IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 RSA.No. 149 of 2011(A) ----------------------------------- AS.NO. 342/2007 of DISTRICT COURT, PALAKKAD OS.NO. 308/2002 of ADDL.SUB COURT, PALAKKAD .................... APPELLANTS/APPELLANTS/PLAINTIFFS 2 TO 4 --------------------------------------------------------------------- 1. K.C.CHENTHAMARAKSHAN, S/O.CHANDRASEKHARAN. 2. K.C.SURESHE, S/O.CHANDRASEKHARAN. 3. K.C.RAMESH, S/O.CHANDRASEKHARAN. ALL ARE RESIDING AT KORADIPADAM KALAM, CHULLIMADA, ERIMAYUR P.O.,ALATHUR TALUK, PALAKKAD-678 546. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE BY ADVS. SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): RESPONDENTS/DEFENDANTS ---------------------------------------------------------------------- 1. SYAMANTHAKAM, D/O APPUKUTTAN. 2. RAMACHANDRAN, S/O.APPUKUTTAN. BOTH ARE RESIDING AT VADAKKUMPURAM, ERIMAYUR POST, ALATHUR TALUK, PLAKKAD-678 546. R1 & R2 BY ADV. SRI.NAGARAJ NARAYANAN SRI. SAIJO HASSAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - R.S.A No. 149 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of June, 2011 J U D G M E N T Plaintiffs 2 to 4 in O.S No.308 of 2002 on the file of Sub Court, Palakkad are the appellants. Respondents are the defendants. Suit was instituted for recovery of possession, on the strength of title. Appellants claimed that plaint schedule property was part of plaint A schedule property obtained under Ext.A2 partition deed, by the mother Saradha and her daughters, first appellant and her sister Ulpalakshy. Saradha died on 10.08.1979 and on her death, her right devolved on the first appellant and Ulpalakshy who died in 1997. Under Ext.A3 registered Will dated 17.03.1997 Ulpalakshy bequeathed her rights in favour of appellants 2 to 4 and, therefore, they have title to the property and respondents have no right or title to the property. Respondents resisted the suit contending that Saradha had earlier filed O.S No.204 of 1975 before Munsiff Court, Alathur claiming possession of the property seeking a decree for permanent prohibitory injunction against Padmanabhan, predecessor-in-interest of the respondents and the suit was dismissed and Padmanabhan continued R.S.A No.149 of 2011 (A) -2- possession as a tenant of the plaint A schedule property and as per Ext.B1 order in O.A No.1960 of 1976 the Land Tribunal, Alathur assigned the jenm right in favour of Padmanabhan and against Ext.A1 order, though AA No.714 of 1978 was filed challenging Ext.B2 order, it was dismissed and purchase certificate also has been issued and the suit is, therefore, barred by res judicata and the appellants are not entitled to the easement right. 2. Learned Munsiff on appreciation of the evidence of DW1 and Exts.A1 to A6 and B1 to B8, dismissed the suit holding that by Ext.B1 order, Land Tribunal has already been assigned the jenm right in favour of the tenant and the order has become final and in such circumstances, appellants are not entitled to claim title to the property or recover possession of the property. Appellants challenged the judgment before District Court, Palakkad in A.S No.342 of 2007. The learned District Judge on re-appreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is was challenged in this appeal. 3. Learned counsel appearing for the appellants was heard. The argument of the learned counsel is that under Ext.A2 partition deed, plaint A schedule property therein was allotted to Saradha, the mother, she was not R.S.A No.149 of 2011 (A) -3- granted any right of alienation or right to create any charge, providing that on death the property would devolve on her two minor daughters, the first appellant and Ulpalakshy. When O.A No.1960 of 1976 was filed and Ext.B1 order was passed, appellants and Ulpalakshy were not made parties in the O.A. It is the argument that, therefore, that order of the Land Tribunal, is not binding on the appellants. It is argued that the appellants are entitled to ignore the order of the Land Tribunal as well as the purchase certificate as they are not parties to the proceedings and the courts below should have granted the decree declaring the title of the appellant. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Ext.A2 partition deed was entered into by the mother and the two minor children in 1958. Under Ext.A2, the properties were divided into three. Plaint A schedule property was allotted to the mother Saradha, plaint B schedule property to the first appellant and plaint C schedule property to the other daughter Ulpalakshy. As is clear from Ext.A2, first appellant and Ulpalakshy had no right or title to the property, as they would the title only on the death of Saradha. Saradha admittedly, instituted O.S No.204 of 1975 before Munsiff Court, Alathur against R.S.A No.149 of 2011 (A) -4- Padmanabhan, the predecessor-in-interest of the respondents seeking a decree for injunction as evidenced by Ext.B5 plaint. Under Ext.B6 written statement Padmanabhan claimed possession of the property contending that he is a cultivating tenant. Though the suit was originally decreed, it was challenged in appeal and the suit was remanded for fresh disposal to the trial court. It is also admitted that subsequently, after the death of Saradha, the plaintiff therein, the legal heirs including the first appellant did not prosecute the case further. Hence the suit was dismissed as abated. O.A No.1960 of 1976 was filed before the Land Tribunal, Alathur for purchase of jenm right of the plaint schedule property. Saradha was shown the landlord. By Ext.B1 order dated 27.02.1978, the jenm right was assigned in favour of the tenant. Though it was challenged in A.A No.749/1978, the appeal was dismissed. It is not disputed that the order of the Land Tribunal has become final, as no revision was filed thereafter. Though the learned counsel argued that as the first appellant and Ulpalakshy were not parties to the Land Tribunal proceedings, Ext.B1 order is not binding on the appellants, the submission cannot be accepted. First appellant and Ulpalakshy are entitled to notice from the Land Tribunal in the O.A proceeding, only if they have a subsisting R.S.A No.149 of 2011 (A) -5- right on that day. Ext.A2 makes it clear that till the death of Saradha, she is the absolute owner of the property, though she was not given the right of alienation and it is provided that after her death, the property would devolve on her daughters. Therefore, during the life time of Saradha neither the first appellant, nor Ulpalakshy could claim title to the property as the title vested with Saradha. Therefore, Ext.B1 order is valid and binding on the appellants who claim right under Saradha as well as the plaint schedule property. In such circumstances, when the jenm right has already been assigned in favour of respondents, appellants cannot claim title to the plaint schedule property. They are also not entitled to claim recovery of possession sought for. As no substantial question of law is involved, the appeal is dismissed. Sd/- M.SASIDHARAN NAMBIAR JUDGE //TRUE COPY// P.A. TO JUDGE krj