IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 RSA.No. 471 of 2008 ------------------------ AS.6/2006 of SUB COURT, HOSDURG OS.431/2001 of MUNSIFF COURT, HOSDURG .................... APPELLANTS/APPELLANTS/DEFENDANTS:- ---------------------------------------------- 1. KUNIRAMAN, AGED 67 YEARS, S/O LATE VALIYAVEETTIL POKKEN HOTEL EMPLOYEE, ASHOKA HOTEL, KOTTACHERI, BELLA VILLAGE P.O. KANHANGAD. 2. KRISHNAN, AGED 63 YEARS, S/O VALIYAVEETTIL POKKEN, RESIDING AT LAKSHAM VEEDU COLONY, KAVVAYI THOYAMMAL, BELLA VILLAGE P.O. KANHANGAD. 3. KUNHIKANNAN, AGED 61 YEARS, S/O VALIYAVEETTIL POKKEN, RESIDING AT LAKSHAM VEEDU COLONY, KAVVAYI THOYAMMAL, BELLA VILLAGE KANHANGAD. 4. JANAKI, AGED 55 YEARS, W/O LATE KUNHAMBU , HOUSE HOLD, RESIDING AT AIKKARA, BELLA VILLAGE, P.O. KANHANGAD. BY ADV. SRI.P.JACOB VARGHESE (SR.) SRI.VARUGHESE M EASO SRI.VIVEK VARGHESE P.J. SMT.ELIZEBETH MEERA SRI.P.J.VINOD JOSEPH RESPONDENTS: RESPONDENTS/RESPONDENTS/PLAINTIFFS:- ------------------------------------------------------------------ 1. KAYAKKIL UMBICHI, AGED 65 YEARS, D/O LATE KANNAN & CHAKKI, HOUSE HOLD , RESIDING AT GURUKULAM, BELUR VILLAGE, HOSDURG TALUK, P.O.AMBALATHARA. 2. KAYAKKIL MANIKKAM, AGED 58 YEARS, D/O LATE KANNAN & CHAKKI, HOUSE HOLD, RESIDING AT ATHIKOTHU, BELLA VILLAGE, P.O. BELLA, HOSDURG TALUK,. 3. KAYAKKI UNDACHI, AGED 55 YEARS, D/O LATE KANNAN AND CHAKKI, HOUSE HOLD, NELLITHARA, ASARI VILLAGE, P.O. ANANDASRAMAM, HOSDURG TALUK. 4. KAYAKKI GOVINDAN (DIED). 5. RATHI A, AGED 39 YEARS, D/o LATE KAYAKKIL GOVINDAN MANNATTA HOUSE, ADUKKATHIL, ASANUR VILLAGE, HOSDURG TALUK, P.O. ANANDASRAMAM 6. PAVITHRAN A, AGED 37 YEARS, S/o LATE KAYAKKIL GOVINDAN MANNATTA HOUSE, ADUKKATHIL, ASANUR VILLAGE, HOSDURG TALUK, P.O. ANANDASRAMAM 7. SAVITHRI A, AGED 35 YEARS, D/o LATE KAYAKKIL GOVINDAN MANNATTA HOUSE, ADUKKATHIL, ASANUR VILLAGE, HOSDURG TALUK, P.O. ANANDASRAMAM THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------------- R.S.A. No 471 of 2008 ------------------------------------------------------ Dated this the 23rd July 2008 JUDGMENT Defendants 1 to 4 in O.S. No 431 of 2001 on the file of the Munsiff's Court, Hosdurg have preferred this Second Appeal assailing the concurrent verdict of the courts below in a suit for partition instituted; by respondents 1 to 3. 2. Respondents 1 to 3 as plaintiffs instituted O.S. No 431 of 2001 aforesaid for a decree for partition of the scheduled properties by metes and bounds into five equal shares and allotting one such share jointly to the plaintiffs and fifth defendant with future mesne profits at the rate to be determined by the court. The trial court passed a preliminary decree and judgment directing partition by metes and bounds of the scheduled property into 25 equal shares and allotment of four such shares jointly to the plaintiffs and finding that fifth defendant is entitled to one such share and defendants 1 to 4 are each entitled to five such shares and providing for future mesne profits to be determined in the final decree proceedings. Defendants 1 to 4 assailed the said preliminary decree and judgment in A.S. No 6 RSA 471/08 2 of 2006 filed by them before the first appellate court and the first appellate court dismissed the appeal confirming the preliminary decree passed by the trial court. Hence this Second Appeal by defendants 1 to 4 who lost before the first appellate court as well. 3. The case of the plaintiffs as set out in the plaint is that the schedule property along with another extent of 30 cents on its north originally belonged to Valiyaveettil Pokkan and his wife Kunhamma by virtue of document No 1166 of 1961 of Sub Registry Office, Hosdurg which is an assignment of Kuzhikanom right; that they partitioned the property as per partition deed dated 18.09.1963 and the suit property was allotted to the share of Pokken and the northern half measuring 30 cents was allotted to his wife Kunhamma and defendants 1 to 3 who are his children and also to one Kunhambu, the deceased son of Pokken, that defendants 1 to 3 and late Kunhambu are the children of Pokken through his predeceased wife Chirutha, that Kunhamma's 1/5th right over the suit property devolved upon the plaintiffs and the fifth defendant and one-fifth right of late Kunhambu devolved upon his wife who is his sole legal heir, that plaintiffs and defendants are in joint possession of the suit property but the property is now being managed by defendants 2 and 3 and RSA 471/08 3 they are not amenable to share the income with the plaintiffs, that it is learnt that Kunhamma; defendants 1 to 3 and late Kunhambu had applied for assignment of jenm right in respect of the suit property and the remaining 30 cents vide suo motu proceedings No 1276/77 on the file of the Deputy Collector, Land Tribunal, Cannanore, that the jenm right obtained by them will enure to the benefit of the plaintiffs and fifth defendant as well and that the suit property is hence liable to be partitioned into five equal shares and the plaintiffs and fifth defendant are entitled jointly to one-fifth share. Fifth defendant was not available to join as plaintiff and hence he was impleaded as fifth defendant. 4. The fifth defendant remained absent and ex parte. Defendants 1 to 4 resisted the suit by filing written statement raising contentions, inter alia, that the plaintiffs and fifth defendant have no right over the suit property and they are not in joint possession of the same. An extent of 60 cents of land comprised in R.S. No 267/1 which takes in the suit property as well, originally belonged in jenm right to Trikkaripur Sree Vishnu Moorthy Devaswom and it was obtained on Kuzhikanam right by late Kunhamma, defendants 1 to 3 and late Kunhambu and they were in possession of the same. As RSA 471/08 4 per order in suo motu proceedings No 1276/77 the jenm right was assigned in their favour and ever thereafter they alone are in joint possession of the properties. On the death of Kunhamma her undivided right devolved upon defendants 1 to 4 as her immediate heir and legal representatives. Assignment deed No 1166/1961 of Sub Registry Office, Hosdurg and the partition deed dated 18.09.1963 made mention of in the plaint have not taken effect and they are documents which are not valid. It is incorrect to say that the benefit of assignment under suo motu proceedings will enure to the benefit of the plaintiffs and fifth defendant as well. They were not made parties since they had no right at all and the suit is liable to be dismissed. 5. On the above pleadings the trial court raised necessary issues for trial and considering the case in the light of the evidence adduced at trial which consisted of only the oral evidence of D.W.1 and documentary evidence, Exts. A1 and A2, decreed the suit as already stated and appeal filed by defendants 1 to 4 before the first appellate court was also dismissed. 6. The only argument that is advanced by the learned counsel for the appellants is that purchase effected in suo motu proceedings RSA 471/08 5 No 1276 of 1977 is not to enure to the benefit of the plaintiffs and that therefore they are not entitled to any decree for partition. All the same, counsel for the appellants submits that Kunhamma was also an applicant in the suo motu proceedings. If at all she was also a party her heirs are entitled to share in the schedule property. Similarly the rights of Pokken have devolved on Kunhamma as well as also to the L. Rs of Kunhambu and not in favour of defendants 1 to 4 alone. Consequently therefore the benefit of purchase under purchase certificate issued in S.M.1276 of 1977 will enure to the plaintiffs and defendants and share was accordingly determined by the trial court. There is no case for the defendants that the share calculated is incorrect. There is hence no merit in this Second Appeal and there is no question of law and much less any substantial question of law arising for consideration by this court in this Second Appeal. In the result, I dismiss this R.S.A in limine refusing admission. Sd/- K.P. BALACHANDRAN Judge 23/07/2008 en [true copy]