IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 AS.No. 438 of 1995(C) --------------------------------- (AGAINST THE DECREE AND JUDGMENT IN O.S.178/91 DTD.17/4/1995 OF SUB COURT, OTTAPALAM) APPELLANT(S): 2ND DEFENDANT: ---------------------------------------------------- *SRI.ABOOBACKER – (D I E D – LRS IMPLEADED) S/O.PADUVAMBADAN AYAMU HAJI, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, OTTAPALAM TALUK. (2ND DEFENDANT) *THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT: A2. BEEVI, W/O. DECEASED ABUBACKER, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. A3. MOHAMMED, S/O.DECEASED ABUBACKER, ...DO....DO....... A4. AYSHA, D/O.DECEASED ABUBACKER, ..DO..DO... A5. THITHUTTY, D/O.DECEASED ABUBACKER, ...DO..D.... A6. FATHIMAKUTTY, D/O.DECEASED ABUBACKER, ..DO..DO.. A7. JAMEELA, D/O.DECEASED ABUBACKER, ..DO..DO... A8. ABDUL ALI, S/O.DECEASED ABUBACKER, ...DO..DO.... A9. UNNI MOOSA, S/O.DECEASED ABUBACKER, ..DO..DO... (*ADDL.APPELLANTS 2 TO 9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT VIDE ORDER DTD. 8/11/2004 ON I.A.NO.2130/2003) BY ADV. SRI.P.K.MUHAMMED SRI.E.M.ABDUL KHADIR SRI.O.D.SIVADAS Kss ..2/- ...2...... A.S.NO.438/1995 RESPONDENT(S): PLAINTIFF 1 TO 8 AND DEFENDANT 1,3 TO 5: ----------------------------------------------------------------------------------------------- 1. AMINUMMA, AGED 55 YEARS, W/O.PADUVAMBADAN UMMAR, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK (1ST PLAINTIFF). 2. CHILDREN: MUHAMMED ALIAS KUNHAPPA, AGED 35 YEARS, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK (2ND PLAINTIFF). 3. ABOOBACKER,AGED 33 YEARS, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK (3RD PLAINTIFF). 4. FATHIMA SUHARA, AGED 25 YEARS, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK (4TH PLAINTIFF). 5. ABDUL GAFOOR, AGED 23 YEARS, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK (5TH PLAINTIFF). 6. KYROJA, AGED 20 YEARS, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK (6TH PLAINTIFF). 7. ASHARAF, AGED 18 YEARS, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK (7TH PLAINTIFF). 8. SHAREEF (MINOR), AGED 16 YEARS, MINOR BY GUARDIAN 2ND RESPONDENT, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK (8TH PLAINTIFF). 9. PADUVAMBADAN AYAMU HAJI'S SON MUHAMMED ALIAS KUNHAPPA, AGED 64 YEAS, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, OTTAPALAM TALUK (1ST DEFENDANT). 10. PADUVAMBADAN UMMER'S CHILDREN: ABDUL ALI, AGED 31 YEARS, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, OTTAPALAM TALUK (3RD DEFENDANT) Kss ..3/- ....3...... A.S.NO.438/1995 11. HAMSA, AGED 27 YEARS, SUPPLEMENTAL: RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, OTTAPALAM TALUK (4TH DEFENDANT). 12. ABOOBACKER, AGED 40 YEARS, S/O.PADUVAMBADAN MUHAMMED ALIAS KUNHAPPA, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM, OTTAPALAM TALUK (5TH DEFENDANT). ADV. SRI.C.P.DAMODARAN NAIR FOR R1 TO R6 & R8 SRI.D.KRISHNAPRASAD FOR R1 TO R6 & R8 SMT.JAYASREE.S. FOR R9 & R12 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/01/2009 ALONG WITH A.S.NO.530 OF 1995, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.3341/1995 IN A.S.NO.438/1995 DISMISSED 9/01/2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NOs. 438 & 530 OF 1995 = = = = = = = = = = = = = = = Dated this the 9th day of January, 2009. J U D G M E N T These appeals are preferred against the judgment and decree of the Subordinate Judge, Ottappalam in O.S.178/91. A.S.438/95 is filed by the 2nd defendant in the suit and A.S.530/95 is filed by defendants 1 and 5 against the liability to pay mesne profits. The suit is one for partition. It is the case of the plaintiffs that the property described in the plaint schedule property belonged to the father of the plaintiffs 2 to 8, defendants 3 and 4 and the husband of the first plaintiff namely Ummer and also defendants 1 and 2 who are the children of Ayamu Haji by virtue of a document Ext.A1 and thereafter these persons obtained possession of the property under Ext.A2 and thereafter defendants 1 and 2 are in possession of the property and therefore the plaintiffs have prayed for partition and separation of 1/3 shares in the plaint schedule property with mesne profits from the defendants. A.S. NOs. 438 & 530 OF 1995 -2- The first defendant had raised a contention that the averment in the plaint that the property belonges to three is incorrect. The property belonged to Gopalan Nair and others and there was a pattam chit executed by Govindan Nair and what was transferred in their favour was only the jenm right and a portion of property was taken on lease by Aboobacker and 5th defendant and they are in possession of the respective portion of property. The 2nd defendant also would contend that he had taken possession of the property as a lessee under Govindan Nair prior to 1.4.64 and so there was no occasion for defendants 1 and 2 and the plaintiffs' predecessor Ummer to obtain possession of the property and therefore the suit for partition is not maintainable. It is also contended that the description, extent and the boundaries shown in the plaint schedule property are not correct and there cannot be any partition without actually identifying the property. 2. In the trial court PW1 and DW1 were examined. Exts.A1 to A5(f) and B1 to B3(d) were marked and the trial court ordered partition of the property with future mesne A.S. NOs. 438 & 530 OF 1995 -3- profits and the defendants 1, 2 and 5 were liable to pay the mesne profits. It is against that decision the 2nd defendant has preferred A.S.438/95 and the 5th defendant has preferred A.S.530/95. The points that arise for determination are: (1) Whether the plaintiffs have got any partible right to get the property be divided by metes and bounds? (2) Whether the case set up by the defendants regarding lease is true? (3) Whether there is anything to interfere with the decision rendered by the trial court? Points 1 to 3: 3. For the sake of convenience all these points are answered together. A perusal of the documents produced in this case would reveal that the property described in the plaint schedule along with other properties was obtained by the husband of Bhargavi Amma namely Gopalan Nair under the partition deed of 1958 and that he had executed a gift in favour of Bhargavi Amma and her children in 1961. These persons namely Bhargavi Amma, Gopalan Nair and their A.S. NOs. 438 & 530 OF 1995 -4- children had transferred their right in the property described in Ext.A1 by virtue of the said document and it is seen from the recitals in the document that at the time of effecting the transfer the property was outstanding with the mortgagee, Karthiayani Amma and the rights were transferred with the right to redeem the mortgage. Subsequently by virtue of Ext.A2 document in the year 1967 these persons namely Kunjhappa, Aboobecker and Ummer got redemption of the property and the recitals in that document would go to show that the said three persons obtained possession of the plaint schedule property described in Ext.A1 and A2. So prima facie materials available in the form of Exts.A1 and A2 would show that defendants 1 and 2 and Ummer had obtained right and possession over the property under Exts.A1 and A2. The plaintiffs and defendants 3 and 4 are the legal representatives of the deceased Ummer and they are claiming 1/3 shares in the property by virtue of Exts.A1 and A2. It is contended by defendants 1 and 2 that the plaint schedule property is not properly identifiable and that the property was outstanding A.S. NOs. 438 & 530 OF 1995 -5- with one Govindan Nair as lessee by virtue of Ext.B1 marupattam executed on 24.3.64 and prior to 1.4.64 the 2nd defendant had taken lease of a portion of one acre and 77 cents of property from the said Govindan Nair and thereby he is in possession of that property as a tenant and that he had paid levy as well as revenue to the property and therefore that property is not at all partible. It is also contended that another portion of the property had been taken on lease by the son of the first defendant namely 5th defendant and so it is also not partible. It is true there is a marupattom, Ext.B1 executed between Bhargavi Amma and Govindan Nair. This Govindan Nair is the brother of Gopalan Nair. Defendants 1, 2 and 5 are setting up tenancy with respect to the property covered by Ext.B1 by virtue of an oral lease in the year 1964, i.e. prior to 1.4.64. It is to be remembered that the 2nd defendant and the first defendant are parties to Exts.A1 and A2 which had come into being after the execution of Ext.B1. By virtue of the clear, crystal recitals in Exts.A1 and A2 it can be seen that the property described in Ext.A1 was outstanding A.S. NOs. 438 & 530 OF 1995 -6- in the possession of one Karthiayani Amma who is a mortgagee and by virtue of Ext.A2 document she had surrendered that property on receipt of the mortgage amount and thereby defendants 1 and 2 and Ummer had come into possession of that property. So when these defendants namely defendants 1 and 2 are parties to Exts.A1 and A2 they cannot shut their eyes and contend for the position that Ext.B1 is a document that has to be relied upon for the purpose of establishing their case. Now, even if we take it for argument sake that there has been a document called Ext.B1 then things will not end there, unless the defendants are able to establish that there was an oral lease given by Govindan Nair in favour of defendants 2 and 5 as contended by them. There is absolutely no evidence regarding the said oral lease. Admittedly, Mr.Ummer died and it was defendants 1 and 2 who were in the locality. Levy notices produced in this case would establish that with respect to the property covered by Sy.No.620/1 and 620/3 having a total extent of 73 + 30 cents they have been measuring the levy. When it is the case of the A.S. NOs. 438 & 530 OF 1995 -7- plaintiffs that they were in possession and were looking after the property the mere measurement of levy or payment of tax by them will not ipso facto confer any right as independent lessees of the properties. If really there had been a lease arrangement between Govidan Nair and the defendants as contended by them at least after coming into force of Kerala Land Reforms Act and especially after the implementation of S.72 there was a duty cast upon those tenants to move for getting certificate of purchase to show that they were tenants of the property under Govindan Nair. It has also not been done in this case. So the mere production of Ext.B1 by itself would not be sufficient to dislodge the evidentiary value of Exts.A1 and A2 wherein defendants 1 and 2 are parties to the document and it is executed in favour of them by this Bhargavi Amma and others. Therefore I repel the contention of lease set up by defendants 1, 2 and 5 in this case. 4. The next point that arises for consideration is regarding the identity of the property. I find that there is some confusion with respect to the extent of property. If we A.S. NOs. 438 & 530 OF 1995 -8- go by the actual measurement under Ext.A1 it will come to 2666 perukkam which would be 2.22 acres whereas the extent of the property shown in the plaint is about 6 and 1/2 acres of land. But it is a well settled proposition that the property can be earmarked by either measurements or by description of the boundaries and it is a settled position of law the least erroneous shall be taken into consideration for fixing the property. Therefore I make it very clear, at the time of the final decree when a Commissioner is deputed the Commissioner shall identify the property covered by Ext.A1 with respect to the measurement, survey number, boundary and then divide the properties in accordance with law as directed in the preliminary decree. 5. Now lastly, it is on the question of mesne profits. There is no case for the defendants that they have paid any mesne profits to the plaintiffs and defendants 3 and 4. It is the case of the defendants that defendants 1, 2 and 5 are in possession of the property most probably of separate extent of property. It is a matter in between them but so far as the A.S. NOs. 438 & 530 OF 1995 -9- plaintiffs and defendants 3 and 4 are concerned they are entitled to get share of mesne profits from defendants 1, 2 and 5 and the right, quantum, interse liability and proportion of liability can be fixed at the time of passing of the final decree proceedings. Therefore both these appeals lack merit and they are dismissed but subject to the observations contained in this judgment. M.N. KRISHNAN, JUDGE. ul/- A.S. NOs. 438 & 530 OF 1995 -10- M.N. KRISHNAN, J. = = = = = = = = = = A.S. NOs. 438 & 530 OF 1995 = = = = = = = = = = = J U D G M E N T 9th January, 2009.