IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 AS.No. 718 of 1998 -------------------- OS.143/1990 of ADL.SUB COURT, THALASSERY .................... APPELLANT/6TH RESPONDENT ---------------------------------------------- K V RAMADASAN, RADIO REPAIRER RESIDING AT 16 MOUNT ROAD SAIDAPET, MADRAS -15 BY ADV. SRI.T.G.RAJENDRAN RFA.A.K.ALEX RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 5 AN D7 TO 14 ------------------------------------------------------------------------------------------ 1. VENGARA CHERIYA, D/O.MADHAVI )( DIED & LRS RECORDED RESIDING IN PANNAYANPARA, KANNUR DISTRICT 2. K NANI AMMA, D/O.CHANDU, RESIDING AT PRESENT AT 16, MOUNT ROAD SAIDAPET, MADRAS -15 3. K.SANTHA, W/O.VIJAYARAGHAVAN RESIDING AT -DO- 4. K V SONITA, D/O.K V VIJAYARAGHAVAN RESIDING AT -DO- 5. K V SANJAI, S/O.K V VIJAYARAGHAVAN -DO- 6. K V RAMAKRISHNAN, S/O.NANI AMMA RESIDING AT 16 MOUNT ROAD SAIDAPET, MADRAS -15 7. CHIMMINIYAN PEECHALI YESODA W/O.LATE KRISHNAN VYDIAR, RESIDING IN ELAYAVOOR AMSOM, CHOVVA DESOM CANNANORE TALUK AS 718/98 -2- 8. C P PADMAJA, D/O.YESODA, RESIDING -DO 9. SISTER SHYLAJA, RESIDING -DO 10. SISTER PREMAJA, -DO 11. SISTER PUSHAPAJA -DO- 12. BROTHER BALAKRISHNAN, RESIDING -DO- 13. SISTER SUMAJA, RESIDING -DO 14. SISTER MAHIJA, -DO- (IT IS RECORDED THAT 1ST RESPONDENT DIED AND RESPONDENTS 2 TO 6 AND APPELLANT WHO ARE ALREADY ON THE PARTY ARAY ARE THE LEGAL HEIRS BY DECEASED OF 1ST RESPONDENT AS PER ORDER DT.16.8.2011 IN MEMO DT.18.3.2010 CF 1811/10) ADV. SRI.K.SHIBILI NAHA FOR R9 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18.11.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- A.S. No.718 of 1998 ------------------------------------- Dated this the 18th day of November 2011 Judgment The plaintiff in a suit for partition is the appellant. 2. The plaint schedule property admittedly belonged to one Madhavi who had three children namely Kunhikelu, Narayani and Cheriya - the plaintiff. The case of the plaintiff is that on the death of Madhavi, the property acquired by her under Ext.A1 devolved on her three children. Narayani later died as spinster and the plaintiff claimed that her share also devolved on the plaintiff. The properties were under the joint possession of the plaintiff and defendants 1 to 6. Since the plaintiff did not wish to continue joint possession of the properties, she laid the suit for partition of the property claiming 2/3rd share. 3. Defendants 1 to 6 remained ex parte. The seventh defendant contested the suit. In her written statement, she pointed out that the suit is an experimental AS 718/98 2 one and lacks bona fides. It is admitted by the seventh defendant that the jenm right over the property originally belonged to Basal Mission from whom Madhavi had taken the property on kuzhikanam right as per Ext.A1. The contention was that Madhavi by virtue of Ext.B1 dated 14.8.1942, assigned the property in favour of her son Kelu. Eversince the execution of Ext.B1, Kelu had been in exclusive possession and enjoyment of the property. On the death of Kelu, his rights devolved on his wife and children. They leased the property on verumpattom right to one Krishnan Vydiar as per a deed dated 28.08.1952. Eversince then, the said person is in exclusive possession and enjoyment of the property. The legal heirs of late Kelu instituted OS No.687/62 before the Munsiff's Court, Kannur for recovery of possession and for value of the improvements and the house in the property leased to Krishnan Vydiar and also for arrears of rent and damages. Krishnan Vydiar resisted the suit. He claimed fixity of tenure, which was accepted by the court and the suit was AS 718/98 3 dismissed. The plaintiffs carried the matter in appeal, but without success. Later on, Krishnan Vydiar filed OA No.283/73 before the Land Tribunal showing the LRs of late Kelu as the intermediary. The OA was allowed, from which an appeal was filed by the respondents in the OA as AA No.1150/74. The appeal was dismissed confirming the findings of the Land Tribunal. The seventh defendant and her children own and possess the property as successors of Krishnan Vydiar. Narayani and the plaintiff have no manner of right over the suit property. On the basis of these contentions, the seventh defendant prayed for dismissal of the suit. 4. None of the other defendants filed any written statement. 5. On the above pleadings, necessary issues were raised. Evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 to B6 marked. AS 718/98 4 6. On an appreciation of the evidence in the case, the court below found that there was no subsisting right in favour of the plaintiff to seek partition and accordingly dismissed the suit. The said judgment and decree are assailed in this appeal. 7. The question that arises for consideration is whether the finding of the court below that the property belongs to the seventh defendant is justified in law. 8. The learned counsel for the appellant pointed out that the court below has not considered the evidence in the proper perspective and has misdirected itself both on facts and in law. The document showing the assignment in favour of Krishnan Vydiar has not been produced and that aspect has not been noticed by the court below. It is also pointed out that it is incompetent for Madhavi to execute a deed in favour of Kelu as she did not have exclusive right over the property. These aspects have a bearing on the issues involved in the suit and therefore, the judgment and decree of the court below are liable to be set aside. AS 718/98 5 9. There is absolutely no merit in any of the above contentions. Even as admitted by the plaintiff, the suit property exclusively belonged to Madhavi, who obtained it under Ext.A1. The claim is that on her death, the property devolved on her three children, one among whom was the plaintiff. The further case of the plaintiff is that Narayani is her sister, who died as a spinster and her rights also devolved on the plaintiff. In the written statement, the seventh defendant had clearly pointed out that the plaintiff had no subsisting right over the suit property. In spite of this categoric averment in the written statement showing that the plaintiff had no subsisting interest in the property, there was no attempt to assail Ext.B1 or to show that the purchase certificate obtained by Krishnan Vydiar is not valid in law. The witness examined on behalf of the plaintiff was unable to give proper information regarding the property. She seems to have no idea about the various transactions. AS 718/98 6 10. The seventh defendant has pointed out that Madhavi had assigned the property in favour of her son as per Ext. B1. This document is not challenged by the plaintiff. The further case of the seventh defendant was that while the property was outstanding with Kelu, one Krishnan Vydiar took the property on lease in 1952 and he was enjoying the property thereafter. It has come out in evidence that after the death of Kelu, his legal representatives had instituted a suit against Krishnan Vydiar for recovery of possession of the property and for other reliefs. That suit was dismissed, holding that Krishnan Vydiar was entitled to fixity of tenure. The appeal filed against that judgment was also dismissed. Thereafter, it appears that Krishnan Vydiar moved the Land Tribunal for assignment of the right over the suit property. That was allowed. It is significant to notice that defendants 1 to 6 were shown as the intermediaries in the original application. Defendants 1 to 6 preferred an appeal before the appellate authority against the order of the Land AS 718/98 7 Tribunal, granting purchase certificate. The appeal was dismissed. Therefore, the order of the Land Tribunal assigning right over the suit property to the predecessor-in- interest of the seventh defendant has become final. None of these proceedings are challenged by the plaintiff and the plaintiff has no explanation for those proceedings. It cannot be said that she can simply ignore the proceedings especially when there is no challenge to Ext.B1 by which Madhavi assigned property to Kelu. 11. From the above, it is clear that the plaintiff has no subsisting interest over the suit property and the lower court rightly found against her. 12. It is difficult to accept the finding regarding adverse possession and limitation by the court below. In fact, the title to the property was found in favour of the seventh defendant and thereafter, there was no need to consider the question of adverse possession and limitation. Whatever that be, it is clear from the evidence on record that the plaintiff has no right to seek partition or she has no AS 718/98 8 subsisting right over the suit property. Therefore, the court below has rightly dismissed the suit. There is no merit in the appeal and it is accordingly dismissed. No order as to costs. P.Bhavadasan, Judge sta AS 718/98 9