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. 234 of 2004() --------------------- AS.70/1998 of SUB COURT,NEYYATTINKARA OS.85/1997 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT(1ST RESPODNENT/1ST DEFENDANT) ----------------------------------------------------------- KUNJI MEENAKSHY, KAITHOORKONAM, EDAKKOD DESOM, PALLICHAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.SUMAN CHAKRAVARTHY SRI.M.R.RAJESH RESPONDENT(S): (APPELLANT AND RESPONDENTS 1 TO 4/PNTF.& DEF.2TO 4 ----------------------------------------------------------------- 1. KESAVAN CHELLAYYAN, CHEMMANNUKUZHI KIZHAKKUMKARA PUTHEN VEEDU, MARUVAMOODU, PALLICHAL VILLAGE, PALLICHAL DESOM, THIRUVANANTHAPURAM DIST. 2. LEKSHMANAN MANIYAN, KAITHOORKONAM, EDAKKAD DESOM, PALLICHAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. 3. ANITHA D/O. SUSEELA, DO. DO. 4. SUSEELA CHITHRA, DO. DO. ADV. SRI.L.MOHANAN FOR R1 SMT.LIGEY ANTONY FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.234 OF 2004 --------------------------------------------- Dated 1st June, 2011 JUDGMENT First defendant in O.S.85/1997 on the file of Principal Munsiff court, Neyyattinkara is the appellant. First respondent is the plaintiff and other respondents, the other defendants in the suit. First respondent instituted the suit seeking a decree for partition of the plaint schedule property, contending that plaint schedule property was obtained by mother Appipennu Kunji under Ext.A1 mortgage deed No.4026/65, executed by Padmanabhan Nair Narayanan Nair and the mortgage is irredeemable by efflux of time and hence the mother was the absolute owner of the property. On the death of the RSA 234/04 2 mother, it devolved on the first respondent/plaintiff, appellant/first defendant and Lekshmanan, the deceased son. Respondents 2 and 4 are the his legal heirs. First respondent sought division of the plaint schedule property into three shares and allotment of one such share to heirs. All the defendants jointly filed a written statement denying the plaint allegations and contending that plaint schedule property was obtained by defendants 1 to 4 as kudikidappu, as per order in O.A.125/1994 on 1/6/1995 and hence the property is not available for partition. It is contended that first respondent was not in possession of the property and he has no right to seek partition. 2. Learned Munsiff on the evidence of PW1, Exts.A1 and B1 dismissed the suit relying on Ext.B1 purchase certificate holding that as RSA 234/04 3 Land Tribunal, Neyyattinkara assigned jenm right in favour of the defendants, the property is not available for partition. First respondent challenged the judgment before Sub Court, Neyyattinkara in A.S.70/1998. Learned Sub Judge on re-appreciation of the evidence allowed the appeal finding that though Ext.B1 purchase certificate was obtained by some of the co-owners it should enure to the benefit of all the co-owners. A preliminary decree was passed directing division of plaint schedule property into three shares and allotment of one such share to the first respondent. Before the first appellate court, respondents/defendants did not appear. Ext.B1 was not available among the records, as it was obtained back by the appellant without substituting the same. 3. Learned counsel appearing for the appellant and first respondent were heard. RSA 234/04 4 4. Argument of the learned counsel appearing for the appellant is that first respondent could not appear before the first appellate court as she did not receive any notice and first appellate court had no occasion to consider Ext.B1 purchase certificate, as it was not available among the records. Learned counsel argued that there is no pleading that Ext.B1 purchase certificate was obtained for and on behalf of all the co-owners and as provided under Section 72 K of Kerala Land Reforms Act, Ext.B1 is conclusive proof of the assignment of the entire rights in favour of the person shown therein and therefore, first respondent is not entitled to claim any share. 5. The written statement jointly filed by the appellant along with respondents, shows that though paragraphs 1 to 3 of the RSA 234/04 5 plaint are denied, there is no specific denial of the case that plaint schedule property was obtained by the mother under Ext.A1. In paragraph 4 it is contended that kudikidappu certificate was obtained pursuant to the order of the Land Tribunal, Neyyattinkara in O.A.125/1994. There is no pleading that there was an independent lease in favour of respondents 1 to 4, so as to enable them to claim either exclusive tenancy right or kudikidppu right. Ext.A1 mortgage was created in 1965. There is no case that when Ext.A1 mortgage was created children of the mortgagee was in possession of the property as a tenant. Even when PW1 was cross examined there was no case of an independent lease in favour of either the appellant or appellant along with other defendants. 6. Fact that the property was obtained RSA 234/04 6 under Ext.A1 was not disputed at the time of the evidence. It is thus clear that plaint schedule property originally belonged to the mother Appipennu Kunji under Ext.A1. True, Ext.B1 purchase certificate was obtained by the appellant and respondents 2 to 4, legal heirs of Lekshmanan and excluding first respondent the son. The question is what is the value of purchase certificate obtained by one of the co-owners in respect of the co-ownership property. As rightly found by the first appellate court, it should definitely enure to the benefit of all the co-owners. Therefore, Ext.B1 purchase certificate should enure to the benefit of not only the defendants but the plaintiff also. As the property originally belonged to the mother, on her death, it devolved equally on all her children including the appellant, the daughter, first respondent, RSA 234/04 7 the son and deceased Lekshmanan. First appellate court therefore, rightly held that plaint schedule property is available for partition as there is no plea of ouster and adverse possession raised by the appellant or other respondents. Being a co-owner even if first respondent is in physical possession of the property, such possession, in the absence of ouster can never be adverse to the non possessing co-owner. Hence first respondent should be treated as in joint possession. Therefore, I find no reason to interfere with the preliminary decree passed by the first appellate court. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.