IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 FAO.No. 135 of 2005() ------------------------------------ AS.64/1998 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.13/1996 of MUNSIFF COURT,HARIPAD .................... APPELLANT(S)/ RESPONDENTS 2, 3/DEFENDANTS 2 AND 3 -------------------------- 1. VIJAYAN, PLASSERIL VEEDU, VETTUVENI MURI, KARTHIKAPALLY VILLAGE. 2. PADMANABHAN VIKRAMAN, DO.DO. BY ADV. MR.P.R.VENKETESH RESPONDENT(S): APPELLANTS, RESPONDENTS 1, 4 TO 8/PLAINTIFFS,D-1,4 ---------------------------- 1. PADMANABHAN NADARAJAN, S.N.NILAYAM, VETTUVENI MURI, KARTHIKAPPALLY VILLAGE. 2. JANAKI, PATHINATTUPARATHOPPIL, ERUCKAVU MURI, KUMARAPURAM VILLAGE. 3. RAJESHWARI, D/O.KARTHIYAYANI, PARAMBIL VEEDU, PALLANA MURI, THRIKKUNNAPUZHA VILLAGE. 4. LEKHA, D/O.KARTHIYAYANI OF DO.DO. 5. BINDHU, D/O.KARTHIYAYANI, OF DO.DO. 6. PADMANABHAN VISWANATHAN, PLASSERIL VEEDU, VETTUVENI MURI, KARTHIKAPPALLY VILLAGE. 7. PADMANABHAN VIJAYAN, DO.DO. 8. PADMANABHAN VIDYADHARAN, DO. DO. FAO. NO.135/2005 9. M.VIJAYAMMA, W/O.ANANDAN, MANGALASSERIL VEEDU, MANGALAM MURI, ARATTUPUZHA VILLAGE. 10. M.VIMALA, W/O.BHARAGAVAN, DWARAKA VEEDU, MAHADEVIKADU MURI, KARTHIKAPPALLY VILLAGE. 11. M.VISHALAKSHY, W/O.SIVARAMAN, SIVAPURAM VEEDU, RAMAPURAM MURI, KEERIKKAD VILLAGE. ADDL. R12 TO R14 ARE IMPLEADED 12. SUMATHI VISWANATHAN, W/O. PADMANABHAN VISWANATHAN, PLASSERIL VEEDU, P.O. HARIPAD, KARTHIKAPALLY VILLAGE. 13. SAVITHA, D/O. PADMANABHAN VISWANATHAN, DO. DO. 14. SARUN, S/O. PADMANABHAN VISWANATHAN, DO. DO. ADDL. RESPONDENTS 12 TO 14 IMPLEADED AS THE L.R.'S OF THE DECEASED 6TH RESPONDENT VIDE ORDER DTD. 9.7.07 IN IA. 69/06. R1 BY ADV. MR.N.GOVINDAN NAIR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.2386/2007 IN FAO NO.135/2005 DISMISSED 09/09/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 135 OF 2005 = = = = = = = = = = = = = = = Dated this the 9th day of September, 2009. J U D G M E N T This appeal is preferred against the judgment of the Addl. District Judge, Mavelikkara in A.S.64/98 of the subordinate judge. By the said judgment the learned District Judge set aside the judgment and decree passed by the Munsiff, Haripad in O.S.13/96 and found that the plaint schedule properties are partible and remanded the case to the trial court for the purpose of impleading other legal representatives of the original owner Karutha kunju. It is against that decision defendants 2 and 3 have come up in appeal. The brief facts necessary for the disposal are as follows. 2. The plaintiffs are the children of one Kochupennu and the defendants are the children of one Padmanabhan. They in turn are the children of Karutha kunju. Karutha kunju was having four children. It is the case of the plaintiffs that the property belonged to Karutha kunju and after his F.A.O. 135 OF 2005 -:2:- death it had devolved upon Padmanabhan and Kochupennu and the plaintiffs and the defendants are entitled to get right over the property as the legal representatives of those two persons. On the contra the appellants namely the defendants would specifically contend that the property described in the plaint schedule property was taken on lease by Padmanabhan and was in enjoyment and possession of the same and had obtained a certificate of purchase for the property and therefore the property is an exclusive property of Padmanabhan which on his death had devolved upon his legal representatives. It is also contended that there was a partition with respect to the property possessed by Karutha kunju as early as in 1123 and the plaint schedule property did not form part and parcel of the partition deed which did indicate that it did not belong to Karutha kunju. The learned trial judge dismissed the case on the ground that the suit is bad for non-joinder of necessary parties and secondly that the properties are not partible. I may like to submit when a Court of law finds that the property exclusively belonged to Padmanabhan, the Court should not have arrived at a conclusion that the suit is bad for non joinder of necessary F.A.O. 135 OF 2005 -:3:- parties. Therefore the trial court has erred in arriving at such a decision. Secondly it is a settled principle that the plea of non joinder is a technical plea. An issue has to be raised and a specific direction has to be given to take steps for non joinder and only on non-compliance of the same the Court is entitled to dismiss the suit on the question of non joinder. It is also not seen done in this case. 3. Now I will refer to the larger issue. The question to be considered is whether the property belong to Padmanabhan exclusively or it is the property which belong to Karutha kunju, the predecessor in interest of the plaintiffs and defendants. The appellate court considered this question in the light of the award passed by the land acquisition officer as well as on the basis of the entries made in the thandaper register. Land acquisition award indicate that the property belong to Padmanabhan and kochupennu, the predecessor in interest of the plaintiffs and defendants. The thandaper did show that over and above Padmanabhan and kochupennu there was another person by name Krishnan. Now these two documents namely Exts.A1 and A2 would indicate that the property belonged to Karutha kunju, the F.A.O. 135 OF 2005 -:4:- predecessor in interest. When confronted with a difficult situation the learned counsel for the appellant contends before me that the Court cannot lost sight of a certificate of purchase issued by the Land Tribunal in favour of Padmanabhan. She would argue before me that under S.72 of the Kerala Land Reforms Act, certificate of purchase is a conclusive proof of tenancy and therefore the person in whose name the certificate stands will confer title on him. Under ordinary circumstances it is a good argument which is liable to be accepted. From a catena of decisions which hold that when a certificate of purchase is obtained by a person who is a co-owner of the property then such certificate of purchase would enure to the benefit of the co-owners and the certificate of purchase stands in the name of one person can be classified and termed as one which is for the benefit of all. There is not even a simple scrap of paper to show that before the issuance of certificate of purchase Padmanabhan was in exclusive possession of the property. If Padmanabhan had taken a lease of the property and was enjoying the property in his individual capacity at least there would be rent receipt to prove the tenancy and over and F.A.O. 135 OF 2005 -:5:- above the same cultivation account to establish his right over the property. It is totally absent in this case. The documents produced are subsequent to the issuance of the certificate of purchase and therefore it will not improve the case of the defendants. On the contra the village records reveal that the property stood in the name of legal representatives of the deceased Karutha kunju which included Padmanabhan, predecessor in interest of the defendants. Therefore I am in perfect agreement with the learned District Judge when he held that the certificate of purchase held by Padmanabhan is only as a co-owner of the property and that the property belonged to Karutha kunju and therefore the legal representatives of him are entitled to right over the property. 4. But a decree for partition cannot be passed straight away in this case for the reason that Karutha kunju had four children and that the property is sought to be divided belonged to him. The legal representatives of all the children are necessary parties to the proceedings. So the learned District Judge correctly found that an opportunity has to be given to plaintiffs to implead all the legal F.A.O. 135 OF 2005 -:6:- representatives entitled to right over the property and then calculate the shares and dispose of the matter in accordance with law. From the discussion made above I do not find any ground to interfere with the decision rendered by the learned District Judge and therefore the appeal lacks merit and the same is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/-