IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 SA.No. 783 of 1997() -------------------- AS.42/1991 of SUB COURT, OTTAPPALAM OS.256/1984 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANT/APPELLANT/PLAINTIFF(S): ----------------------------------------- ANNAMALA MUDALI, AGED 49 YEARS, S/O.THEKKEVARIYIL MANICKA MUDALI, RESIDING AT MUNDAMUKA AMSOM, SHORANUR DESOM IN OTTAPPALAM TALUK. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT/RESPONDENT/DEFENDANT(S): ------------------------------------------------- MANICKA MUDALI (DIED). BALAKRISHNAN, AGED 40 YEARS, S/O.ACHATH PARUKUTTY AMMA, MUNDAMUKA AMSOM, SHORANUR DESOM IN OTTAPPALAM TALUK. R2 BY ADV. SRI.C.RAMAN SMT.M.R.MINI SRI.R.RAJESH KORMATH SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.RAHUL VARMA SRI.V.S.ROBIN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.2003 OF 1997 IN S.A.NO.783 OF 1997 //DISMISSED// 29.06.1010. SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ S.S.SATHEESACHANDRAN, J. ------------------------------------------- S.A.No.783 OF 1997 ------------------------------------------- Dated this the 29th day of June, 2010 JUDGMENT 1.The plaintiff is the appellant. His suit for possession after trial was dismissed by the trial court. Challenge against the decision of the learned Munsiff by way of appeal initially led to remission of the case, allowing an amendment application moved by the plaintiff to incorporate material particulars in the plaint to substantiate his case that the plaint property belonged to a joint family. Pursuant to the remission and carrying out of the amendment, both sides let in further evidence, with the plaintiff who had been examined previously as PW1, recalled and further examined. The trial court, after appreciating the materials produced, even, after remission of the case, found no merit in the case of the plaintiff to sustain his claim for possession. With the result, the suit was again dismissed. Challenge against the revised judgment passed by SA.783/97. 2 the trial court by way of an appeal by the plaintiff was negatived by the first appellate court and hence this appeal. 2.The short facts involved in the case to the extent necessary for disposal of the appeal can be summed up thus: The first defendant in the suit is the father of the plaintiff, and the second defendant, the assignee of the plaint property from the first defendant. The case of the plaintiff is that the plaint property having an extent of 63 cents, which is a paddy field, was demised on lease to his great predecessor one Chinnappu. Pursuant to a partition effected in the family of Chinnappu, the property devolved in favour of the first defendant's father, and later, the first defendant, in turn, came into possession and enjoyment of the property. While so, by Ext.A2 deed, the assignment of the jenm right over that property from the jenmi family viz., Muthukurussi Mana, was obtained jointly by the plaintiff and his father, the first defendant. Since the property was outstanding on a lease to the joint family consisting of the plaintiff and the first defendant, he too has equal right over SA.783/97. 3 the lease. The jenm right of the property was assigned jointly in favour of the plaintiff and his father, is the substance of the case pleaded by the plaintiff to seek possession of his right over the suit property. 3.Though very many particulars were not present in the plaint when the suit was instituted, necessary particulars to claim possession on the above basis was brought in after the amendment was allowed by the appellate court, as indicated earlier. Still, perusing the plaint, it is seen that other than stating that the parties are governed by Hindu makkathayam law, no specific allegation with regard to the right of inheritance and also as to who are the parties constituting the members of the joint family, as and when the Kerala Joint Family Abolition Act, 1975 came into existence, are not spelt out in the plaint even after carrying out the amendment. Further more, it is noticed that the documents by which the father of the first defendant got the property by way of partition of the suit property was also not produced. The SA.783/97. 4 entire edifice of the plaintiff's case that the lease was outstanding on a joint family is built upon one word in Ext.A1 lease deed taken by Chinnappu indicating that the lease was obtained for the purpose of tharawad (ÄùÕÞGÞÕÖcÞVj¢). The question then, that arises for consideration on the facts presented with reference to the pleadings involved in the case and also the materials produced, is whether the plaintiff has established his case that the suit property originally belonged to a joint family consisting of himself and his father. Two courts have concurrently found on the materials placed that the plaintiff has failed to do so. Before me, learned counsel for the appellant, referred to a document which was sought to be introduced as additional evidence before the first appellate court with an application under Order XLI Rule 27 of the Code of Civil Procedure, to contend that the recitals in that document would indicate that the plaint property was jointly enjoyed by the plaintiff with his father. That document, though not admitted in evidence, has been looked into by the SA.783/97. 5 first appellate court to consider its admissibility and so much so some reference as to the merit of that document is also reflected in the judgment. In the absence of the partition deed, by which the suit property had been alloted in favour of the father of the first defendant, and only on the basis of Ext.A1 document which refers to the suit property, it will not be possible to hold that the plaintiff and his father constitute a joint family. Ext.A1 refers to the entire plaint schedule property. Though the learned counsel tried to rely on the document sought to be introduced as indicated earlier, absence of the production of the partition deed prevents this Court to look into that document to consider whether it has any connection with the leasehold obtained from the Mana over the plaint property. So much so, I do not find any impropriety or jurisdictional error on the part of the first appellate court in declining to receive the additional evidence sought to be introduced in the appeal. SA.783/97. 6 4.On the merits of the case also, it has to be taken note of that the assignment under Ext.A2, a copy of which is produced by the defendant as B2 also, from the jenmi family, was obtained jointly in favour of the plaintiff and also his father after the commencement of the Land Reforms Act. A lease outstanding nearly six or seven decades before, demised in favour of the predecessor-in-interest of the first defendant, continued to be so on and after the advent of the Land Reforms Act when jenmi family assigned jenm right in favour of the person in possession, the lessee first defendant, and his son. Ext.A2 deed reflects that even at that point of time the first defendant was in possession and enjoyment of the property. His son the plaintiff also joined in that assignment by which the jenmi assigned the jenm right would not lead to a conclusion leaving alone an inference that he too had right over the property as a lessee on the premise that the original lease was demised in favour of a joint family. On the materials placed before the court, such a conclusion cannot be drawn as there is total paucity of evidence to hold so. When that be the case, the SA.783/97. 7 conclusion arrived at by the two courts below concurrently that the plaintiff has obtained only half jenm right over the suit property is unassailable. There is no merit in the appeal. It is hence dismissed, but, in view of the facts and circumstances of the case, without costs. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.30/06.