IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 RSA.No. 622 of 2010() --------------------- AS.144/2008 of II ADDL.SUB COURT,KOZHIKODE OS.742/2007 of ADDL.M.C.,KOZHIKODE-I .................... APPELLANTS/APPELLANTS/PLAINTIFFS ---------------------------------------------------- 1. M.SOBHANA VALSAN, AGED 55,D/O.NARAYANI, MEETHALE MAKADARI, PANTHALAYANI, P.O.KOYILANDY PANTHALAYANI AMSOM DESOM, KOYILANDY TLAUK. 2. P.K.SATHEESH BABU, AGED 52, S/O. NARAYANI, KUMMATH HOUSE, MULLATH PARAMBA, NEAR SAI BABA MANDIRAM, P.O.CHALAPPURAM, NAGARAM AMSOM DESOM KOZHIKODE. 3. E.T.SHAILAJA BABURAJ, AGED 50, D/O.NARAYANI, KUZHIPULLY HOUSE, KOLATHARA P.O., CHERUVANNUR AMSOM DESOM, KOZHIKODE. 4. P.K.VINOD KUMAR, AGED 47,S/O.NARAYANI, KUMMATH HOUSE, MULLATH PARAMBA, NEAR SAI BABA MANDIRAM, P.O.CHALAPPURAM, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 5. C. CHARMILA SATHEESHAN, AGED 42, D/O. NARAYANI, CHERIYALA MEETHAL, PANTHALAYANI AMSOM DESOM, NELLIKODE KUNNU, KOYILANDY. BY ADV. SRI.SRINATH GIRISH SRI.E.NARAYANAN RESPONDENT(S): DEFENDANTS ------------------------- 1. N.P.NALINI, AGED 65,S/O.AMMINI, KUMMATH HOUSE, MULLATH PARAMBA, NEAR SAI BABA MANDIRAM, P.O.CHALAPPURAM, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 2. PULAKKAD VIDYADHARAN, AGED 60, S/O. AMMINI, "KADEESA MANZIL" MARAD BEACH, VAYANASALA, PULIYULLAKANDY PARAMBA, P.O.ARAKKINAR, NADUVATTAM AMSOM DESOM, KOZHIKODE TALUK. 3. NELLICODE RAGHINI AGED 59, D/O. AMMINI, NELIKKOTT HOUSE, KIZHAKUMPADAM, CHEERP PALAM, B.C.ROAD, P.O.BEYPORE, BEYPORE AMSOM DESOM, KOZHIKODE. 4. K.MALINI SASIDHARAN,AGED 55, D/O.AMMINI, C/O.CHERODATH HOUSE, FRANCIS RAOD, NAGARAM AMSOM, DESOM,KOZHIKODE. 5. K.C.MEDINI BALAN, AGED 53,'VIPANCHIKA NIVAS' KAVAT CHAKKINGAL, EDASSERY PURAYI, PERINGAVU, VAZHAYUR AMSOM, DESOM, RAMANATTUKARA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. --------------------------------- R.S.A.No.622 of 2010 --------------------------------- Dated this the 22nd day of June, 2010 JUDGMENT The plaintiffs in O.S.742/2007 who failed in their attempt to have partition of item 2 of B schedule are the appellants. 2. The Karaima holding where the house situated with the B schedule property was purchased by Narayani. On her death the property devolved on her children by name Appu, Ammini, Lakshmi, Narayani and Krishnan. Appu and Krishnan are died without any legal heirs. Therefore the entire right devolved on Ammini and Narayani. Consequent of the death of Narayani the right devolved upon her children the defendants. Item No.2 of the plaint B schedule was appurtenant land of Karaima though acquired by them and therefore it is also available for partition. 3. The suit was resisted by the defendants pointing out that item No.2 of the plaint B schedule exclusively belonged to the defendants as per Ext.B1 document. Therefore, item No.2 of B schedule to the plaint is not available for partition. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 and A2 for the plaintiff. The defendant had D.W.1 examined and Ext.B1 to B4 were marked. The trial court found that plaintiff had R.S.A.No.622 of 2010 2 preferred O.A.3/1994 before the land tribunal concerned in respect of the item No.2 of B schedule property which was the subject matter of the partition of the suit. The trial court also found that the said O.A. has been dismissed. But copy of the order had not been produced and so item No.2 of B schedule property cannot be treated as Karaima holding. The partition was allowed in respect of item No.1. 5. Aggrieved by the rejection of the claim in relation to item No.2 of the plaint B schedule property, the plaintiff filed A.S.144/2008 before the Sub Court, Kozhikode. The appellate court on an evaluation of evidence agreed with the findings of the trial court and dismissed the appeal. The plaintiffs in the suit faced with concurrent findings against them have filed this Second Appeal. 6. The learned counsel appearing for the appellant very vehementaly contended that the courts below were not justified in rejecting the plea for partition regarding item No.2 of plaint B schedule property. The learned counsel placed considerable reliance on Ext.B1 and the Revenue Inspector, Land Tribunal concerned in the O.A. proceedings are initiated and pointed out that the plaint B schedule of item No. 2 lie contiguously and in appurtenant to item No.1 and therefore it was also partible. Considerable reliance was placed on R.S.A.No.622 of 2010 3 Section 2 (23A) of the Land Reforms Act in support of his contention. 7. Though the arguments may look attractive, on a close scrutiny it can be seen to be without much substance. Revenue Inspector's report which is a part of proceedings before the Land Tribunal may not by itself sufficient. True it is in favour of appellant. The defendants have produced several documents which show that they are exclusively entitled to the property. There is nothing to show that the plaint B schedule item No.2 is appurtenant to the Karaima holding. It is significant to notice that copy of order in O.A.3/1994 before the Land Tribunal was not produced. O.A. has been dismissed. It is stated that dismissal was on the ground of non joinder of necessary parties on the party array. But they ought to have produced the order. Without producing the same they cannot simply contend that O.A.was dismissed for non joinder of necessary parties. There was no merit regarding their plea. 8. It is also seen the defendants have obtained building permit for construction in the property purchased under Ext.B1document 14.5.1982. The learned counsel for the appellant placed reliance on the definition of “Karaima” in Kerala Land Reforms Act. Section 2 (23A) reads as follows: R.S.A.No.622 of 2010 4 2(23A) “Karaima” means a transfer of lands situate in the Kozhikode district or in the Malappuram district, in consideration of ground rent, principally for the purpose of erecting a homestead, and described in the document, if any, evidencing the transfer, as Karaima or Panayapattom, Panayachit, or by whatever name called which possesses the characteristics of Karaima: Explanation- For the purpose of this clause, so much of the land appurtenant to the land under the Karaima belonging to the landlord or any person claiming through him and in the possession and beneficial enjoyment of the Karaima holder or his legal representative or any other person claiming through him as on the 1st day of January, 1970 shall, subject to a maximum of three cents in Municipal Corporation area, five cents in Municipal Council area, and ten cents in Panchayat area, inclusive of the land under Karaima be deemed to be karaima: Provided that where the extent of the land appurtenant in the possession and beneficial enjoyment is in excess of the extent specified above as on the 1st day of January, 1970, such land shall also be deemed to be Karaima.” 9. A reading of the provision shows that the land is appurtenant to Karaima holding also fall within the ambit of Kanam. It is true that defendants purchased the land from the same landlord. If as a matter of fact the land is in appurtenant to Karaima holding there would have been some justification in the submission. Both the courts below found the property is not lying appurtenant to the plaint B schedule of item No.1 . R.S.A.No.622 of 2010 5 10. The fact that item No.2 of plaint B schedule property lies contiguously does not lead to the conclusion that it is an appurtenant land. Both the courts have found that the first defendant herein was treating the item No.2 of plaint B schedule property as his separate property as could be seen from the various documents produced in the trial court. It is also significant to notice that two plots have separate means of access. The disputed item lies on the western side of the Karaima holding. The first respondent also produced tax receipt. 11. It is evident that the item No.2 of plaint B schedule property separately and independently dealt with. There is nothing to show that item No.2 of plaint B schedule property is appurtenant to Karaima holding in respect of which the partition has been granted by the trial court. If as a matter of fact item No.2 of plaint B schedule property is in fact appurtenant land,plaintiff would have claimed the same long before that was acquired by the first defendant. Court cannot omit to note that steps were taken by the defendant, first respondent herein to have a building constructed as item No.2 of Plaint B schedule as early as in 1990. At that point of time there was no objection from the side of appellants. All these will clearly shows that inclusion of item No.2 to B schedule is one with ulterior motive. R.S.A.No.622 of 2010 6 12. Both the courts below have concurrently found that it could not held that item No.2 of plaint B schedule is appurtenant to item No.1. Being essentially a question of fact no interference is called for, in this Second Appeal. No substantial questions of law arise for consideration. Appeal is accordingly dismissed in liminie. P.BHAVADASAN, JUDGE cms