IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 FAO.No. 156 of 2003() --------------------- AS.6/2000 of ADDL.DISTRICT COURT, KOZHIKODE OS.323/1997 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/RESPONDENT IN AS DEFENDANT IN O.S. -------------------------------------------------------------------------- THEKKEPOYIL UPPERAN, AGED 62 YEARS, S/O.CHOYI, THEKKEPOYIL HOUSE, KEDAVOOR AMSOM DESOM THAMARASSERY, KOZHIKODE. BY ADV. SRI.S.NIRMAL RESPONDENT(S)/APPELANTS IN A.S./PLAINTIFFS IN O.S. ------------------------------------------------------------------------------- 1. SRAMBIKKAL KUTTIYATHA, AGED 69, D/O.CHOYI, SRAMBIKKAL HOUSE, KUMARANALLOOR AMSOM AND ALLI DESOM VIA.MUKKOM, KOZHIKODE TALUK. 2. KOTTARAM VEETTIL MADHAVI AGED 67, D/O.CHOYI, KOTTARAM VEETTIL HOUSE, CHATHAMANGALAM POST. CHOOLUR VIA. R.E.C. KOZHIKODE TALUK. ADV. SRI.T.SETHUMADHAVAN FOR R1 & R2 SRI.PUSHPARAJAN KODOTH FOR R1 & R2 SRI.K.JAYESH MOHANKUMAR FOR R1 & R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 156 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of May, 2009. JUDGMENT Raman, J, The appeal arises out of a suit for partition instituted by the respondents as plaintiffs. The trial court dismissed the suit. On appeal by the plaintiffs, the appellate court reversed the decree and found that the properties are partible among the plaintiffs and the defendant as prayed for in the plaint. However, on the plea of adverse possession and limitation as pleaded by the defendant, in the absence of any evidence adduced, the matter was remanded for consideration of the said issue with opportunity to adduce evidence to both sides. It is against the said judgment and decree passed by the appellate court that the defendants have preferred this appeal. 2. The property originally belonged to Muchilot Upperan, who purchased the kanam right over the property from one Vishnu Namboodiri of Kalathil Illam by Ext.B2. Ext.P2 is a registered document of the year 1911. Thereafter Upperan died. He had two sons, Choyi and Changaran. The jenmi executed a FAO. 156/2003. 2 fresh kanam deed (lease deed) in favour of Choyi and Changaran, a minor, represented by Kuttiatha, their mother, by Ext.A1 document of the year 1931. Both Choyi and Changaran died. Normally their rights would have devolved on the respective heirs. Choyi had a son and Changaran remained unmarried. Though Choyi and Changaran's mother Kuttiatha might have had only a limited estate for maintenance, by virtue of the subsequent document Ext.A2 executed by the jenmi in favour of Choyi's son Jr.Upperan, the defendant herein, and his grandmother Kuttiatha, the leasehold right vested on them equally, thus improving the right of Kuttiatha. Ext.A2 is a registered document of the year 1947. Thus by virtue of Ext.A2, Jr.Upperan, the defendant herein, is estopped from contending that his grandmother Kuttiatha had only limited estate over the property. He is a beneficiary under Ext.A2 and a party to Ext.A2 document. In the absence of any difference in the matter of enjoyment of right under Ext.A2 and in the wording contained in Ext.A2, it admits of no doubt that the intention of the parties was to enjoy the right under Ext.A2 equally among the lessees, the defendant and his grandmother Kuttiatha. After the death of FAO. 156/2003. 3 Kuttiatha, her right will devolve on her legal heirs including the plaintiff and the defendant and the remaining half going to the defendant on his exclusive right. This being the legal position, we do not find any reason to interfere with the judgment of the appellate court reversing the judgment of the trial court in this regard. 3. As regards the right if any of the defendant based on adverse possession or limitation, since the matter is remanded back, an issue will be raised after giving an opportunity of being heard to both sides and to adduce evidence in the matter and the trial court will dispose of the suit in accordance with law and based on the decision rendered on the said issue. 4. But we find that the lower appellate court has committed an error in giving direction to the trial court to consider afresh the right if any of Imbichipennu over the property. As a matter of fact, neither the defendant nor the plaintiffs had pleaded that Imbichipennu had any right over the property. On the other hand, even according to the plaintiff, the property is to be divided among the plaintiffs and the defendant allotting one sixth right to the plaintiffs. Imbichipennu is not FAO. 156/2003. 4 even made a party. In such circumstances, the appellant is right in contending that the finding in paragraph 10 does not arise out of the order passed by the trial court. Hence, the said findings and directions are deleted. But if any application is moved for amendment of the plaint seeking to incorporate any additional averment, this order will not stand in the way f the court below considering the same and passing orders in accordance with law. In the result, the appeal fails and it is dismissed subject to what is stated above. The parties are directed to suffer their respective costs. The parties shall appear before the trial court on 6th July, 2009. P.R. Raman, Judge P. Bhavadasan, Judge sb.