IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 RSA.No. 979 of 2008 --------------------------------- AS.156/2004 of DISTRICT COURT, THALASSERY OS.139/1991 of ADL.SUB COURT, THALASSERY .................... APPELLANTS/RESPONDENTS/PLAINTIFFS:- 1. KARIYIL RADHALAKSHMI,D/O. KARTHIYAYANI AMMA, 57 YEARS, SIVAPURAM AMSOM, KANHILERI DESOM, THALASSERY TALUK. 2. KARIYIL JAYAPRAKASHAN, 41 YEARS, AGRICULTURE, DO. 3. KARIYIL ANITHAKUMARI, 37 YEARS, NO. OCCUPATION, DO. 4. KARIYIL ANANDAVALLI, 34 YEARS, DO. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENTS/APPELLANTS/DEFENDANTS: 1. KARTHIYAYANI AMMA (DIED), 2. PERUVANIYAN VADAKKEDATH PRABHAKARA KURUP, 53 YEARS, ATTENDER IN PAZHASSI PROJECT, KANDAMKUNNU AMSOM, KAITHERI DESOM, MANGATTIDAM PANCHAYATH 11-100). 3. PERUVANIYAN VADAKKEDATH RAMACHANDRA KURUP, 47YEARS, AGRICULTURE DO. (MANGATTIDAM PANCHAYATH 11-63). 4. PERUVANIYAN VADAKKEDATH DEVAKI AMMA (DIED). 5. PERUVANIYAN VADAKKEDATH RADHAKRISHNAN, S/O. DEVAKI AMMA, TEACHER, 44 YEARS, MANGATTIDAM AMSOM DESOM. 6. PERUVANIYAN VADAKKEDATH RAJALAKSHMI D/O. DEVAKI AMMA, 42 YEARS, DO... 7. PERUVANIYAN VADAKKEDATH REMADEVI D/O. DEVAKI AMMA, 40 YEARS, DO... THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.979 of 2008 -------------------------- JUDGMENT The plaintiffs in O.S.No.139/91 on the file of the Sub Court, Thalassery are the appellants in this appeal. They instituted the said suit for partition, inter alia, on the allegations that the scheduled property belong to Peruvaniyan Vadekkedath Thavazhi as per an oral lease of 1947 and thereafter by registered marupattam of 1967 (Exhibit A1 marked before the Land Tribunal); that the property was in possession of one Kunhiraman Nair effecting improvements therein; that the said Kunhiraman Nair is now no more and his legal heirs are the first defendant and her son Bhaskaran Nambiar born to him; that Kunhiraman Nair had married one Thambayi Amma subsequent to the marriage with the first defendant and defendants 2 and 3 are born in the said wedlock; that Bhaskaran Nambiar and the said Thambayi Amma are now no more; that plaintiffs are the children of Bhaskaran RSA 979/08 2 Nambiar; that the suit property is co-ownership property and the plaintiffs have succeeded to the 1/4th share held by Bhaskaran Nambiar on the death of Kunhiraman Nair and that Plaintiffs are not interested in keeping joint possession. On the above allegations, appellants/plaintiffs filed the suit praying for partition of the scheduled property into four equal shares and allotment of one such share to them. 2. On the death of the first defendant on 29.3.1990, the plaint was amended alleging that Bhaskaran Nambiar had predeceased the first defendant; that she was having 1/4 share of her own and after the death of her son her share was obtained by plaintiffs 2 to 4; that plaintiffs are entitled to 1/4 share of the first defendant as well and that they are entitled to ½ share in the plaint schedule property. Thus, the plaintiffs claimed partition and separate possession of their ½ share in the scheduled property. RSA 979/08 3 3. Defendants 2 to 4 filed written statement. According to them, plaintiffs have no partible interest in the scheduled property, though they admitted that the property belonged to Peruvaniyan Vadekkedath Thavazhi. According to them, there was a partition in the Thavazhy in 1984 and the scheduled item was allotted to the share of defendants 2 to 4 and Kunhirama Kurup. The share of Kunhirama Kurup and defendants 2 and 3 was assigned to the fourth defendant and her children Radhakrishnan, Rajalakshmi and Remadevi and now only the fourth defendant and her children have right over the scheduled property. The oral lease and the registered marupattam mentioned in the plaint are false. Kunhiraman Nair never enjoyed the property on oral lease or on marupattam. He did not construct the building in the scheduled property. The property was in the possession of Thavazhy, which owned the property and the house and other improvements were made by the Thavazhy RSA 979/08 4 members. Defendants are not aware of any person by name Narayani Amma and Kunhappa Kurup. It is incorrect to say that Kunhiraman Nair was succeeded by his first wife, namely the first defendant and her son Bhaskaran Nambiar and also his second wife Thambayi Amma and defendants 2 and 3, who are the children born in that marriage. Kunhiraman Nair had put an end to the marriage with the first defendant during his life time and she was no more his wife at the time of his death. She was married to another person after the death of Kunhiraman Nair. As such she was not a legal heir of Kunhiraman Nair. At the time of his death, Thambayi Amma, his second wife was alive. Defendants 2 and 3 were born to Thambayi Amma by Kunhiraman Nair and the fourth defendant was the daughter in the first marriage of Thambayi Amma. If at all the properties are to be partitioned, plaintiffs are entitled to ¼ share and fourth defendant and her children Radhakrishnan, Rajalakshmi and Remadevi are entitled to the RSA 979/08 5 remaining ¾ share. Kunhiraman Nair resided in the scheduled property as he was the husband of Thambayi Amma and he had no right in the property or the house therein. Plaintiffs are not entitled to any share under Kunhiraman Nair. Defendants 5 to 7 subsequently impleaded filed written statement adopting the contentions taken by defendants 2 to 4. 4. On the above pleadings, the trial court raised necessary issues for trial. The questions as to whether Kunhiraman Nair had tenancy right over the scheduled property and as to whether the lease set up by the appellants/plaintiffs was true and correct, which are covered by issues 5 and 6, were referred to the Land Tribunal for finding under Section 125(3) of the Kerala Land Reforms Act. The Land Tribunal rendered a finding vide order dated 7.3.2003 upholding the tenancy right of Kunhiraman Nair over the scheduled property. The finding so rendered by the Land Tribunal was RSA 979/08 6 accepted by the trial court and was appended to the judgment passed by the trial court. In view of the said finding, the court below entered findings on other issues in the suit and passed a preliminary decree in the suit holding that plaintiffs 1 to 4 together are entitled to 3/8 share in the tenancy right over the scheduled property with mesne profits at the rate to be determined in the final decree proceedings from the date of suit till they get possession or for three years from the date of the final decree in the suit, whichever is earlier. Plaintiffs were also permitted to apply for passing of final decree effecting division of the scheduled property by metes and bounds. The preliminary decree so passed by the trial court was assailed by defendants 2, 3 and 5 to 7 filing A.S.No.156/04 before the District Court, Thalassery. The appellate court, which considered the correctness of the finding rendered by the Land Tribunal on reference by the trial court under Section 125(3) RSA 979/08 7 of the Kerala Land Reforms Act, reversed the finding of the Land Tribunal regarding existence of tenancy from 1947 onwards, as contended by the plaintiffs and found that the tenancy set up from 1947 onwards is false and that the finding of the Land Tribunal is unsustainable and consequently, held that the plaintiffs are not entitled to any share in the scheduled property as claimed and dismissed the suit allowing the appeal preferred against the preliminary decree. It is assailing the said judgment of the first appellate court that the plaintiffs have preferred this Regular Second Appeal. 5. It is vehemently contended before me by the learned counsel for the appellants that Exhibit A1 produced and marked before the Land Tribunal is a registered document; that therein reference has been made to the existence of an earlier lease from 1947; that therefore, there was no reason for the first appellate court to disbelieve the tenancy RSA 979/08 8 right set up by the plaintiffs and that upholding the tenancy evidenced by Exhibit A1 from 1947 onwards the preliminary decree for partition should have been upheld. 6. There is absolutely no merit in the contention so advanced. Apart from the recitals made in Exhibit A1 document regarding existence of a leasehold right under an oral agreement from 1947 onwards, there is no iota of evidence to establish the case of oral lease set up by the plaintiffs in relation to the scheduled property. Exhibit A1, in the circumstances, could only be taken as a document brought into existence in 1967 for the purpose of establishing a lease under an oral agreement from 1947 onwards. The first appellate court has analysed the evidence adduced before the Land Tribunal and has come to the conclusion that there did not exist any oral lease as alleged and that the recitals in Exhibit A1 document are incorrect and no lease has ever come into RSA 979/08 9 existence. 7. It is worthy to note that Exhibit A1 document of the year 1967 will not give rise to any valid lease in view of Section 74 of the Kerala Land Reforms Act when the court below has entered a finding to the effect that there was no lease from 1947 onwards as is attempted to be established relying on the recitals in Exhibit A1. When that be so, there is no merit in this Regular Second Appeal and the questions of law attempted to be formulated are not even questions of law and much less any substantial question of law. This Regular Second Appeal, in the circumstances, is devoid of merit and is dismissed. 10th February, 2009 (K.P.Balachandran, Judge) tkv