IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 AS.No. 389 of 1997() -------------------- OS.86/1994 of SUB COURT, VADAKARA .................... APPELLANT(S)/DEFENDANTS D4 TO D6,D8,D9,D12 TO D19, D22 TO D29,D31 AND L.R.'S OF D32: -------------- 1. V.P.PATHU, D/O. AYISSUMMA, RESIDING AT VATTAKKANDY, PUTHIYA PURAYIL HOUSE, NADAKKUTHAZHA AMSOM, PUTHUR DESOM, (VIA) VADAKARA, KOZHIKODE DISTRICT. 2. V.P.SUBAIDA, D/O. MAHMOOD, AGED 32 YEARS, RESIDING VATTAKKANDY, PUTHIYA PURAYIL HOUSE, NADAKKUTHAZHA AMSOM, PUTHUR DESOM, (VIA) VADAKARA, KOZHIKODE DISTRICT. 3. V.P.AFSATH, D/O.MAHMOOD, AGED 38 YEARS, RESIDING VATTAKKANDY, PUTHIYA PURAYIL HOUSE, (VIA) VADAKARA, KOZHIKODE DISTRICT. 4. V.P.SHAMSEER, S/O.MAHOOD, AGED 22 YEARS RESIDING VATTAKKANDY, PUTHIYA PURAYIL HOUSE, (VIA) VADAKARA, KOZHIKODE DISTRICT. 5. V.P.RUBEEA, D/O. MAHMOOD, AGED 19 YEARS, RESIDING VATTAKKANDY, PUTHIYA PURAYIL HOUSE, (VIA) VADAKARA, KOZHIKODE DISTRICT. 6. V.P.SUHARA, D/O.ABOOBACKER, AGED 36 YEARS, RESIDING VATTAKKANDY, PUTHIYA PURAYIL HOUSE, (VIA) VADAKARA, KOZHIKODE DISTRICT. 7. V.P.JAMEELA, D/O. ABOOBACKER, AGED 32 YEARS, RESIDING VATTAKKANDY, PUTHIYA PURAYIL HOUSE, (VIA) VADAKARA, KOZHIKODE DISTRICT. 8.V.P.RAMLA, D/O. ABOOBACKER, AGED 30 YEARS, RESIDING VATTAKKANDY, PUTHIYA PURAYIL HOUSE, (VIA) VADAKARA, KOZHIKODE DISTRICT. 9. MAJEED, S/O.ABOOBACKER, AGED 27 YEARS, RESIDING AT VATTAKKANDY, PUTHIYA PURAYIL HOUSE, (VIA) VADAKARA, KOZHIKODE DISTRICT. 10.MARIKKAR KANDIYIL MAYIMU, D/O. IBRAYI, AGED 35 YEARS, (P.O.) CHORODE, (VIA) BADAGARA. 11. BROTHER KUNHAMMAD.M., S/O. IBRAYI, AGED 25 YEARS, (P.O.)CHORODE, (VIA) BADAGARA. 12.SISTER NAFEESA, D/O. IBRAYI, AGED 22 YEARS, (P.O.)CHORODE, (VIA) BADAGARA. 13.SISTER KUNHAMI AGED 23 YEARS, D/O. IBRAYI, (P.O.)CHORODE, (VIA) BADAGARA. 14. P.R.AMINA, D/O. ALIYUMMA, AGED 38 YEARS, RAYAROTH HOUSE, PAZHAMKAVU, (P.O.)NUT STREET, VADAKARA-4. 15.MEETHALE CHALIL IBRAHIM, S/O. MOOSSA, AGED 60 YEARS, HARITHALAYAM, RAYAROTH, PAZHAMKAVU, (P.O.), NUT STREET, BADAGARA-4. 16. SISTER KUNHI AYISHA.M.C. AGED 32 YEARS, POYIL HOUSE, BEHIND PUNCHIRI MILL, CHORODE, VADAKARA. 17. P.R.MUHAMMED, AGED 65 YEARS, POYIL HOUSE, (P.O.)CHORODE, (VIA) VADAGARA. 18. SHOUKATH, S/O. ABDURAHIMAN, AGED 35 YEARS, KANDAMPARAMBATH HOUSE, CUSTOMS ROAD, (P.O.) BEACH ROAD, BADAGARA. 19. SISTER ASMA, D/O. ABDURAHIMAN, AGED 25 YEARS, KANDAMPARAMBATH HOUSE, CUSTOMS ROAD, (P.O.) BEACH ROAD, BADAGARA. 20. SISTER SAFIYA, D/O. ABDURAHIMAN, AGED 24 YEARS, KANDAMPARAMBATH HOUSE, CUSTOMS ROAD, (P.O.) BEACH ROAD, BADAGARA. 21. SISTER SHAMEENA, D/O. ABDURAHIMAN, AGED 22 YEARS, KANDAMPARAMBATH HOUSE, CUSTOMS ROAD, (P.O.) BEACH ROAD, BADAGARA. 22. P.R.ABDULLA, AGED 60 YEARS, VATTAKKANDY PUTHIYAPURAYIL, (P.O.) PUTHUR, (VIA) VADAKARA. . 23. AYISHA, D/O. KUNHALIYUMMA, AGED 39 YEARS, RAYAROTH HOUSE, PAZHAMKAVU, (P.O.) NUT STREET, (L.R. OF D-32) VADAKARA – 4. 24. SISTER ZAKEERA, D/O. KUNHALIYUMMA, AGED 35 YEARS, RAYAROTH HOUSE, PAZHAMKAVU, (P.O.) NUT STREET, VADAKARA – 4. 25. BROTHER ZULFIKAR, S/O. KUNHALIYUMMA, AGED 32 YEARS RAYAROTH HOUSE, PAZHAMKAVU, (P.O.) NUT STREET, VADAKARA – 4. 26. BROTHER MOHAMMAD RIYAZ, S/O. KUNHALIYUMMA, AGED 28 YEARS RAYAROTH HOUSE, PAZHAMKAVU, (P.O.) NUT STREET, VADAKARA – 4. 27. BROTHER ABDUL JALEEL, S/O. KUNHALIYUMMA, AGED 22 YEARS, RAYAROTH HOUSE, PAZHAMKAVU, (P.O.) NUT STREET, VADAKARA – 4. 28. BORHTER AASHIK, S/O. KUNHALIYUMMA, AGED 16 YEARS, ( MINOR) RAYAROTH HOUSE, PAZHAMKAVU, (P.O.) NUT STREET, VADAKARA – 4. 29. JASSEELA, D/O. KUNHALIYUMMA, AGED 12 YEARS (MINOR) RAYAROTH HOUSE, PAZHAMKAVU, (P.O.) NUT STREET, VADAKARA – 4 (APPELLANTS 28 AND 29 BEING MINOR REPRESENTED BY GUARDIAN BROTHER APPELLANT NO.26). BY ADV. SRI.C.VATHSALAN RESPONDENT(S/PLAINTIFF D1 TO D3, D7,D10 AND D11 & D20. ): --------------- 1. THARAMAKKANDY AYISHU, D/O. MUHAMMED MUSALIAR, AGED 58 YEARS, NADAKKUTHAZHA AMSOM, CHERUSSERI ROAD, PUTHUR DESOM(P.O.) NADAKKUTHAZHHA, (VIA) BADAGARA, KOZHIKODE DISTRICT. 2. THARAMAKKANDU KUMHIPATHU, D/O. MUHAMMED MUSALIAR, AGED 48 YEARS, NADAKKUTHAZHA AMSOM, CHERUSSERI ROAD, PUTHUR DESOM(P.O.) NADAKKUTHAZHHA, (VIA) BADAGARA, KOZHIKODE DISTRICT. 3. K.SAINABA, D/O. MUHAMMED MUSALIAR, AGED 48 YEARS, MARIYOTTUMALAYIL VEEDU (P.O.), PILLASSERI, KUNNAMANGALAM, KOZHIKODE DISTRICT. 4. THARAMAKKANDY ABDURAHIMAN, S/O. MUHAMMED MUSALIAR, AGED 44 YEARS, CHERUSSERI ROAD, NADAKKUTHAZHA AMSOM, PUTHUR DESOM(P.O.) NADAKKUTHAZHHA (VIA) BADAGARA, KOZHIKODE DISTRICT. 5. ASHKAR, S/O. MUHAMMED, AGED 36 YEARS, VATTAKKANDY PUTHIYAPURAYIL, (P.O.) PUTHUR. 6. VATTAKKANDY PUTHIYAPURAYIL MAMMU, S/O. ABOOBACKER, NEAR WOMENS HOSTEL, NADAKKUTHAZHA AMSOM, PUTHUR DESOM, (P.O.), PUTHUR, (VIA) BADAGARA, KOZHIKODE DISTRICT. 7. HASSANKUTTY, S/O. ABOOBACKER, AGED 42 YEARS, NEAR WOMENS HOSTEL, NADAKKUTHAZHA AMSOM, PUTHUR DESOM, (P.O.) PUTHUR (VIA) BADAGARA, KOZHIKODE DISTRICT. 8. HARIS, AGED 23 YEARS, VATTAKKANDI PUTHIYA PURAYIL, (P.O.) PUTHUR, ( VIA) BADAGARA, KOZHIKODE DISTRICT. GOVT.PLEADER SRI.D.ANIL KUMAR. ADV. SRI.N.L.KRISHNAMOORTHY(R1) SRI.K.LAKSHMINARAYANAN SMT.SATHYA SREEPRIYA SRI.P.M.SAJI FOR (R5 TO R7) THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE,J. ------------------------ A.S.No. 389 OF 1997 & Cross Objection in A.S.389/1997 ------------------------ Dated this the of 16th day of October, 2008 JUDGMENT The defendants 4 to 6, 8, 9, 12 to 19, 22 to 29, 31 and the legal representatives of the deceased defendant 32 are the appellants in this appeal which is directed against a decree of partition passed by the Subordinate Judge's Court, Vadakara in a suit which was filed by the first respondent. Respondents 3 to 8 are respectively defendants 1 to 3, 7, 10 , 11 and 20. On the basis of the rival pleadings, the learned Subordinate Judge formulated the following issues for trial; 1. Whether the plaintiff has got any right over the plaint schedule property and the house therein on the basis of the lease deed mentioned in the plaint ? 2. Whether the oral lease mentioned in the said lease deed is true? 3. Whether the executant of the lease deed had any right or possession to grant the lease ? A.S..No. 389/1997 2 4. Whether the deceased Kadeesa was over in possession on the basis of the lease deed? 5. Whether defendants 4 to 15 are in occupation of the house as mentioned in the plaint ? 6. Whether the plaintiff is entitled to recovery of possession or partition as prayed in the suit ? 7. Whether the shares claimed in the plaint are correct ? 8. Whether the right of plaintiff and D1 to 3 if any is lost by adverse possession and limitation ? 9. To what relief if any the plaintiff and D1 to 3 are entitled ? 10. What equities and reservation the parties are entitled to in the event of partition? 11. Whether the suit is bad for non-joinder of necessary parties ? 12. What is the proper order as to costs?” 2. The parties did not adduce any oral evidence. On the side of the plaintiffs Ext.A1 was the solitary item of documentary evidence and on the side of the defendants (the present appellants) Exts.B1 to B2 were marked. Ext.A1 was a certified copy of the Kuzhikanam deed executed by Ammanath in A.S..No. 389/1997 3 favour of Kadeesa. Ext.A1 pertains to the plaint schedule property. Ext.B1 is a certified copy of the partition karar to which Mariyomma, mother of Ammanath is a party. Ext.B2 is a post suit document executed between some of the defendants interse. The learned Subordinate Judge would answer the preliminary issue as to whether the suit is bad for non joinder of necessary parties on account of the non junction of the other legal heirs of the Ammanath in favour of the plaintiff observing as follows; “I do not find any force in this contention because as it is the validity of Ext. A1 lease deed is not challenged and there is no property to be devolved upon the other heirs of Ammanath and therefore I find that other heirs of Ammanath viz. Mammu, Hamsa and Mariyomma or their legal representatives are not necessary parties to this suit.” 3. Issue Nos. 1 to 4 were considered together by the learned Sub Judge. Under these issues, the learned Judge found that there was no dispute as regards Mariyomma's title over the plaint schedule property. On the death of Mariyomma, her interest in the property devolved in the ratio of 2/3 : 1/3 upon her son Ammanath and daughter Aliyumma. The learned Judge A.S..No. 389/1997 4 reiterated his finding that Ext.A1 is a valid lease of the entirety of Ammanath's rights in favour of Kadeessa and held that Kadeessa had thus obtained 2/3rd share which Ammanath was originally having over the property. It was accordingly held that the plaintiff and defendants 1 to 3, being children and legal heirs of Kadeesa who is no more, have acquired co-ownership interest in the property. Thus issue Nos. 1 to 4 were answered in favour of the plaintiff. Considering issue Nos. 5 and 6, the learned Judge has observed that it was admitted that plaintiff and defendants 4 to 15 continued to live in the house on the plaint schedule property and that since parties are co-owners, question of recovery of possession cannot arise. Issue Nos. 5 and 6 were answered accordingly. Issue No. 8 as to whether right of the plaintiff and defendants 1 to 3 have been lost to them by adverse possession and limitation, it was held that in the absence of evidence these issues are to be answered in the negative. Coming to issue No. 7, the learned Judge found that the plaintiff and defendants 1 and 3 are descendants of Ammanath while defendants 4 to 32 are descendants of Aliyumma. On the demise of Mariyumma, Ammanath inherited A.S..No. 389/1997 5 2/3rd right and Aliyumma inherited 1/3rd right. Since 2/3rd right of Ammanath had been conveyed to Kadeesa, the predecessor-in- interest of plaintiff and defendants 1 to 3, the total number of shares are 15, out of which Kadeesa will have 10/15 and defendants 4 to 32 together will have 5/15. It was accordingly, held that upon demise of Kadeesa, the plaintiff came to have 2/15 shares and defendants 1 and 2 came to have 2/15 share and defendant No.3 came to have 4/15 shares. It was also held that defendants 4 to 32 together came to have 5/15 shares. Ext.B2 is a document by which the 21 st defendant assigned his right to defendants 4, 13 and 14 and it was held that the defendants 4, 13 and 14 will be entitled for the right of 21st defendant also. Issue No.10 regarding equities and reservations was relegated to the final decree proceedings. Issue No.12 was answered on the basis of the findings on issue No.7. 4. I have heard the submissions of Sri. C. Vathsalan, the learned counsel for the appellant, Sri. K.Lakshminarayanan, the learned counsel for the first respondent and Sri.C.M.Sajeev, the learned counsel for respondents 5 to 7. Sri. Vathsalan, argued that the finding of the court below regarding the validity of A.S..No. 389/1997 6 Ext.A1 is erroneous. Ext.A1 contains statements which are per se, incorrect and in the absence of documents to corroborate the correctness of the statements therein Ext.A1 should have been ignored by the learned Judge. The learned counsel argued that the court below has proceeded as though Ext.A1 lease deed has been accepted by the appellants. He drew my attention to the pleadings and submitted that the observation to that effect in the judgment is wrong. The learned counsel argued that the finding of the court below regarding the issue of non joinder of necessary parties was erroneous. He submitted that some of the legal heirs of Ammanath have assigned their interest in the property in favour of some of the appellants. He produced before me a certified copy of the Assignment Deed No.194/1962 of the Sub Registry, Vadakara to support the above submission. According to him, the court below did not grant opportunity to the appellants to produce the above document. Once that document is produced, it would be seen that Ext.A2 lease deed is not a valid one and also that the allotment of shares made by the court below is erroneous. The learned counsel submitted that documents like electoral card, ration card, etc. will clearly show A.S..No. 389/1997 7 that the suit property had been in the possession of the appellants for the past more than 30 years. Since opportunity was not given by the court below for producing such documents, the learned counsel fervently requested that the suit may be remanded to the court below so that the appellants get sufficient opportunity for producing all the relevant documents and substantiate their contentions. 5. Sri. K.Lakshminarayanan, the learned counsel for the contesting respondents would support the judgment of the court below. According to the learned counsel, the appellants, who are defendants 4 to 6, 8, 9,12 to 19, 22 to 29, 31 and legal heirs of defendant 32, do not have to worry about the non impledment of the legal heirs of Ammanath. The appellants can raise their title only through Aliyumma. conjunction or otherwise of all the legal heirs of Ammanath can not have bearing regarding the shares which are due to the appellants. Sri.Lakshminarayanan submitted that Ext.A1 lease deed was allowed to be proved in evidence by the appellants without any opposition. No counter evidence was adduced by the appellants to challenge the recitals in Ext.A1. The appellants are not entitled to challenge Ext.A1 A.S..No. 389/1997 8 before the court of appeal. The prominent contention raised by the appellants was one of deprivation of the title of plaintiffs and defendants 1 to 3 by adverse possession and limitation. Since the parties are tracing title to a common ancestor's property, it has to be taken that the parties are co-owners. Possession by one co-owner will be possession on behalf of all the co-owners. Even if it is seen that these appellants are in possession of the properties such possession is to be deemed as possession on behalf of the other co-owners. Since parties are co-owners, mere adverse possession is not sufficient to defeat the title of the respondents. What is necessary is ouster. No plea of ouster has been raised, so submitted Sri.Lakshminarayanan. 6. I have anxiously considered the submissions addressed at the bar. I have gone through the entire evidence on record. Answering the issue No. 11 regarding the non joinder of necessary parties, the learned Subordinate Judge has observed that the validity of Ext.A1 lease deed has not been disputed. The above observation is clearly erroneous. It has been specifically contended in paragraph 2 of the written statement A.S..No. 389/1997 9 filed by the appellants and Kadeesa- the mother of the plaintiffs and defendants 1 to 3 did not obtain any title to the plaint schedule property under the lease deed in question and that the executant of the lease deed had no right to execute the lease deed. It is further contended that the recitals in the document that the property is already under the possession of Kadeesa under a oral lease is a false statement. Written statement proceeds to deny almost all the recitals in Ext.A1. Elsewhere, it is specifically contended that the suit is a collusive suit filed by the plaintiffs and defendants 1 to 3 for defeating the rights of the appellants. I do not know how in the teeth of such contentions, the learned Sub Judge could observe that the validity of Ext.A1 lease deed is not in dispute. It is true that the marking of Ext.A1 lease deed was not opposed to by the appellants. But, mere marking of a document does not amount to proof regarding the recitals contained therein especially in this case where serious contentions had been raised regarding the correctness of the recitals. Moreover, as submitted by Sri.Vathsalan, it is very difficult to accept the claims of the executant contained in Ext.A1 in the absence of corroborative A.S..No. 389/1997 10 evidence. Sri.Ammanath claims his title to a Karar. But, significantly no details of the karar, date, number, whether it was registered or unregistered, etc. are given in Ext.A1. In Ext.A1 Ammanath claims absolute ownership upon devolution of the entirety of his mother's interest also. No details regarding how Ammanath mother's interest was obtained by him are given in Ext.A1. Similarly, Ext.A1 recites that the properties were already in the possession of Kadeesa on the basis of the oral lease. No details regarding this oral lease are seen given in Ext.A1. According to me, the learned Sub Judge was not justified in placing reliance on Ext.A1 though the same is a registered document especifically when the same was seriously disputed by the appellants. So also, in my opinion, the learned sub Judge's finding on the issue regarding the non joinder of necessary parties is not correct. The learned Judge as already indicated proceeds on the basis that Ext.A1 is not disputed and hence the legal heirs of Ammanath need not be on the array of parties in the suit. But, in my opinion, the issue as to whether Ext.A1 is a valid document is an issue in which the other legal heirs of Ammanath are vitally interested and their presence is necessary A.S..No. 389/1997 11 for deciding that issue. Document No.194/1962 of the Sub Registry, Vadakara which was shown to me by Vathsalan is executed by some of the legal heirs of Ammanath. That document will militate against Ext.A1. 7. On reading through the judgment of the court below, it is seen that the court has proceeded on the basis that it is admitted that Kadeesa and the plaintiffs is in possession of the plaint schedule property. In fact, there is contention that since 1955 Kadeesa was residing in her husband's house at Tharamakkandy and that she died in 1984 at Tharamakkandy. The very circumstance that the plaintiffs themselves sued for recovery of possession also will indicate that the plaintiffs concede that they are out of possession. Of course, the learned Judge is correct in observing that there was no evidence to substantiate the appellants' plea of adverse possession and limitation. 8. The appellants have a grievance that the learned Sub Judge did not grant them adequate opportunity for adducing evidence. Having gone through the proceedings paper of the court below, I am of the view that this complaint, which the A.S..No. 389/1997 12 appellants levelled against the learned judge, is without basis. If the appellants did not adduce the evidence, they themselves are to blame. However, I feel that in the interest of justice opportunity should be given to the appellants for adducing whatever evidence they have for substantiating their contention regarding Ext.A1 lease deed, the correct share due to them and also the one regarding adverse possession and limitation. But, I am not inclined to grant such opportunity unless the same is on imposition of heavy cost. The observation, I have already entered into regarding the interest of the other legal heirs of Ammanath before the court while deciding the genuineness and value of Ext.A1 also persuades me to pass an order of remand. 9. The result of the discussion is that the judgment and decree of the court below are set aside and the suit is remanded back to the court below. The appellant is directed to pay Rs. 10,000/- by way of cost to the respondents through their counsel in this court within one month from today. Once cost is paid, the judgment will become operative. Transmit the records back to the court below. 10. Appellant is permitted to produce the certified copy of A.S..No. 389/1997 13 assignment deed No. 194 of 1962 of Sub Registry, Vadakara and any other evidence which the appellant is desirous of adducing. If the appellant adduces evidence, the court below will permit the respondents to adduce counter evidence and the learned Subordinate Judge will pass revised judgment on evaluation of the evidence already on record and the evidence which is adduced pursuant to this order of remand. 11. Parties will enter appearance before the court below pursuant to the order of remand on 15-12-2008. Being an old suit, the learned Subordinate Judge will expedite matters. Accordingly, appeal and cross objection allowed by way of remand. No costs. (PIUS.C.KURIAKOSE,JUDGE) dpk/sv A.S..No. 389/1997 14 PIUS C.KURIAKOSE, J -------------------------- A.S.389/1997 & CROSS OBJECTION IN A.S.389/97 JUDGMENT 17TH OCTOBER 2008