN, C/O. M.NOUSHAD, P.B. NO.329, AL DEWADMI 119 11, K.S.A. 7. KUNHILAKSHMI, D/O. KURUNHIKATTIL KUNHIKANNAN P.O. IRINGALLUR , (VIA), VENGARA, MALAPPURAM DISTRICT. 8. KUNCHU, S/O. THAMIKUTTY, KURUNHIKKATTIL HOUSE, DO. DO. 9. GOPALAN , S/O. DO. DO. SA. NO.396/1994 10. YASODA, W/O. KRISHNAN VAIDYAR, ARYA VAIDYAN, P.O. THENNALA, (VIA), EDARIKODE, MALAPPURAM DISTRICT. *11. BHASKARAN, S/O. THAMIKUTTY, KURUNHIKKATTIL HOUSE, P.O. IRINGALLUR (VIA) VENGARA, MALAPPURAM DISTRICT. (DIED) *12 CHERIYATHU, W/O. DO. DO.(DIED) 13. GANGADHARAN, S/O. SANKUNNI, MALAPPURAM MUNICIPAL COMFORT STATION P.O., MALAPPURAM 676 505, MALAPPURAM DISTRICT. *14. CHINNA ALIAS KUNHI, D/O. THEYYAKUTY, KURUNHIKKATTIL HOUSE, P.O., IRINGALLUR, (VIA) VENGARA, MALAPPURAM DISTRICT (DIED). 15. GOPALAN, S/O. THAMI, PADINHAREPURAKKAL, PAYYANANGADI P.O., TIRUR, MALAPPURAM DISTRICT. 16. KRISHNAN, S/O. DO.D O. 17. SREEDHARAN, S/O. DO. DO. 18. CHENAKKAL MADHAVI, W/O. GOPI , P.O. OLAMATHIL, MONGAM, MALAPPURAM DISTRICT. 19. MOOTHATTUPARAMBIL DEVAKI, W/O. KRISHNAN VAIDYAR, P.O. THANALOOR, MALAPPURAM DISTRICT. 20. GOPALAN P.O., POST BOX NO.61785, DUBAI, U.A.E. ADDL. R21 TO R25 ARE IMPLEADED. 21. K.SANTHAKUMARI, W/O. BHASKARAN VAIDYAR, KURUNHIKKATTIL HOUSE, P.O. IRINGALLUR , VIA. VENGARA, MALAPPURAM DISTRICT. 22. K.PRAMEETHA , D/O. BHASKARAN VAIDYAR, BHASKARAN VAIDYAR, KURUNHIKKATTIL HOUSE, P.O. IRINGALLUR , VIA. VENGARA, MALAPPURAM DISTRICT. SA. NO.396/1994 23. K.SANTHAKUMAR, BHASKARAN VAIDYAR, KURUNHIKKATTIL HOUSE, P.O. IRINGALLUR VIA, VENGARA, MALAPPURAM DISTRICT. 24. K.PRAMOD, SON OF BHASKARAN VAIDYAR, KOTTAKKAL ARYA VAIDYASALA FACTORY, P.O. KANJIKODE, PALAKKAD, PALAKKAD DISTRICT. 25. K.CHANDINI, D/O. BHASKARAN VAIDYAR, W/O. ANIL KUMAR, MELE CHAKKANMADU HOUSE, P.O. CHELAMBRA, MALAPPURAM DISTRICT. ADDL. RESPONDENTS 21 TO 25 ARE IMPLEADED AS THE LRS OF DECEASED 11TH RESPONDENT AS PER ORDER DT. 15.1.04 ON IA. 1275/03. * THE APPELLANT IS EXEMPTED FROM THE NECESSITY OF IMPLEADING THE LEGAL REPRESENTATIVE OF DECEASED 14TH RESPONDENT AS PER ORD DT. 15.1.04 ON IA. 1276/03. * R12 DIED IT IS RECORED THAT R8 TO R11 ARE LEGAL HEIRS OF THE DECEASED 12TH RESPONDENT AS PER ORDER DT. 23.11.07 ON MEMO. BY ADV. SRI.K.P.DANDAPANI - R21 TO R25 SMT.SUMATHY DANDAPANI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A.NO. 396 OF 1994 ------------------------------------------ Dated 11th February 2008 J U D G M E N T Plaintiff in O.S.112/1984 on the file of Munsiff court, Parappanangadi is the appellant. Respondents are the defendants. Suit was filed for partition and separation of 1/5th share in the plaint B schedule property. According to the appellant, plaint schedule property originally belonged to Kurunhikkattil Tharavadu in jenm right and it is in patta No.276. After the death of Kurunhikattil Achakutty, Kunhitheyan was the last pattayam holder and after his death patta was changed in the name of Cheriya, Kunhikkannan, Thamikutty, Sankunni and Raman, brothers of Kinhitheyyan and later 13th defendant fabricated some records and got the patta transferred in his name without the knowledge of other co-owners and therefore that change of pattayam was invalid. It was contended that Kurunhikattil Tharavad is followers of Makkathayam as they are members of Hindu Perumannan caste. Case was that Kunhitheyyan died 2 without a wife or issues and Cheriya assigned his undivided 1/5 share in favour of Edayattu Nedumpurathu Govindan Nair under registered assignment deed of 1961 and Govindan Nair has been in possession of the property and while so, after his death his legal heirs under Ext.A2 assignment deed, in 1977, assigned their right in favour of the appellant and therefore appellant has 1/5 share in the plaint schedule property. It was contended that Kunhikannan died and on his death defendants 1 to 8 children and 9th defendant widow inherited his rights. So also Thamikutty died in 1969 and his rights devolved on 14th defendant widow and defendants 10 to 13 children. Sankunni died in 1968 and his rights devolved on 16th defendant widow and 15th defendant son. Raman is the 17th defendant and his sister is 18th defendant. Contending that appellant is in joint possession of the property and is not willing to continue joint possession, partition and allotment of the share was sought for. 2. 13th defendant resisted the suit contending that appellant has no right over plaint schedule property and patta was changed in his name without conducting proper enquiry. It was also contended that neither Govindan Nair nor Cheriya had any right in the property and Cheriya 3 executant of Ext.B4 is not a member of the Tharavad and under Ext.B4 Govindan Nair did not derive any right and under Ext.A2 appellant also did not derive any right and suit for partition is not maintainable. It was contended that plaint schedule property has been in the exclusive possession of 13th defendant and son of 9th defendant instituted a suit against 13th defendant earlier which was resisted by 13th defendant and the court had dismissed that suit. It was also contended that 13th defendant had filed O.A.121/1981 before the Land Tribunal, Parappanangadi to shift kudikidappu occupied by defendants 3 to 9 from plaint B schedule property and the Land Tribunal ordered to shift kudikidappu and the amount necessary for shifting kudikidappu was deposited and a registered document was executed and shifted defendants 3 to 9 colluded with appellant and instituted the suit. It was also contended that if the appellant had any right in the plaint schedule property he would have taken steps to shift the kudikidappu and plaint B schedule property originally belonged to Kurunhikkattil Tharavadu and after the death of members of the Tharavad, Thamikutty father of 13th defendant and Kunhikkannan obtained the property. They divided the property through mediators and Thamikutty obtained assignment of the right 4 of Kunhikannan in 1953 under Ext.B1 registered release deed and subsequently Thamikutty gifted the property in favour of 13th defendant under Ext.B2 gift deed and since then 13th defendant has been in exclusive possession of the property and appellant or other defendants have no right. Defendants 4 to 9 filed written statement supporting the case of the appellant and seeking allotment of 1/5 share due to the rights originally belonged to Kunhikannan. 15th defendant also filed written statement supporting plaint allegation and allotment of the share. 3. Learned Munsiff on the evidence of Pws.1 to 3, Dws.1 and 2, Exts.A1 to A6 and B1 to B18 dismissed the suit holding that based on Ext.A1 Cheriya, Thamikutty, father of 13th defendant Kunhikannan etc. have title to the property but appellant who raised his claims under Exts.B4 and A2 did not establish that Govindan Nair obtained possession of the property and therefore evidence establish that 13th defendant has been in exclusive possession of the property and therefore right of the appellant is lost by adverse possession. Suit was dismissed. 4. Appellant challenged the judgment before Sub court, Tirur in A.S.43/1988. Other defendants who 5 claimed share did not file appeal challenging the rejection of the share. They did not file any cross objection also. Appellant contended before the first appellate court that courts below erred in non suiting them on the ground of adverse possession in the absence of such plea and evidence regarding ouster and therefore share should have been alloted to them. Learned Sub Judge on re-appreciation of evidence found that finding of the trial court was based on Ext.A1 and change in Ext.A1 was effected after Ext.B1 at a time when Cheriya had already assigned his right in favour of Govindan Nair and therefore based on the change of names in Ext.A1 it cannot be said that properties belonged to the persons shown therein. Finding that there is no evidence to prove that Cheriya was a member of Tharavad and entitled to a share, learned Sub Judge dismissed the appeal. It is challenged in the second appeal. 5. Appeal was admitted formulating the following substantial questions of law. 1) When the title to the fractional share is proved by the plaintiff by Exts.A2 and B2 documents, whether that right could be denied on the ground that plaintiff or his predecessor did not obtain actual 6 possession of the property. 2) When Ext.A1 patta establish that assignor under Ext.A2 has fractional interest in the plaint schedule property, whether first appellate court was justified in holding that plaintiff did not establish his right. 3) When the appellant had 1/5th right in the plaint schedule property and 13th defendant has no case that the right of the appellant was lost by ouster and adverse possession, whether courts below were justified in not granting a decree for partition. 6. Learned counsel appearing for appellant and contesting respondents were heard. 7. Arguments of learned counsel appearing for appellant is that only document which throws light into the derivation of the title is Ext.A1 and fact that plaint B schedule property originally belonged to Kurunhikkattil Tharavadu was admitted by all the parties and under Ext.A1 the property originally belonged to Perumannan Kunhitheyyan and on his death properties were changed in the name of the legal heirs of Cheriya, Kunhikannan, Thamikutty, Sankunni and Raman and the appellant is the assignee from Govindan Nair who in turn 7 purchased the rights of the Cheriya under Ext.B4 in 1961 and therefore the appellant has 1/5th right and remaining 4 shares vests with legal heirs of Kunhikannan, Thamikutty, Sankunni and defendant No.17 Raman. Defendants 1 to 8 are the children and 9th defendant is the widow of Kunhikannan and therefore they are entitled to 1/5 share. 14th defendant is the widow and defendants 10 to 13 are legal heirs of Thamikutty and they are entitled to 1/5 share. Defendants 15 and 16 are legal heirs of Sankunni and they are entitled to 1/5 shares. 17th defendant Raman and is entitled to 1/5 share and courts below should not have relied on the subsequent to the change of the patta in favour of 13th defendant and it should have been found that plaint schedule property is available for partition. Learned counsel appearing for contesting respondents argued that there is no evidence to prove that Cheriya, who assigned right to Govindant Nair under Ext.B4 is the Cheriya referred to in Ext.A1 and therefore appellant who is claiming right under Ext.A2 obtained from legal heirs of Govindan Nair, cannot claim any title to the property and courts below rightly dismissed the suit. 8. Being a suit for partition it is for the appellant to establish that plaint schedule property is 8 a property available for partition. When it is admitted case that property originally belonged to Kurinhikkattil Tharavadu, unless appellant could establish that Cheriya, the assignee in Ext.B4 is one of the members of Kurinhikkattil Tharavadu who is entitled to share, appellant is not entitled to a decree for partition sought for. What was claimed in the plaint is that plaint schedule property originally belonged to Kurinhikattil Tharavadu and they are followers of Makkathayam system of law and Kunhikannan died without leaving behind the widow or children and on the death of Cheriya his property was left with five members of the joint family who are the persons shown in Ext.A1. Geneology was also filed along with the plaint as A schedule. As per geneology on the death of Kunhitheyyan his rights devolved on Achakutty, Kunhikkannan, Thamikutty, Sankunni and Raman and Cheriya is the son of Achakutty. It is from that Cheriya, Govindan Nair purchased the right under Ext.B4 which was subsequently assigned by his legal heirs in favour of the appellant. If the geneology is correct, Cheriya the assignor under Ext.B4 is the brother of Kunhikannan, Thamikutty, Sankunni and Raman. Ext.A1 does not show the exact relationship of the five persons in whose names patta was changed 9 subsequent to the death of Perumannan Kunhitheyyan. It shows that they are brothers of Kunhitheyyan. If that is correct, Cheriya is the brother of Kunhikannan, Thamikutty, Sankunni, Raman. Ext.B1 is a sale deed executed by Kunhikannan in favour of Thamikutty. It is the case that Kunhikannan and Thamikutty are same Kunhikannan and Tamikutty referred to in Ext.A1. As per Ext.B1 Kunhikannan is the son of Perumannan Velu of Kurinhikattil Tharavad and Thamikutty is the son of Perumannan Kunjappa who is also a member of same Tharavadu. What is stated in Ext.B1 is that the property which originally belonged to Tharavad as per a partition was allotted to the share of Kunhikannan which was released in favour of Thamikutty under said document in 1953. Ext.B2 is a gift deed subsequently executed by Thamikutty the assignee under Ext.B1 in favour of 13th defendant who is none other than the son of Thamikutty. What is stated in Ext.B1 is that the property which originally belonged to Thamikitty was belonged to Thamikutty and Kunhikannan and were divided by mediators and thereafter under Ext.B1 rights of Kunhikannan was purchased by Thamikutty and that right is gifted to 13th respondent. Ext.B1, a document of 1953, establish that Kunhikannan and Thamikutty are not the children of same 10 father. When the father of Velu is Kunhikannan, father of Thamikutty is Kunjappa. If that be so, recital in Ext.A1 that Kunhikannan and Thamikutty along with Cheriya, Sankunni and Raman are brothers of Kunhitheyyan cannot be true. 9. Ext.B4 shows that Cheriya the assignor who assigned the right in favour of Govindan Nair was the son of Achakutty. If that be so, when Exts.B1 and B2 show that father of Thamikutty and Kunhikannan are different, Ext.A2 show father of Cheriya is also different namely Achakutty. Plaint does not trace out the title or relationship between Achakutty, Velu and Kunjappa. When the partition of plaint schedule property is sought for, on the basis that plaint schedule property belongs to Kurinhikattil Tharavad and it belonged to five joint families and each of them have one share, it is for the appellant to trace out the relationship. In the absence of the evidence to prove that Cheriya referred to under Ext.A2 is Cheriya shown as brother of Kunhitheyyan in Ext.A1, appellant is not entitled to claim share in the plaint schedule property. If we are to proceed on the basis of Ext.A1, Cheriya could only be a brother of Kunhitheyyan, Kunhikannan and Thamikutty. There is no case for appellant that Cheriya, Kunhikannan, Thamikutty, 11 Sankunni and Raman in whose name patta was transferred after the death of Kunhitheyyan are the children and brothers of Kunhitheyyan. In such circumstances, it is not possible to hold that Cheriya who assigned the property under Ext.B4, is Cheriya shown in Ext.A1 or that appellant obtained right or title to plaint schedule property. No acceptable oral evidence was also adduced to prove the relationship. Though the appellant was examined as PW1 he is only an assignee from the legal heirs of Govindan Nair. PW2 one of the legal heirs of Govindan Nair, though examined, expressed his ignorance about the relationship. Therefore there is no evidence to prove that appellant derived any right to plaint schedule property. As Ext.A1 does not establish that Cheriya shown in Ext.A2, has any right in the property I do not find any reason to interfere with the findings of courts below that appellant is not entitled to share in the plaint schedule property. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE. uj. 12 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.396 OF 1994 11th January 2008 ============================