IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 RSA.No. 653 of 2009() --------------------- AS.16/2004 of PRINCIPAL SUB COURT,ALAPPUZHA OS.309/2001 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- P.R.CHIDAMBARAN, PAVUMDATTU HOUSE, SOUTH ARYAD, AVALOOKKUNNU, ALAPPUZHA. BY ADV. SRI.A.KRISHNAN RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------- 1. VISWAMMA, D/O.LATE KAYI KOCHU PARU, OTHALAPPARAMBU HOUSE, NEHRU TROPHY WARD, ALAPPUZHA 2. KANAKAMMA D/O.LATE KAYI KOCHU PARU, PAVUNDATHU HOUSE, SOUTH ARYAD AVALOOKKUNNU PO, ALAPPUZHA. 3. SULOCHANA, MADACHIKAL HOUSE, SOUTH ARYAD AVALOOKKUNNU PO, ALAPPUZHA ADV. SRI.K.RAMANATHAN FOR R1-3 SRI.P.T.BINDURAJ FOR R1-3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.653 OF 2009 -------------------------------- Dated this the 21st day of January 2011 JUDGMENT The defendant is the appellant. Concurrent decision rendered in a suit for declaration, cancellation of a purchase certificate, and for partition, is challenged in this appeal. Respondents/plaintiffs are the sisters of appellant. Subject matter involved in the suit is 60 cents of land comprising building, over which a purchase certificate was issued in favour of their mother namely Kayi Kochu Paru. After the death of their mother, they are in joint possession and each of them is entitled to 1/5 share in the property was the case of the plaintiffs to claim partition. It is also alleged that suppressing the issue of a purchase certificate in favour of their mother, the defendant had fraudulently obtained another purchase certificate by filing an application before the Land Tribunal, and that certificate, which is not binding on the plaintiffs and also suit property, was sought to be cancelled. Resisting the suit claims, the appellant contended that his mother was in occupation of a property adjacent to the suit property, and he has obtained absolute title and possession over the suit property under the purchase certificate issued in his name recognising his tenancy right over such property. It was his R.S.A No.653 OF 2010 - 2 - further case that the property was enjoyed by him under a lease from the date of his attaining majority. The purchase certificate obtained by his mother does not pertain to the plaint property and even if that is found to be so, it has no legal sanctity as she was never in enjoyment of the property was his further case. On the materials placed by both sides, the trial court found that though there is some discrepancy over the survey number stated in the purchase certificate issued in favour of Kayi Kochu Paru, the predecessor of the parties, that certificate related to the suit property and the subsequent certificate issued for a slightly lesser extent ie, 55 cents, in favour of the defendant on an application moved by him, was not only irregular, but, totally unworthy of any value. The defendant had surreptitiously and fraudulently obtained the purchase certificate over the property knowing well of the issue of the purchase certificate in favour of his mother and the certificate so obtained by him by fraudulent means is liable to be declared as null and void was the conclusion reached by the trial court which resulted in passing of a decree upholding the claim of partition canvassed by the plaintiff setting aside the purchase certificate issued in favour of the appellant. The lower appellate court in the appeal preferred by the defendant, after R.S.A No.653 OF 2010 - 3 - reappraisal of the evidence, confirmed the findings entered by the trial court and dismissed such appeal. Going through the judgments rendered by both the courts below, I find, the materials tendered in the case have been scrutinised in the proper legal perspective and the conclusion formed thereunder is unassailable. The defendant, when examined as DW1 has practically conceded that his mother had been residing in the property involved in the suit at least 35 years before institution of his examination. Ext.A6 thandaper extract and the tax receipts produced by the plaintiffs assured both the courts to conclude that the claim of the plaintiffs under their mother, who had been issued a purchase certificate over the suit property earlier in point of time, is unimpeachable and challenge to the partition canvassed on the basis of Ext.B1 purchase certificate, which has no legal validity, is devoid of any merit. Where the two purchase certificates issued relate to the very same property, though Ext.B1 obtained by the plaintiff showed a lesser extent and the other with some discrepancy over survey number, the previous one issued in favour of the predecessor of the parties, their mother, which has not been cancelled, shall prevail with all the legal consequences flowing thereof. The fact that the defendant has been issued a second R.S.A No.653 OF 2010 - 4 - purchase certificate (Ext.B1) would not confer on him any right over the property. The issue of that purchase certificate in his favour after issue of Ext.A1 purchase certificate was rightly and correctly found to be illegal and void, and, accordingly, cancelled. All the parties as legal heirs of Kayi Kochu Paru are entitled to have equal right over the property, and so much so, the preliminary decree passed holding that each of them is entitled to ¼ share in the property directing that the equities to be considered in the final decree proceedings, is proper, valid and correct. There is no merit in the appeal, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv