IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 RSA.No. 973 of 2007(G) -------------------------------- AS.32/2007 of SUB COURT, PERUMBAVOOR OS.416/1975 of ADDL. MUNSIFF COURT, PERUMBAVOOR .................... APPELLNAT IN SECOND APPEAL/APPELLANT IN A.S. 32/2007 PLAINTIFF IN --------------------------------- O.S.NO.416/75 OUSEPH VARKEY, PUTHUSSERI @ THARIAKU PIRARUR KARA, MANICKAMANGALAM (NOE MATTOOR VILLAGE ALUVA. BY SRI.OUSEPH VARKEY(PARTY-IN-PERSON) SRI.M.SREEKUMAR(AMICUS CURIE) RESPONDENT(S): RESPONDENT IN A.S.32/2007 DEFENDANTS IN O.S.416/75 ------------------------------------------------ 1. OUSEPH KOCHAPPU,PUTHUSSERI @ THARIAKU PIRARUR KARA, MANICKAMANGALAM (NOE MATTOOR VILLAGE ALUVA. 2. OUSEPH ANTHONI,PUTHUSSERI @ THARIAKU PIRARUR KARA, MANICKAMANGALAM (NOE MATTOOR VILLAGE ALUVA. 3. AMMINNI,D/O.OUSEPH PUTHUSSERI @ THARIAKU PIRARUR KARA, MANICKAMANGALAM (NOE MATTOOR VILLAGE ALUVA. 4. THRESSIA,W/O.POULOSE KALLUKKARAN KIDANGOOR KARA, ANGAMALY VILLAGE. 5. ELIAMMA D/O.OUSEPH PUTHUSSERI @ THARIAKU PIRARUR KARA, MANICKAMANGALAM (NOE MATTOOR VILLAGE ALUVA. R.S.A. NO.973/2007 * 6. ROSE,W/O.JOSEPH, PURAPARAMBIL HOUSE ADJACENT TO DURBAR HALL, ERNAKULAM. (DELETED) *THE NAME OF THE 6TH RESPONDENT IS DELETED FROM THE PARTH ARRAY AT THE RISK OF THE PETITIONER/APPELLANT AS PER ORDER DT. 28.10.2009 IN IA. 2505/2009. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 973 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2010. JUDGMENT The plaintiff in O.S. 416 of 1975 before the Munsiff's Court, Perumbavoor is the appellant. The suit was one for partition. 2. Plaint A schedule property consists of two items of properties. According to the plaintiff, as far as item No.1 is concerned, he had half share and he was entitled to succeed to the share of his father, who owned the other half of plaint item No.1. Plaint item No.2 was also claimed by the plaintiff exclusively. 3. Since the claim regarding partibility of plaint B schedule is given up, it is unnecessary to refer to those facts while disposing of this appeal. The claim put forward as regards item No.1 is concerned, the tenancy rights were obtained by plaintiff's father and plaintiff and therefore consequent on the death of his father, R.S.A.973/2007. 2 apart from having half share, he is entitled to 1/3 share in the leasehold also. In fact initially, the plaintiff claimed 2/3 shares. Accusing the defendants of taking forceful possession from him, the suit was laid. 4. Defendants 1 and 2 remained absent. Defendants 3 and 4 filed a joint written statement. Later defendant No.4 died and his legal heirs were brought on the party array. According to defendants 3 and 4, the suit is not maintainable as there is no cause of action. They contended that the plea of tenancy cannot be decided by the civil court and the matter has to be referred to the Land Tribunal concerned. It was pointed out that late Ouseph had executed a Will in respect of plaint B schedule and the plaintiff cannot challenge the said Will. The Will has been probated. As far as plaint item No.1 was concerned, it solely belonged to the father of the plaintiff and after his death they are entitled to a share. According to them, the plaintiff is not entitled to 1/3 share in the plaint schedule. R.S.A.973/2007. 3 On the basis of these contentions, they prayed for a dismissal of the suit. 5. The appellant had appeared in person. This court appointed M.Sreekumar as Amicus Curie. The learned Amicus Curie pointed out that earlier when the matter came up before this court, this court had confirmed the finding as regards item No.1 was concerned and remanded the matter to the trial court for identification and partibility of item No.2 only. Thereafter after remand both the courts were erred in holding that the dispute regarding item No.1 is also left open. According to learned counsel, as far as the partibility of item No.1 is concerned his client is entitled to his half share and allotment of 1/7thshare of the other half. The finding as regards item No.2 was not challenged. 6. There seems to be considerable force in the above argument. Earlier, in S.A. 37 of 1980 this court was concerned with only item Nos. 1 and 2 in A schedule. This court found that as a matter of fact, the landlord had impleaded the father of the plaintiff and the plaintiff in O.A. R.S.A.973/2007. 4 proceedings before the Land Tribunal. That persuaded the lower appellate court and this court to hold that as far as plaint item No.1 is concerned, both the plaintiff as well as the father had equal rights. After remand, it is seen that the trial court re-opened the finding regarding item No.1. It is observed by both the courts below that there was no attempt to get the properties properly identified. 7. When one refers to the judgment in S.A. 37 of 1980, it would appear that the finding of the court below regarding item No.1 was accepted. The finding was to the effect that as regards item No.1 plaintiff had independent half share and also 1/7th share of the other half which belonged to his father. As regards item No.2, even though the lower appellate court held in favour of the plaintiff it was set aside and the matter was remanded. It could see that the remand relates to item No.2 only. The decision as regards item No.1 is concerned, it has become final. Learned Amicus Curie is fully justified in his submission that the courts below were not justified in re-opening the finding as R.S.A.973/2007. 5 regards item No.1. Both the courts below felt that the whole issue is open for further adjudication. It is not so. A careful reading of the decision of this court in S.A. 37 of 1980 will clearly show that the purpose of the remand was only to identify plaint item No.2 and whether it is partible as claimed by the defendants. Plaint B schedule property, has already been found to be non-partible. No grievance is voiced in the Second Appeal regarding that item. 8. Going by the above discussion, it appears that the claim of the appellant is justified as regards item No.1. As already noticed, before the Land Tribunal the landlord has proceeded against the plaintiff and his father in relation to item No.1. This court on an earlier occasion accepted the plea of the plaintiff. If that be so, the plaintiff is entitled to his half share in plaint item No.1 and as the legal heir of his father, he is entitled to 1/7 share of the other half. The courts below were not justified in granting 1/7 share to the plaintiff in both plaint A schedule. To that extent the decree of the court below needs modification. R.S.A.973/2007. 6 In the result, while setting aside the decrees of the courts below, a preliminary decree is passed as follows: 1. It is declared that the plaintiff is entitled to half share of item No. 1 and he is also entitled to 1/7 of the other half share of item No.1. So he is entitled to 8/14 shares. 2. The defendants are entitled to 1/14 shares each. 3. Since the plaintiff resides on the northern side of the property, as far as possible that portion in his possession may be set apart to him. There will be no order as to costs. The decree of the courts below as far as plaint item No.2 is concerned stands confirmed. P. BHAVADASAN, JUDGE sb.