IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 AS.No. 552 of 2001 (C) --------------------- ( OS.221/1987 of PRINCIPAL SUB COURT, PALAKKAD) .................... APPELLANT/PLAINTIFF: ------------------------------------ E.K.SAIDALI, S/O.IBRAHIMKUTTY SAHIB, RESIDING AT KATTUSSERY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.KRISHNA PRASAD. S VS RESPONDENTS/DEFENDANTS AND SUPPL. DEFENDANT NO.10: ------------------------------------------------------------------------------------------ 1. E.K.UMMER, S/O.IBRAHIMKUTTY SAHIB, RESIDING AT CHUNDAKATTIL, KAVASSERI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 2. E.K.NABEESA UMMER, W/O.K.SIDDIQ, RESIDING AT NELLIYANGUNNATHU, KAVASSERI AMSOM, ALATHUR TALUK,PALAKKAD DISTRICT. 3. M.SERIFA UMMA, W/O.A.HAMSA, RESIDING AT KATTUSSERI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 4. JAMEELA UMMA, W/O.P.H.MOIDU, PROPRIETOR, FANCY CLOTH STORE, KAVILPPAD A,MSOM, OLAVAKKODE,PALAKKAD TALUK. 5. NOORJAHAN UMMA, W/O.I.ABDUL MAJID, RESIDING AT NEW BRIGHT, SHOBA CORNER, COIMBATORE. 6. KAMARUNNISA UMMA, W/O.NOORUDIN, RESIDING AT NANDAKIZHAYIL, KOLLENGODE AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. 7. M.BASHEER, S/O.E.K.MUHAMMED, RESIDING AT CHUNDAKKATTIL, NEW HOTEL FRIEDNS, KAVASSERI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 8. M.ABDUL KHADER, S/O.E.K.MUHAMMED, RESIDING AT CHUNDAKKATTIL, KAVASSERI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 9. M.SUBAYAR, S/O.E.K.MUHAMMED, RESIDING AT CHUNDAKKATTIL, KAVASSERI AMSOM, ALATHUR TALUK,PALAKKAD DISTRICT. 10. HAMSA SAHIB, S/O.ABDULLHA SAHIB, RESIDING AT NEAR TRAVELERS BUNGALOW, KATTUSSERI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. R10 BY ADVS. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.M.GOPIKRISHNAN NAMBIAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 6 /10 /2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 552 OF 2001 = = = = = = = = = = = = = = = Dated this the 6th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Palakkad in O.S.221/87. The suit is one for partition and the plaint schedule property was ordered to be divided by the trial court and in appeal the judgment and decree in relation to item 8 of the plaint schedule property was set aside and the matter was remanded back to the trial court for identification and finding on title. After remand a Commission was taken out and ultimately the Court held that item 8 of the plaint schedule property is not available for division. It is against that decision the plaintiff has come up in appeal. The brief facts necessary for the disposal of the appeal are A.S. 552 OF 2001 -2- stated as follows. Ibrahim kutty is the father and plaintiff, defendants 1 and 2 and Mohammad Sahib are the four children. Ibrahim kutty died in 29.10.82 and Mohammad Sahib on 30.6.76. There was a partition deed entered into between the father and sons and by virtue of Ext.B1, B schedule was set apart to the son Mohammed Sahib. Item 8 of the said B schedule is the subject matter of dispute now before the Court. Since Mohammed Sahib died, the father had 1/6 share over the same and legal representatives of the father on his death had claimed partition with respect to that right. The subject matter now in dispute is only item No.8 of the plaint schedule property which is comprised in Sy.No.208/24 and a perusal of the partition deed namely Ext.B1 would reveal that 64 cents in 208/24 is set apart to the share of Mohammad Sahib and 34 cents set apart to the share of his brother Ummer. The 10th defendant who is the A.S. 552 OF 2001 -3- husband of the 3rd defendant would contend that he had obtained 20 cents of property by virtue of Ext.B21 and he came into possession of other property by virtue of a lease from Venkateswara Iyer and therefore item 8 is not available for division. Being a suit for partition it is the duty of the plaintiff to prove the title over item 8 of the plaint schedule property. A document of partition is not a document of title by itself especially when it is disputed. I had gone through the document, Ext.B1 and there are no recitals in the document referring the anterior title. 2. Whereas so far as the 10th defendant is concerned 20 cents of property is purchased by him by virtue of Ext.B21 in the year 1957 it has also come out in evidence that in item 8 of the plaint schedule property a major chunk forms part and parcel of a mill which is run by the 10th defendant. It can be seen from the materials A.S. 552 OF 2001 -4- available that the mill and compound runs to about 56 cents of property out of which 5 cents is comprised in 208/23 and 51 cents in 208/24. The Commissioner who had been appointed in the matter had specifically reported that this 56 cents forms part and parcel of the 64 cents mentioned in Ext.B1. It has also to be stated the learned trial judge has referred to a large number of documents right from the inception regarding seeking permission to construct a mill then the licence and other materials, no objection certificate etc. which would indicate that no objection has been received from Mohammad Sahib and Ibrahim kutty for the construction of the mill. The trial court had also found that the construction of the mill started in the year 1970 and it was constructed in 1978. Even at a point of time i.e. in 1957 the 10th defendant had obtained right over 20 cents of property. So the materials available A.S. 552 OF 2001 -5- would reveal that the 10th defendant has got right over the property in 208/24. The total extent of the property is one acre and 21 cents. Now by virtue of the Commissioner's report that 56 cents out of 64 cents of item 8 of B schedule in Ext.B1 is covered by the mill and compound which is possessed by the 10th defendant. Unless there are convincing documents to the contrary, it cannot be said that the plaintiff is having title to or possession over that property. Not even a scrap of paper other than Ext.B1 is produced to show that the property described as item 8 in B schedule was enjoyed by Mohammad Sahib or Ibrahim kutty or the legal representatives. So unless and until that factum is established it may not be possible for a Court to arrive at a decision that the plaintiff has succeeded in establishing the title over item 8 of the plaint schedule property. So from the Commissioner's report and A.S. 552 OF 2001 -6- the documents produced by the defendants it has to be held that it is the 10th defendant who is having manner of right and possession over the property. Therefore I also concur with the trial court that item 8 of the plaint schedule property is not available for partition. Therefore the judgment and decree of the trial court are confirmed and the appeal is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 552 OF 2001 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 552 OF 2001 = = = = = = = = = = = J U D G M E N T 6th October, 2010.