IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 SA.No. 917 of 1999(A) --------------------- AS.4/1997 of SUB COURT, HOSDRUG OS.125/1982 of MUNSIFF COURT, HOSDRUG .................... APPELLANT/APPELLANT/4TH DEFENDANT: --------------------------------------------------------------- PANAKKOOL KRISHNAN, S/O.MADIYAN RAMAN MANIYANI, MANIKOTH PUDUKAL VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. (DIED) ------ ADDL. APPELLANTS 2ND & 3RD IMPLEADED ---------------------------------------------------------------- 2. M.V.RAMANI, D/O.PANAKOOL KRISHNAN, MENIKOT, PUDUKKAI VILLAGE, HOSDURG, KASARGOD. 3. M.V.BHAVANI, D/O.PANAKOOL KRISHNAN, MALAPPACHERRY, P.O. KUNHIRAPOYIL' MADIKAI VILLAGE, HOSDURG TALUK, KASARGOD. ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED SOLE APPELLANT, AS PER THE ORDER DATED 2419/2010 IN IA.2423/2010. BY ADV. SRI.T.SETHUMADHAVAN ADDL. A2 & 3 BY ADVS. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 & 5 TO 10 AND TO 14 & LEGAL HEIRS OF DEFENDANTS 1, 3 AND 11 : ------------------------------------------------------------------------------------------------------------------- 1. PANAKKOOL KUNHIRAMAN, 64 YEARS, MADURAMKAI, PUDUKAI VILLAGE, HOSDURG TALUK, KASARGOD DIST. 2. PANAKKOOL KUNHIPENNU, 76 YEARS, VANDAYANGANAM, MADIKAI VILLAGE, P.O. MEKKAT. 3. PANAKKOOL KUNHAMAR, 58 YEARS, MONACHA, PUDUKAI VILLAGE, P.O.PUDUKAI. 4. PANAKKOOL THAMBAYI, 49 YEARS, MADURAMKAI, PUDUKAI VILLAGE, P.O.PUDUKAI. \ SA.No. 917 of 1999(A) ----------------------------- 5. PALANKI LAKSHMI, 54 YEARS, KEEKANKOT, MADIKAI VILLAGE, P.OMEKKAT. 6. PALANKI THAMPAN, 36 YEARS, KEEKANKOT, MADIKAI VILLAGE, P.OMEKKAT. 7. PAYANGAPPADAN VEETTIL PARVATHI, 69 YEARS, MADURAMKAI, PUDUKAI VILLAGE, P.O.PUDUKAI. 8. PAYANGAPPADAN VEETTIL KUNHIRAMAN, 51 YEARS, MADURAMKAI, PUDUKAI VILLAGE, P.O.PUDUKAI. 9. KANNOTH LAKSHMI, 69 YEARSM KOVVAL, CHERUVATHUR VILLAGE, P.O. CHERUVATHUR, HOSDURG TALUK. 10. KANNOTH THAMBAYI, 47 YEARS, KOVVAL, CHERUVATHUR VILLAGE, P.O. CHERUVATHUR, HOSDURG TALUK. 11. KANNOTH RAMAKRISHNAN, 33 YEARS, KOVVAL, CHERUVATHUR VILLAGE, P.O. CHERUVATHUR, HOSDURG TALUK. 12. K.PREMAVALLI, AGED 40 YEARS, PALLIPURATH HOUSE, MAILADATHADAM, P.O. AZHIKODE, KANNUR DISTRICT. 13. MANI, PALLIPURATH HOUSE, MAILADATHADAM, P.O. AZHIKODE, KANNUR DISTRICT. 14. MANJU, PALLIPURATH HOUSE, MAILADATHDAM, P.O. AZHIKODE, KANNUR DISTRICT. 15. KUMARAN, PULLUR, P.O. HARIPURAM, PULLUR VILLAGE, HOSDURG TALUK. 16. P.SUNI, PULLUR, P.O. HARIPURAM, PULLUR VILLAGE, HOSDURG TALUK. 17. P. SUNITHA, PULLUR, P.O. HARIPURAM, PULLUR VILLAGE, HOSDURG TALUK. R1 & R11 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 917 of 1999(A) -------------------------------- ORDER ON CMP. 2569/99 IN SA 917/1999 DISMISSED 4.1.2011 Sd/- HARUN-UL-RASHID, JUDGE / TRUE COPY / P.A. TO JUDGE VK HARUN-UL-RASHID,J. ------------------------------- S.A. NO.917 OF 1999 ------------------------------- DATED THIS THE 4TH DAY OF JANUARY, 2011 JUDGMENT The substantial questions of law formulated in the appeal are as follows: “1) In a suit for partition whether the defendants who did not file any written statement and who were declared ex parte are entitled to get mesne profits in the light of Section 37(2) of the Court Fees Act? 2)Whether the decisions of the courts below allotting shares to defendants 9 to 14 is legally sustainable? 3) Whether the appellant is entitled to get value of improvements effected by him in the plaint schedule property? 4) Whether the failure on the part of the court below in deciding the question of adverse possession is legally sustainable? 5) Whether in a suit for partition whether the death of a sharer entail in the total abatement of the suit?” -2- S.A.No.917/1999 2. The 4th defendant in O.S.No.125/1982 on the file of the Munsiff's Court, Hosdrug is the appellant. The appeal is directed against the judgment and decree in A.S.No.4/97 on the file of the Sub Court, Hosdrug. The appellant died during the pendency of the appeal. His legal heirs are impleaded as additional appellants 2 and 3. 3. In the suit for partition the trial court passed a preliminary decree directing division of the property into 8 equal shares out of which the plaintiff and defendants 2 to 6 are entitled to get one share each, defendants 7 and 8 are jointly entitled to one share and defendants 9 to 14 are jointly entitled to get one share. Consequential reliefs are also granted. The present appellant filed the first appeal before the Sub Court, Hosdrug. The learned Sub Judge concurred with the findings of the trial court and dismissed the appeal. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 4. The plaintiff claimed partition and separate -3- S.A.No.917/1999 possession of the plaint schedule property as the legal heir of the deceased mother. The 4th defendant contested the suit. He claimed absolute and exclusive ownership and possession on the basis of an oder passed by the Land Tribunal in O.A.No.531/70. Based on the said order, the 4th defendant obtained certificate of purchase from the Land Tibunal. The contention raised by the appellant is that he derived independent right over the plain schedule property. The lst defendant supported the 4th defendant. Pending suit, the lst defendant expired and his legal heirs were impleaded as supplemental defendants 9 to 14. Defendants 7 and 8 filed written statement supporting the stand of the plaintiff. 5. The trial court as well as the Appellate Court examined the contentions of the 4th defendant as to whether he is the cultivating tenant in respect of the suit property. The said contention is raised based on the certificate of purchase issued in O.A.No.531/70. It has come out in evidence that the plaintiff preferred an appeal against the order in O.A.No.531/70 as -4- S.A.No.917/1999 A.A.No.257/84 before the Appellate Authority (LR), Cannanore. Ext.A2 is the certified copy of the order passed by the Appellate Authority setting aside the order of the Land Tribunal. The 4th defendant preferred CRP.No.2597/86 before this Court challenging Ext.A2 order passed by the Appellate Authority. This Court in the said CRP confirmed the decision of the Appellate Authority. Therefore, the courts below rightly concluded that the appellant cannot contend that the suit property was obtained by him on tenancy right and that he is a cultivating tenant. 6. The trial court considered other issues raised for consideration. After perusing the oral evidence and Exts.A1, A2 and A3 and placing reliance on Ext. A1 to A3, the trial court held that the plaintiff and defendants 1 to 6 and defendants 7 and 8, who are the children of predeceased son of Chirutheyi Amma, inherited to the suit property left behind by Chirutheyi Amma and they are in joint possession of the property as co-owners. Therefore, the trial court held that the plaintiffs and defendants 1 to 8 have got title -5- S.A.No.917/1999 upon the plaint schedule property so as to claim partition of the same. 7. The trial court also considered the contention of the 4th defendant that the title, if any, of the plaintiff is lost by adverse possession and limitation. The court observed that the defendant has not made dire attempt to prove the said defence raised by him. The court also observed that there is no iota of evidence to show that the 4th defendant has been keeping property in derogation of the title of the other co-owners and that he alone is the absolute owner of the property. Finding that the ouster is not established by the 4th defendant, the trial court held that the suit property is available for partition in between the plaintiff and defendants. The courts below also examined the other contentions raised by the 4th defendant including his claim for value of improvements. The court on facts held that the mother had effected improvements in the property and that there is no evidence to prove that the 4th defendant has effected improvements on his own right, that the mother had made -6- S.A.No.917/1999 improvements including the house in the property and hence he cannot claim any exclusive right upon the improvements. 8. The Lower Appellate Court also considered the legality of the aforesaid findings in detail. The Lower Appellate Court concurred with the findings entered by the trial court on facts and held that the property is partible and that the appellant has no exclusive right upon the plaint schedule property. 9. The learned counsel for the appellant submitted that defendants 3 and 11 died during the pendency of the suit and their legal heirs were not impleaded in the suit and therefore the judgment and decree passed by the trial court is a nullity, in view of the Order XXII Rule 4 of the C.P.C. The very same question was considered by the Lower Appellate Court in detail in paragraph 8 of the judgment. The learned counsel for the contesting respondent pointed out that the defendants 3 and 11 died during the pendency of the appeal. He has also referred to the affidavit filed in support of the application for impleading, which contained the -7- S.A.No.917/1999 averment that the said defendants died during the pendency of the appeal. The affidavit in support of the application was submitted by the present appellant. They were impleaded in the first appeal as respondents 4 and 11. The appellate Court on an appreciation of the evidence and available materials, held that nothing is brought to his knowledge that their demise were recorded before passing the decree and judgment. The Appellate Court rejected the contentions finding that there is no merit. The decree for partition was passed by the trial court, after considering all the materials on record. The contentions raised by the 4th defendant, who is the appellant herein, was examined in detail before passing the decree for partition. The Lower Appellate Court also re-appreciated the evidence on record and held that the suit property is partible. The findings and conclusions are entered on the basis of the facts, circumstances and evidence adduced by both parties. I find that no valid grounds are made out for interference under Section 100 of the C.P.C. No question of law much less any substantial questions of law arise for -8- S.A.No.917/1999 consideration in this appeal. The appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge. kcv.