IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 SA.No. 619 of 1996(F) --------------------- AS.23/1992 of SUB COURT, QUILANDY OS.112/1976 of MUNSIFF'S COURT, PAYYOLI .................... APPELLANT(S): (2ND RESPONDENT/SUPPLEMENTAL 6TH DEFENDANT): ----------------------------------------------------------------------------------------------------------- ONGARAKUNNUMMAL CHATHU, CHERAPURAM AMSOM AND DESOM, KOZHIKODE DISTRICT. BY ADVS. SRI.C.P.DAMODARAN NAYAR, SRI.D.KRISHNA PRASAD, SRI.D.NARENDRANATH, SRI.JOJI VARGHESE, SRI.M.HARISHARMA. RESPONDENT(S): (APPELLANTS & 1ST RESPONDENT/PLAINTIFF & DEFENDANTS 1 TO 4): ------------------------------------------------------------------- 1. PUNATHIL MEETHAL KELAPPAN, S/O.KANNAN ALIAS CHERUMAN, MANIYOOR AMSOM, ELAMBILAD DESOM, BADAGARA TALUK. 2. MADATHIL KUNNUMMAL KUNHIRAMAN, S/O.KANNAN, MANDARATHUR AMSOM, KURUMTHODI DESOM, BADAGARA TALUK. 3. NELLACHERRI THAZHA KUNIYIL KANARAN, MANTHARATHUR AMSOM, KURUMATHODI DESOM, BADAGARA TALUK. 4. PUNATHIL MEETHAL NANU, MANIYOOR AMSOM, ELAMBILAD DESOM, BADAGARA TALUK. 5. ONGARAKUNNU KIZHAKKE AMSOM PARAMBIL KALLIANI, CHERAPURAM AMSOM AND DESOM, KOZHIKODE DISTRICT. BY ADVS. SRI.K.MOHANA KANNAN, SRI.JOJI VARGHESE. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.1362/1996 IN S.A.NO.619/1996 DISMISSED 8/06/2010 SD/- HARUN-UL-RASHID, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss HARUN-UL-RASHID, J. ------------------------ S.A.No.619 Of 1996 ---------------------- Dated this the 8th day of June, 2010. J U D G M E N T The supplemental 6th defendant in O.S.No.112 of 1976 on the file of the Munsiff Court, Payyoli is the appellant. Suit is filed for partition and separate possession. Admittedly, the sharers are the plaintiff and defendants 1 to 5. The appellant is the husband of the second defendant. Trial court passed a preliminary decree excluding item No.3 allotting share to the plaintiff and defendants 1 to 4. In the appeal preferred by defendants 1, 3 & 4, the lower appellate court held that item No.3 property is liable to be partitioned and therefore the decree and judgment passed by the trial court is modified. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. The additional 6th defendant is challenging the judgment and decree passed by the lower appellate court to the extent of modification passed by it. The lower appellate court held that item No.3 is also available for partition. Before the appellate court appellant claimed tenancy right in respect of item S.A.No.619 Of 1996 ::2:: No.3. According to him the property was obtained on lease from deceased Kannan alias Cheruman in the year 1945. Deceased Kannan is none other than his father-in-law. Munsiff Court referred the question of tenancy to the Land Tribunal. The Land Tribunal answered the reference upholding tenancy claim of the appellant. Trial court disposed the suit accepting the order of the Land Tribunal. 3. The learned counsel for the appellant/supplemental 6th defendant contended that the lower appellate court without proper consideration of the question involved and on a wrong and erroneous approach set aside the finding of the trial court and directed partition of item No.3 as well. The learned counsel submitted that the said item of property is not available for partition and the conclusions and findings arrived by the lower appellate court are not correct. According to the learned counsel two reasons stated by the lower appellate court cannot stand in the light of the decision reported by this Court in C.R.P.No.2063 of 1988. The appellant contended that the lower appellate court was in error, finding that the appellant was put in possession of the property by deceased Kannan alias Cheruman and that Cheruman had no intention to create a lease in his favour. It is S.A.No.619 Of 1996 ::3:: also contended that the revenue receipts and other documents produced by the appellant really show that he is in possession and enjoyment of the property, that there is no reliable evidence to prove that the appellant is not a tenant entitled to fixity of tenure and further contended that in the absence of any such evidence in support of the contentions raised by the plaintiff the lower appellate ought to have rejected the contentions and should have upheld the findings of the trial court. 4. The lower appellate court examined the contentions of the respective parties. The applicant in O.A.No.1644 of 1970 claimed tenancy right. The additional supplemental 6th defendant's case is that the deceased Kannan who is none other than his father-in-law granted an oral lease prior to 45 years and that he was in absolute possession and enjoyment of the property excluding the legal heirs of deceased Kannan. The case of the plaintiff and defendants 1, 3 & 4 is that the Kannan was holding the property till his death. His legal heirs are holding the property in their capacity as co-owners. Rejecting the contentions of the appellant the lower appellate court rightly held that there is no necessity for serving notice of the proceedings of the Land Tribunal in O.A.No.1644 of 1970 either on the second S.A.No.619 Of 1996 ::4:: defendant or on 6th defendant for the reason that they are residing in the property on the permission of their father and not in the capacity as lessee. The lower appellate court held that the proceedings in O.A.No.1644 of 1970 is not liable to be cancelled for want of notice on the application and further held that service of notice issued in the name of his father-in-law would prevent the appellant from claiming leasehold right over the property. The lower appellate court rightly held that the two reasons stated by the Land Tribunal for cancelling the proceedings in O.A.No.1644 of 1970 are not sustainable. After adjudicating the respective contentions the lower appellate court modified the decree and judgment holding that the right, title and interest once held by deceased Kannan would devolve on the plaintiff and defendants 1 to 4 in equal proportion and therefore itemNo.3 is also available for partition. At the same time the lower appellate court held that the plaintiffs and defendants 2 to 6 are staying in item No.3 schedule property for a considerable time and observed that their possession need not be interfered as far as possible while effecting physical partition of the property in the final decree proceedings. S.A.No.619 Of 1996 ::5:: 5. The lower appellate court examined the materials on record, discussed the respective contentions of the parties and arrived at the right conclusions. I find that the appellant has failed to substantiate his contentions. I agree with the findings recorded by the lower appellate court. Further I am of the view that findings on facts entered by the lower appellate court is not liable to be interfered with in second appeal exercise of the power under Section 100 Code of Civil Procedure. The appellant failed to substantiate his contentions legally. No question of law muchless any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and accordingly dismissed. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-