IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 AS.No. 75 of 1998(C) -------------------- OS.2/1988 of SUB COURT, HOSDRUG .................... APPELLANT(S): -------------- PARAMBAN, SON OF LATE PATTUKARAN KALLALAN AND POLACHI, RESIDNG AT NAGATHUMBADY, PANATHADY VILLAGE, HOSDURG TALUK, P.O. RAJAPURAM BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN RESPONDENT(S): --------------- 1. CHARTHAN, S/O. LATE PATTUKARAN KALLALAN AND POLACHI, RESIDING AT PADI, - DEAD MALOTH VILLAGE, HOSDURG, TALUK, P.O. CHULLI. 2. YELUMBACHY, D/O. -DO- RESIDING IN LALOOR, BELOOR VILLAGE, HOSDURG TALUK, P.O. ATTENGANAM 3. NARKOLAN, S/O. -DO- RESIDNG AT KOOVATHODI, MALOTH VILLAGE, HOSDURG TALUK, P.O.CHULLI 4. THERU, D/O. - DO - RESIDING AT PADI MALOTH VILLAGE, HOSDURG TALUK P.O. CHULLI 5. KARICHI, D/O. DO RESIDING AT PULLADI MALOTH VILLAGE, HOSDURG TALUK, PO CHULLI 6. MATHAR, S/O. -DO- RESIDING AT PADI MALOTH VILLAGE, HOSDURG TALUK, PO CHULLI 7. CHITTA, D/O. LATE KUMBA, RESIDING AT KOOVATHODI, ,MALOTH VILLAGE HOSDURG TALUK, PO CHULLI AS.No. 75 of 1998(C) : 2 : 8. VELLACHI, D/O. DO , RESIDING AT KAPPIL, PANATHADY VILLAGE, HOSDURG TALUK, PO RAJAPURAM 9. ALAMI, S/O. MUNDAN AND VELLA, RESIDING AT PADI, MALOTH VILLAGE, HOSDURG TALUK, PO CHULLI 10. SREEDHARAN, S/O. THERU, RESIDING IN -DO- -DO- 11. KUTTICHAN, BROTHER OF MALAMAKKIL APPACHAN IN -DO- -DO- 12. KAPPIYA VEETTIL RUGMINI, W/O. VEKATHANATH THANKACHAN, RESIDING AT PULLODI, MALOTH VILLAGE, HOSDURG TALUK P O CHULLI 13. PINAKKAT JOHNY, S/O. VARKEY RESIDING AT PADI, MALOTH VILLAGE, HOSDURG TALUK, P.O. CHULLI 14. PINAKKAT JOSE, S/O. DO.....DO.... 15.EDATHINAKATH MATHUKKUTTY, D/O. VARKEY RESIDING AT PULLODI, MALOTH VILLAGE, HOSDURG TALUK P O CHULLI 16. ARAKKAL GRACY, W/O. PAPPU, RESIDING AT BAPPANACHAL, MALOTH VILLAGE, HOSDURG TALUK P O BALAL 17. E. KARTHIYAYINI, S/O. PALLATHAN RESIDING AT CHULLI, MALOTH VILLAGE, HOSDURG TALUK, P O CHULLI 18. BUVIKKANAM ABDULKHADER, RESIDING AT KALLAR, KALLAR VILLAGE, HOSDURG TALUK P O PADIMARUTHU 19. PADIYIL KARICHI, W/O. CHARTHAN RESIDING AT CHULLI, MALOTH VILLAGE, HOSDURG TALUK, PO CHULLI 20. VEKKATHANATH THANKACHAN, RESIDING AT PULLODI, MALOTH VILLAGE, HOSDURG TALUK 21. THANKAMMA, W/O. MICHAEL, RESIDING AT PADIYIL, MALOTH VILLAGE, HOSDURG TALUK, PO CHULLI 22. KANNOTH VEETTIL KARTHIYAYINI, W/O. PALLATHAN, RESIDING AT VELLARIKUNDU HOUSE URUTTIKUNNU, BALAL VILLAGE, HOSDURG TALUK, P O BALAL 23. MALAMMAKKAL THOMAS, S/O. VARKEY RESIDING AT VELLARIKUNDU, BALAL VILLAGE HOSDURG TALUK, P O BALAL AS.No. 75 of 1998(C) : 3 : 24. SUNNY, S/O. STEPHEN, RESIDING AT PADI, BALAL VILLAGE, HOSDURG TALUK, P O CHULLI 25. ANTO, S/O. KUNHAPPU, RESIDING AT PADI, BALAL VILLAGE, HOSDURG TALUK P O CHULLI. ADDL. 26. PALLATHAN, S/O. CHARTHAN RESIDING AT PULLODI, BALLLAL VILLAGE, POST CHULLI, HOSDURG TALUK, KASARGOD DISTRICT ADDL. 27. CHERIYAN, S/O. -DO- -DO- ADDL.28. PAKEERAN, S/O. -DO- -DO- ADDL. 29. MANI, D/O. -DO- -DO- ADDL.30. KARINDALAU, S/O. -DO- -DO- ADDL.31. KATHIYANI, D/O. CHARTHAN RESIDING AT EDAMMRA HOUSE, PUTHOOR VILLAGE (VIA) ANANDASHRAM, KASARGOD, HOSDURG TALUK PUTHOOR ADDL.32. NARAYANI, D/O. -DO-- RESIDING AT THOKKANAM MOTTA, KUNIYA IN PANAYAL VILLAGE, HOSDURG TALUK, POST KUNIYA ADDL. 33. SADANANDAN, S/O. -DO- RESIDING AT PULLODI BALAL VILLAGE, PO CHULLI ADDL. 34. SUBHASH, S/O. DO -DO- ADDL.35. NARAYANI, D/O -DO ADDL.36. SUSHEELA, S/O. DO- RESIDING IN -DO- ADDITIONAL RESPONDENTS 26 TO 36 ARE IMPLEASDD AND 19TH RESPONDENT WHO IS ALREADY IN THE PARTY ARRAY IS RECORDED AS THE LEGAL REPRESENTATIVE OF THE DECEASED RESPONDENT NO.1 VIDE ORDER DATED 24.7.2000 ON C.M.P. 4958/98. BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.T.V.GEORGE SRI.K.P.DANDAPANI, SRI.K.S.DILIP THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON 19/82009 DELIVERED THE FOLLOWING: AS.No. 75 of 1998(C) ORDER ON C.M.P. NO: 596 OF 19998 ON A.S.NO: 75 OF 1998 DISMISSED SD/-(M.L.JOSEPH FRANCIS)(J 19.8.2009 //// TRUE COPY /// M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - A. S. NO: 75 OF 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th Day of August, 2009. JUDGMENT This appeal is filed by the plaintiff in O.S No: 2 of 1988 on the file of the Sub Court, Hosdurg. Respondents 1 to 25 herein are the defendants in that suit. O.S. No: 2 of 1988 is a suit for partition. 2. The facts of the case are briefly as follows: The plaint schedule property originally belonged to Udumbumthala Nalupurappattil Mohammedkunhi in jenm right and the plaintiff's father Kallalan was holding kuzhikanom right and he was in possession and enjoyment of the same effecting improvements. Kallalan was residing in the said property. He had also purchased jenm right in respect of the property in the year 1964, as per a registered document. He had transferred portions of the plaint schedule property to various A.S . NO: 75 OF 1998 :2: persons. The remaining property is shown as the plaint schedule property. On the death of Kallalan, his right over the property devolved upon his children Kumba, the plaintiff and defendants 1 to 6. Kumba died and her legal heirs are impleaded as defendants 7 and 8. There are 8 thatched houses in the property. The 1st defendant is residing in one of the houses. It is learnt that defendants 9, 10 and 11 are residing in three houses with permission of the 1st defendant. They have no manner of right over the property. They have been impleaded to avoid obstruction at the time of delivery. The 1st defendant is in possession and management of the property on behalf of the co- owners. The demand made by the plaintiff for effecting a partition of the property has failed. Hence the suit is filed. Accordingly the plaintiff is entitled to get 1/8th share out of the entire plaint schedule property along with mesne profit and costs. Supplemental defendants 12 to 25 have been impleaded according to the development of the case at various stage. 3. Defendants 2, 3, 7 and 8 had admitted the plaint claim. They are prepared to pay the required court fee for their separate A.S . NO: 75 OF 1998 :3: possession. 4. Respondents 1 and 6 have filed joint written statement contending that the 1st respondent is in possession of 4 acres, which is his self acquisition. He has purchased jenm right vide proceedings in O.A.3682/72 of the Land Tribunal, Kanhangad. To the north of the said 4 acres is the property held by Kallalan, having an extent of 7 acres. The 1st respondent is not in possession of any portion of Kallalan's property. He has no objection in giving the said 7 acres among the legal heirs of Kallalan. His self acquired 4 acres is not liable to be partitioned. The 6th respondent is in possession of 70 cents out of her father's property, wherein she is residing. Subject to the above, they have no objection in effecting the partition. 5. Respondents 9 and 10 have filed written statement contending that respondent No.9 is having 1 acre under Udumbumthala Nalupurappattil mammad. He has also obtained certificate in jenm right vide S.M.P.No.4320/75. Valiya Theru died and his children, including the respondents, are in joint possession of the said 1 acre. The 10th respondent had acquired another 50 cents A.S . NO: 75 OF 1998 :4: from V.P.P.Mohammedkunhi who is the Mukthiar agent of the jenmi. For this 50 cents, the 10th respondent has obtained jenm right vide S.M.No.169/82. He is in exclusive possession of 50 cents. The identity of the property is disputed by them. 6. The 11th respondent has, in his separate written statement, contended that Kallalan had leased out 5 acres out of the total area to the 1st respondent in 1963. Ever since the 1st respondent is in exclusive possession and enjoyment of 5 acres. He had assigned one acre to his brother K.V.Joseph as per document No.3054/72. The said K.V.Joseph assigned this 1 acre to one Thomas, brother of this respondent in 1974. The 1st respondent had assigned another 1 acre to the very same Thomas in the year 1974. Thus, Thomas, who is the brother of this respondent, had obtained 2 acres out of the suit property on kuzhikanom right. They had also purchased jenm right vide O.A.2160/75. Now this Thomas is in exclusive possession of the said 2 acres. This property is not liable to be partitioned. 7. Respondents 12 to 18 had filed joint written statement contending that the 1st respondent was having 4 acres as contended by A.S . NO: 75 OF 1998 :5: respondent No.1. Out of it, these respondents have purchased separate plots from 1st respondent as per registered sale deeds. They are in exclusive possession of the same. They are also residing in the property by constructing thatched houses. They have also effected improvements. The above property is also not liable to be partitioned. 8. Respondent No.20 has also contended that he had purchased 10 cents from the 1st respondent, who got exclusive right over an extent of 4 acres. Therefore, the property purchased by him is not liable to be partitioned. 9. Respondent No.21 has also contended that the 1st respondent was having leasehold right over an extent of 4 acres. Respondent No.16 had purchased 10 cents from him. In turn, she had transferred the said 10 cents to the respondent in 1990. He had also effected improvements and this property is also not liable to be partitioned. 10. The 22nd respondent has contended that he had purchased 70 cents from 1st respondent and he had transferred the same to one Kuttappan. A.S . NO: 75 OF 1998 :6: 11. Respondent No.24 has filed written statement contending that the 1st respondent had exclusive right over an extent of 4 acres and that he had purchased 2 cents and another 57 cents in the year 1993 and 1995 respectively. He is in exclusive possession and enjoyment of the said 59 cents as a compact plot. This property is not liable to be partitioned. 12. Respondents No.1, 6, 9 and 10 had filed additional written statement disputing the identity of the property. 13. Respondent No.11, in his additional written statement, also disputed the identity and extent of the property. The suit is bad for non joinder of necessary parties in the absence of Kannoth Veettil Karthiayani Amma, since Thomas had transferred 1.30 acres to her. 14. The plaintiff had filed a rejoinder contending that the 1st defendant had no independent tenancy right over 4 acres. The said 4 acres originally belonged to their father, Kallalan. 15. In the Sub Court, PW1 and DW.1 to DW5 were examined and Exts. A1 to A9 and B1 to B14 were marked. The learned Sub Judge, on considering the evidence, decreed the suit and a preliminary A.S . NO: 75 OF 1998 :7: decree for partition were passed as follows: “A preliminary decree is granted for the division of the plaint schedule property excluding the properties possessed by defendants to 9 to 24 into 8 equal shares and for allotment of one such share to the plaintiff along with due mesne profit from defendant No. 1 and 6. On payment of court fee, separate share due to each parties shall be granted. Plots at present held by defendants 1 and 6 shall be allotted to their separate share so far as possible subject to payment of owelty money. Findings of the Land Tribunal in R.C.1/92 shall form part of the decree. The mesne profit payable by defendant No.1 and 6 shall be determined and physical partition shall be done by deputing a commissioner in the event of preferring an application for engrossing a final decree. Cost of the suit shall come of the estate. From the circumstances defendants 9 to 24 shall bear their respective cost”. 16. Against that judgment and decree, the plaintiff filed this appeal. 17. Heard the learned counsel for the appellant and the learned counsel for the respondents. A.S . NO: 75 OF 1998 :8: 18. The learned counsel for the appellant submitted that the court below, having rightly found that the plaint schedule properties are properties which were left behind by the deceased Kallalan, ought to have held that the entire plaint schedule property is partible. According to the plaintiff, himself and defendants 1 to 8 are the legal heirs of deceased Kallalan. Kallalan had a kuzhikanom right over an extent of 25 acres in resurvey 146/45 under the Jenmi Udumbumthala Nalupurappattil Mohammedkunhi and that Kallalan purchased jenm right over the entire area in the year 1964 as per original Ext.A1 Sale deed. The plaintiff alleges that Kallalan sold away 12.13 acres to different persons. The plaint schedule property is the remaining 12.12 acres in resurvey No.146/45. Ext.A1 sale deed shows that Kallan obtained jenm right over the entire property in 1964. Defendants 2, 3, 7 and 8 have admitted plaintiff's claim for partition of the entire plaint schedule property. The defendants 1 and 6 claim independent tenancy in respect of 4 acres and 70 cents respectively. The property held by Kallalan, after the selling some portion as per Ext.A2 to A4 sale deeds is 12.12 acres. This plot is the pink shaded portion shown in Ext.A9 A.S . NO: 75 OF 1998 :9: plan. The first defendant claims title over the plot shaded in blue in the plan. The first defendant contends that he purchased jenm right over that portion of the property as per order in O.A. 3682 of 1972. But the first defendant has not produced the purchase certificate. Ext.A7 is the copy of the order in A.A. 163 of 1988 on the file of the Land Reforms Appellate Authority, Kannur showing that the order in O.A.3682 of 1972 was set aside. Ext.A1 would show that Kallalan was holding the tenancy right under Udumbumthala Nalupurappattil Mohammedkunhi and he had purchased jenm right over the entire area of the 25 acres in the year 1964. In view of Ext.A1, the first defendant cannot contend that he had tenancy right under his father Kalllan from 1962 onwards. The claim of tenancy right of defendants was referred to the Land Tribunal under Section 125(3) of the K.L.R. Act. The Land Tribunal as per order in R.C.1/92 found that the defendants have no tenancy right over the plaint schedule property on finding that the document produced by the defendants are bogus. On going through the order of the Land Tribunal, I find no reason to disagree with the finding of Land Tribunal. Since the first defendant has no right over A.S . NO: 75 OF 1998 :10: any portion of plaint schedule property other defendants cannot claim any right under the documents executed by first defendant. On considering this aspect of the matter, the learned Sub Judge found that the plaintiff and defendants 1 to 8 are the owners of the property left by Kallalan and the entire property in the plaint schedule property is liable to be partitioned and that other defendants are strangers. But the learned Sub Judge relying on a decision reported in Sarojini Amma V. Pappi Amma & others (1973 KLT 148) found that the entire plaint schedule property is not available for partition as defendants 9 to 24 are in exclusive possession of some portion of the property. In that decision it was held as follows: “There cannot be a partition of a property unless it is brought into the hotch-pot of the joint family or the co-owners, as the case may be. It is, therefore, necessary in this case to eject the trespassers from the portion of the property which is alleged to have gone out the possession of the joint family before partition could be effected. Sub-section (1) of S.37 is made applicable to a case where the plaintiff is excluded from possession by the other members of the joint A.S . NO: 75 OF 1998 :11: family or other co-owners, and, therefore, it cannot be applied to a case where the property sought to be partitioned is in the hands of trespassers. The present suit really is a combination of two suits, namely, one for partition and the other for ejectment. The courts, while not insisting the plaintiffs to bring two suits, will not, however, allow them to evade payment of court fee for the reason that the reliefs sought are being agitated in one and the same suit. There cannot be a partition of the property in the hands of the trespassers unless it is reduced to possession of the joint family. For this, ad valorem court fee as in any other suit for ejectment has to be paid. To apply the provisions of S.37(1) of the Act to the present case, would defeat the provisions relating to multifariousness contained in S.6 of the Act. That the plaintiffs have been allowed to seek two distinct reliefs in one and the same suit should not result in deprival of the court fee that is due to the State. The argument that the plaintiffs would be unduly burdened with liability to pay court fee does not appear to be correct. Therefore the plaintiffs, who seek partition of the plaint schedule property, a portion of which is in the possession of trespassers have to pay court fee for A.S . NO: 75 OF 1998 :12: ejectment on the value of the entire property in the hands of the trespassers.” 19. The learned counsel for the appellant submitted that the said ruling is not applicable to the facts of the present case as defendants 9 to 24 are claims possession under the first defendant. That argument cannot be accepted in view of the fact that the defendants 9 and 10 are not claiming any right under the first defendant. But they claim independent right directly from the jenmi. 20. In the present case, the court fee is paid under Section 37(2) of the Court Fees Act. Section 37(2) Court Fees Act provides that in a suit for partition and separate possession of joint family property or property owned jointly or in common by a plaintiff who is in a joint possession of such property, fee shall be paid under that Section. Section 37(1) of the Court Fees Act provides that in a suit for partition and separate possession of a share of joint family property or property owned jointly or in common by plaintiff, who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share. It has come out in evidence A.S . NO: 75 OF 1998 :13: that defendants 9 to 24 are in possession of a portion of the plaint schedule property. Since the plaintiff seeks partition of the entire plaint schedule property, a portion of which is in the possession of strangers, he has to pay court fee for ejectment on the value of the entire property in the hands of the trespassers. Since the plaintiff has not paid court fee for ejectment of defendants 9 to 24, the learned Sub Judge is fully justified in finding that the properties, which are in the hands of defendants 9 to 24 are not available for partition. The result is that this appeal is liable to be dismissed, as it is without any merit. 21. Accordingly, this appeal is dismissed. The judgment and decree in O.S.No. 2 of 1988 on the file of the Sub Court, Hosdrug is confirmed. the parties are directed to suffer their respective cost in this appeal. M. L. JOSEPH FRANCIS, JUDGE. dl/