IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 AS.No. 275 of 1999(C) --------------------- OS.8/1995 of ADL.SUB COURT, THALASSERY .................... APPELLANTS: PLAINTIFFS --------------------------------------- 1. PARAKANDI JANAKI D/O RAMAN AGED 59 YEARS, NO OCCUPATION 2. PARAKANDI KUMARAN, S/O RAMAN AGED 54, DRIVER 3. PARAKANDI SAROJINI D/O RAMAN AGED 50 YEARS, COOLIE 4. PARAKANDI CHANDRAN, S/O RAMAN AGED 46, COOLIE 5. PARAKANDI SHYAMALA D/O RAMAN, AGED 42, COOLIE BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.SHEJI P.ABRAHAM RESPONDENTS: DEFENDANTS --------------------------------------------- 1. P.P. KUMARAN(DIED) 2. PUTHIYAPURAYIL KUMARAN, S/O KALLYANI AGED 60 YEARS, COOLIE 3. VAZHAYIL DEVAKI, S/O KORAN AGED 60 YEARS, NO OCCUPATION 4. VAZHAYIL KARUNAKARAN S/O KORAN AGED 45 YEARS, COOLIE 5. VAZHAYIL SASIDHARAN , S/O KORAN AGED 41 YEARS , COOLIE 6. VAZHAYIL LEELA D/O KORAN AGED 39 YEARS , COOLIE 7. VAZHAYIL PADMINI, D/O KORAN AGED 37 YEARS, COOLIE 8. VAZHATIL KAMALA , AGED 35 YEARS D/O KORAN , COOLIE 9. VAZHAYIL SAROJINI D/O KORAN AGED 33 YEARS, COOLIE 10. VAZHAYIL BALAN S/O KORAN AGED 31 YEARS, COOLIE 11. VAZHAYIL VIJAYAN , S/O KORAN AGED 27 YEARS , COOLIE 12. VAZHAYIL LAKSHMI, D/O KORAN AGED 27 YEARS, COOLIE ADV. SRI.M.K.SUMOD FOR R2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P NO. 1949 OF 1999 IN A.S. NO. 275 OF 1999 DISMISSED ORDER IN C.M.P. NO. 3514 OF 1999 IN A.S. NO. 275 OF 1999 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 18.9.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 275 of 1999 ---------------------------------------- Dated this the 18th day of September, 2009 JUDGMENT The Plaintiffs in O.S. No. 8 of 1995 on the file of the sub court, Thalassery are the appellants herein. The suit filed for partition and separate possession was dismissed by the trial court. Hence the appeal The parties hereinafter referred to as plaintiffs and defendants as arrayed in the suit. 2. It is the case of the plaintiffs that the plaint schedule property originally belonged to one K. Kunhiraman The property was obtained by one otherni by executing a registered marupat No. 186/1905 and thereafter the said otherni has been in possession and enjoyment of the plaint schedule property. Subsequent to the death of otherni her right was devolved on her children Karinchi, Kalliyani and Koran and they had been possessing and enjoying the property. Subsequently Karinchi died and her right devolved on her children namely 1st defendant Raman, Cherumarathi. Cherumarathi also died and her right devolved on her sole son Koran. Kalliani also died and her right devolved on her son, the 2nd defendant. Subsequently Raman also died and his right devolved on his children the plaintiffs, and Koran. On the death of Koran his right devolved to his wife and children namely defendants 3 to 7. Thus the plaint schedule properties were enjoyed and possessed jointly by the plaintiffs A.S. No. 275 of 1999 -2- and the defendants. It is submitted by the plaintiffs that the 3rd defendant argued that the plaint schedule property exclusively belonged to her husband late.Koran. In that premise, she had cut and removed one jackfruit tree , one teak tree and one mango tree worth Rs. 5,000/- and now she is attempting to cut and remove the valuable trees and thus committed mischief in the plaint schedule property. The plaintiffs have prayed that the plaint schedule property shall be divided into six equal shares and for allotment of 1/6 to the plaintiffs, 1/6 th share to the 1st defendant and 2/6 th share to the 2nd defendant and the remaining 2/6 th share to the defendants 3 to 12.. The plaintiffs have also prayed for mesne profits and for 2/6 share of the value of the trees worth Rs. 6,000/- cut and removed by the 3rd defendant. 3. The 2nd defendant admitted that the plaint schedule property originally belonged to otherni who is the grandmother of the 2nd defendant and subsequent to the death of otherni the property devolved upon her legal heirs and one among the legal heirs was late.Kalliyani who is the mother of the 2nd defendant. Since 2/6 right over the property devolved upon late Kalliyani, after her death, the said share of property may be allotted to the 2nd defendant. 4. Defendants 4 to 10 and 12 in their written statement denied the allegations in the plaint are false. According to them the plaint schedule property is not identifiable on the basis of the description in the A.S. No. 275 of 1999 -3- schedule. Koran alone had exclusive title and possession over the property and after Koran's death the property belongs to them along with defendants 3 and 11 as their exclusive property ,that they have obtained purchase certificate from the Land Tribunal Kuthuparamba along with defendants 3 and 11and hence they are not liable to pay any share of mesne profits. It is contended that the plaint schedule property exclusively belonged to them and pleaded for the dismissal of the suit. 5. The evidence in this case consists of oral testimonies of PW1, DW1 Exts. A1 to A3, B1 to B5 and Exts. C1 to C3. 6. Ext.B1 is the purchase certificate issued in the name of Koran who is the husband of the 3rd defendant and father of defendants 4 to 12 Ext.B2 is the certified copy of the relevant order passed by the Land Tribunal Koothuparamba. Koran died in the year 1990 .After perusing Ext.B1 purchase certificate, the Commissioner has opined that Ext.B1 tallies with the description of the property shown in the plaint. The trial court held that Ext.B1 to B5 discloses the fact that the said Koran, the predecessor in interest of the defendant 3 to 12, had been enjoying and possessing the plaint schedule exclusively without interference by any of the plaintiffs or defendants 1 and 2 and hence late Koran, was the absolute owner of the plaint schedule property on the strength of Ext.B1 purchase certificate and Ext.B2 order passed by the Land Tribunal, A.S. No. 275 of 1999 -4- Koothuparamba. The trial court also observed that since the plaintiffs have not challenged Ext.B2 order, Ext.B1purchase certificate has become final and conclusive and therefore Koran has become the absolute owner of the plaint schedule property and being the legal heirs of the deceased Koran, defendants 3 to `12 have got exclusive right over the property. The trial court concluded that the plaint schedule property is not available for partition and dismissed the suit. 7. Before this Court the appellants/ plaintiffs have produced an order passed by the Appellate Authority (LR) Kannur, in A.A. 142/1998. The appeal was preferred by the plaintiffs in the suit (appellants herein) against Ext.B2 order passed by the Land Tribunal, Koothuparamba in O.A. 5150/1975. The Appellate Authority held that the late Koran obtained pattayam in collusion with the 11th defendant(Jenmi), undermining the right of the appellants in the plaint schedule property, that the appellants have also right over the plaint schedule property and that Ext.B1 Purchase certificate was issued in favour of Koran without conducting proper enquiry and therefore the Land tribunal has erred in passing Ext. B2 order. The Appellate Authority quashed Ext.B2 order and cancelled Ext.B1 certificate purchase Certificate. The learned counsel for the appellants submitted that the matter is now pending before the Land Tribunal Koothuparamba after remand. According to him the suit was dismissed by the trial court solely on the A.S. No. 275 of 1999 -5- basis of Ext.B1 purchase certificate and Ext.B2 order which were later cancelled by the Appellate Authority in the appeal preferred by the appellants. Since Ext.B1 purchase certificate is cancelled and Ext.B2 order is quashed by the Appellate Authority's order in A.A. No.142/1998, produced by the appellants/plaintiffs and the fact that the matter is now pending before the Land Tribunal Koothuparamba for a fresh adjudication , I am of the view that the judgment and decree passed by the trial court dismissing the suit, requires re-consideration In the result, the judgment and decree under appeal are set aside. The suit is remanded to the trial court for denovo consideration in accordance with law. While re-considering the case the trial court shall take into consideration the claims of the plaintiffs and the order to be passed by the Land tribunal after remand by the Appellate Authority. There will be no order as to costs. The plaintiffs are entitled to refund of the court fee paid in this appeal. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S. No. 275 of 1999 ---------------------------- JUDGMENT 18th September, 2009