IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 RFA.No. 537 of 2008() --------------------- OS.254/1979 of ADDL.SUB COURT, PALAKKAD .................... APPELLANTS/PLAINTIFFS ------------------- 1. MADHAVI, W/O. SANKUNNI, RESIDING AT THATTANKOLUMBU HOUSE, KIZHAKKENCHERRY AMSOM AND VILLAGE, ALATHUR TALUK, PALAKKAD. 2. LAKSHMI, W/O. VELAYUDHAN, RESIDING AT CHUNDAKKAR HOUSE, AYAKKAD AMSOM AND VILLAGE, ALATHUR TALUK, PALAKKAD. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS/DEFENDANTS 1 TO 4, 6 TO 13, 15, 17 TO 26, 28 TO 30 AND 33 TO 45: ---------------------- 1. C.K. APPU, S/O. KUTTAN, RESIDING AT CHEETHAVA, AYALUR VILLAGE, CHITTUR TALUK, PALAKKAD. 2. THE TALUK LAND BOARD, ALATHUR, REPRESENTED BY CHAIRMAN. 3. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR. 4. VELLAMUTHAN, S/O. CHELLAN, METNAMCODE, VANDAZHI, ALATHUR TALUK, PALAKKAD DISTRICT. 5. V. RAMAKRISHNAN, S/O. VELU, KIZHAKKENTHARA, VANDAZHI, ALATHUR TALUK, PALAKKAD DISTRICT. -2- R.F.A.NO.537/2008 6. VELLACHY, W/O. CHERUTHA, ODUKAR, CHELACHAL, VANDAZHI, ALATHUR TALUK, PALAKKAD DISTRICT. 7. N.K. GOPALAKRISHNAN, NELLIKKODE, VANDAZHI, ALATHUR TALUK, PALAKKAD DISTRICT. 8. N.K. MURUGHAN, NELLIKKODE, -DO- 9. MADHAVI, W/O. MADAVAN, NADAKKUMARIL, VANDAZHI, ALATHUR TALUK, PALAKKAD DISTRICT. 10. V. RAJAN, KIZHAKKETHARA, KALKULMBU, VANDAZHI, ALATHUR TALUK, PALAKKAD DISTRICT. 11. THANKA, D/O. VELAN, VELLAYUMPADAM, VANDAZHI, -DO- 12. NEELANKUTTY, S/O. KANDAN, KIZHAKKETHARA, VANDAZHI, ALATHUR TALUK, PALAKKAD. 13. VELUKUTTAN, S/O. CHEMBA, KANIYAMANGALAM, ELAVAMPADAM. 14. K.K. ARUMUGHAN, THEKKEKODE, VANDAZHY, ALATHUR TALUK. 15. A. KUTTAN, S/O. APPU, THANKIARA, PULAVAMPADAM. 16. JANAKI, W/O. KRISHNAN, ALAMPETTY, VANDAZHY, ALATHUR TALUK. 17. ARUGMUGHAN, S/O. MUTHU, PALLIPARAMBU, VANDAZHY, ALATHUR TALUK. 18. JANAKI, W/O. VELAYUDHAN, PALAM, VANDAZHY, ALATHUR TALUK. -3- R.F.A.NO.537/2008 19. ISMAIL, S/O. SAIDU MOHAMMED, KALLANKAVU, VANDAZHY. 20. KODIYA, W/O. VELAYUDHAN, NELLIKODE, VANDAZHY, ALATHUR TALUK. 21. RUGMINI, W/O.VELA, MEETHAMKODE, VANDAZHY, ALATHUR TALUK. 22. LAKSHMI, W/O.THEETAY, PALA, VANDAZHY, ALATHUR TALUK. 23. K.THANKA, W/O.PAZHANIYANDI, KIZHAKKETHARA, VANDAZHY. 24. A.ALI, S/O.ABDUL RAHIMAN, PALA, VANDAZHY, ALATHUR TALUK. 25. NARAYANAN, KIZHAKKETHARA, VANDAZHY, ALATHUR TALUK. 26. SULAIMAN, KALLAMKARA, MANGALAM DAM. 27. SHANMUGHAN PILLAI, S/O.CHAMIYAPPAN PILLAI, THIRUTHODE, VANDAZHY, ALATHUR TALUK, PALAKKAD DISTRICT. 28. B.K.VELAYUDHAN, VELLAMPADAM, VANDAZHY, ALATHUR TALUK. 29. C.R.PAZHANIMALA, S/O.RAMAN, CHERUMKODE, VANDAZHY. 30. V.RAJAN, S/O.KALLYANI, RESIDING AT METHANKODE, VANDAZHY, ALATHUR TALUK, PALAKKAD DISTRICT. 31. THATHA, W/O.MURUGA NAIKKAN PILLAI, VANDAZHI AMSOM, ALATHUR TALUK. -4- R.F.A.NO.537/2008 32. KALLYANI, W/O.KARUNAN, KIZHAKKETHAR, VANDAZHI, ALATHUR TALUK. 33. MARY, W/O.C.T.THOMAS, PROJECT QUARTERS BLOCK E., MANGALAM DAM, ALATHUR TALUK, PALAKKAD DISTRICT. 34. CHELLAPPAN PILLAI, S/O.SHANMUGHAN PILLAI, CHERANGODE, VANDAZHI, ALATHUR TALUK. 35. C.K.BALAKRISHNAN, ARUTHALAKALAM, ARUTHALA, VANDAZHI VILLAGE AND POST, ALATHUR TALUK, PALAKKAD DISTRICT. 36. RAJA, S/O.NEELI, PUTHANKOLAMBU, MARIYAPADAM, ELAVAMPADAM, KIZHAKKENCHERRY, ALATHUR TALUK. 37. SANGEETHA, D/O.RAJAN, RESIDING IN DO. DO. 38. VELAYUDHAN, S/O.VELAN, NELLIKODE, VANDAZHI, ALATHUR TALUK. 39. THANKA, D/O.VELAN AND W/O.KRISHNAN, PUTHENTHARA, THIRUVAZHIYADU, CHITTUR TALUK. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- R.F.A.NO.537 OF 2008 -------------------------------- Dated this the 22nd day of August,2008 JUDGMENTSS Raman,J. This is an appeal against the judgment and decree passed in O.S.No.254/79. Appellants are the plaintiffs in the suit for partition. The facts briefly stated are that the plaint schedule properties originally belonged to the plaintiffs' uncle and mother jointly. It consists of 8 acres of paddy land and 26 acres of paramba situated in Arthala, Vandazhi Village in Alathur Taluk. The income of 520 paras of paddy and from the paramba Rs.1,000/- were received by the plaintiffs till two years back. Plaintiffs 1 and 2 are the daughters and the lst defendant is the son of deceased Kuttan. Since the plaintiffs were not paid share of profits, they demanded payment of share of profits but the lst defendant was not prepared to give share of profits to the plaintiffs. The plaintiffs claim 2/3 share of the plaint schedule properties and -2- R.C.R.No.537/2008 the lst defendant 1/3 share. It is alleged that the plaintiffs came to know from reliable sources that the the 2nd defendant, the Taluk Land Board, Alathur initiated ceiling proceedings as per C.C.1218/1974 against the lst defendant under the presumption that the properties absolutely belonged to the lst defendant. That presumption is unwarranted. According to the plaintiffs, the properties are family properties and they got right over the same. No relief was claimed against the Taluk Land Board and the suit is only for partition. Defendants 2 and 3 are only formal parties. The lst defendant filed a written statement admitting the contentions raised by the plaintiffs, which supports the case of the plaintiffs. Defendants 2 and 3 in their written statement contended that the contention regarding the non-compliance of Section 80 of the C.P.C. is untenable and without merits. The matter is under the exclusive jurisdiction of the Taluk Land Board. If at all the plaintiffs are aggrieved by any order passed by the Taluk Land Board, they would have filed an application under Section 85(8) to -3- R.C.R.No.537/2008 reopen the order of the Taluk Land Board under the provisions of the Act. The plaintiffs have not chosen to seek their remedy before the appropriate Forum and the order passed by the Taluk Land Board has become final and is binding on the plaintiffs. It is also stated that the suit was filed by the plaintiffs at the instance and in collusion with the lst defendant in order to enable him to circumvent and to nullify the order of the Taluk Land Board. All the averments made in the plaint are only with any such motive. There is no prayer for declaration that the proceedings of the Taluk Land Board is in any way illegal or void. The plaintiffs ought to have paid court fee under Section 37(2) of the Court Fees Act, as they are not in joint possession. It is prayed that the suit may be dismissed. Assignees in the properties were impleaded as supplemental defendants 4 to 35. Some of the assignees died during the pendency of the suit and their legal heirs were impleaded as supplemental defendants 36 to 40 and 42 to 45. The plaintiffs' and lst defendnts' brother Balakrishnan was impleaded as 41st -4- R.C.R.No.537/2008 defendant. The supplemental defendants 4, 6, 14, 15, 17 to 31 and 34 to 39 contended that plaintiffs' have a brother by name Balakrishnan and the plaintiffs ought to have impleaded him. Hence, the suit is bad for non-joinder of necessary party. The plaintiffs' mother died prior to 1956. It is also alleged that the plaint schedule properties were taken on lease by the uncle and mother of the plaintiffs and they had been in possession of those properties is false. In these circumstances, the plain paper lease deed was concocted solely for the purpose of the suit. Plaintiffs had in fact filed a claim petition before the Taluk Land Board under Section 85(8) of the Kerala Land Reforms Act, which was dismissed by the Taluk Land Board. Thereafter, the plaintiffs filed CRP.No.1381/1980 before this Court challenging the order of the Taluk Land Board and the same was also dismissed. In view of the above decision, plaintiffs have no right or authority to claim ownership over the plaint schedule properties. C.R.P.No.1381/1980 was dismissed while AS.No.317/1981 filed -5- R.C.R.No.537/2008 by the plaintiffs against the judgment and decree of the court below was pending before this Court. But the plaintiffs suppressed the fact of dismissal of C.R.P.No.1381/1980 and this Court remanded the case for fresh disposal. 2. The court below framed necessary issues arising in the case. Curiously enough the plaintiffs and the lst defendant filed I.A.No.1928/1980 under Order XXIII Rule 3 of the C.P.C. to record the compromise, which was declined by the court below as it was filed to defraud the interest of the Government and the assignees. Originally, the suit was dismissed by an earlier judgment dated 30/7/1981, against which A.S.No.137/1981 was filed before this Court. That appeal was allowed by way of remand. Thereafter, assignees were impleaded. The 2nd plaintiff gave oral evidence as PW-1 and another witness was examined on their side as PW-2 and Exts.A1 and A2 documents were marked. No evidence was adduced by the defendants. Subsequent to the first remand, Exts.B1 to B37 documents were marked on the side of the -6- R.C.R.No.537/2008 defendants. Preliminary decree was passed by the court below as per judgment dated 7/7/1992 against which some of the supplemental defendants filed an appeal before this Court as A.S. 95/1993. This Court set aside the judgment and decree and remanded the case for disposal afresh in the light of the observations contained therein. Some of the issues specifically referred to be considered by this Court were as to whether there was any valid lease of the 39.19 acres of property under Pattachit in favour of Ammalu and Veemban, is there any valid lease under Ext.A1, even if the plaintiffs were entitled to a share over the properties, what are the circumstances under which the whole of the suit property covered by Ext.A1 came to be included in the account of the lst defendant's ceiling case as C.C.1218/1973 before the Taluk Land Board, Alathur and what is the impact of the orders of assignment by the Government in favour of the additional defendants by virtue of Section 96 of the KLR Act. The supplemental defendants 41 to 45 were impleaded subsequent to the -7- R.C.R.No.537/2008 second remand. The first issue considered was regarding the maintainability of the suit. It was contended by the defendants that the suit is not maintainable, in view of the provisions contained in the Kerala Land Reforms Act. Defendants 2 and 3 were impleaded in the suit. According to the defendants, the 2nd defendant initiated ceiling proceedings against the lst defendant on the presumption that the properties absolutely belonged to the lst defendant. On a consideration of the evidence adduced, the court below found that the Taluk Land Board has passed a final order dated 27/5/1980 in C.C.No.1218/1973 and Ext.B2 is the certified copy of that order. On a perusal of Ext.B2 order, it is seen that the plaintiffs herein had filed a petition before the Taluk Land Board on 15/4/1980 under Section 85(8) of the K.L.R. Act contending that they are interested persons as they have got valid right over the property under the Act. The Taluk Land Board found that claim petition was filed in collusion with the brother of the plaintiff, the lst defendant in the suit to defeat the provisions of the K.L.R. Act -8- R.C.R.No.537/2008 and dismissed the same. Ext.B2 order was challenged by the plaintiffs before this Court in C.R.P.No.1381/1980 and this Court dismissed the said revision by order dated 15/9/1981. Thus the petition filed under Section 85(8), which was dismissed, has become final. 3. In so far as the claim as raised in the suit is concerned, the definite case is that the mother was a lessee of the property and the plaintiffs along with the defendants have got right over the same. Plaintiffs have 2/3 right and the defendants have 1/3 right. Therefore, unless the plaintiffs are able to establish that the properties were on lease with the mother, the plaintiffs cannot succeed in the suit. Therefore, the basic question that will have to be decided is as to whether the lease set up by the plaintiffs in favour of his mother is true or not. After the commencement of the Land Reforms Act, if the petitioner or predecessor-in-interest is a cultivating tenant entitled to fixity of tenure, necessarily, such claim should be raised only before the Land Tribunal. In this case, there -9- R.C.R.No.537/2008 was a ceiling case against the lst defendant. The plaintiffs sought to exclude a portion of the property from the account of the lst defendant setting up a claim over the property. But the claim was rejected, that has become final. In such circumstances, the civil court cannot go into the question at the instance of the plaintiffs in a subsequent proceedings. Bar under Section 125 is also attracted as rightly found by the court below. 4. So long as the plaintiffs' claim for exclusion of their interest in the property having been turned down and became final, they cannot re-agitate the claim again in a subsequent proceedings. In this connection the Taluk Land Board dismissed the claim made by the plaintiffs on the finding that the claim petition is filed in collusion with the lst defendant. Curiously enough even in the suit proceeding a compromise petition was filed by the plaintiffs along with the lst defendant obviously because a decree rendered on such compromise petition will enure to the benefit of the lst defendant to re-agitate his claim in the land board proceedings. In the -10- R.C.R.No.537/2008 circumstances, the order impugned in this appeal is found to be correct. There is no merit in this appeal and the same is dismissed. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.