IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 AS.No. 374 of 1996() -------------------- OS.102/1991 of SUB COURT, QUILANDY .................... APPELLANTS/PLAINTIFFS/DEFENDANTS: -------------- 1. MARAMVEETTIL KUTTULI, KARUVANCHERY AMSOM, MEENATHKARA DESOM, VALANCHERRY, VADAKARA TALUK. (* DIED. LRs IMPLEADED) 2. KANJANAYIL PANJALI, PALAYAD VILLAGE, VADAKARA TALUK. 3. MOTTEMMAL KANNAN, PATHIYARAKKARA DESOM, PALAYAD VILLAGE, VADAKARA TALUK. 4. VELLIYOTTE THAZHAKUNIYIL CHIRUTHA, AYANIKAD AMSOM DESOM, KOYILANDY. 5. OLACHERIMEETHAL NARAYANAN, MANIYOOR AMSOM DESOM, KOYILANDY. 6. VALANKERI KANNAN, MEENATHUKARA DESOM, PALAYAD VILLAGE, VADAKARA TALUK. 7. VALANKERI KUNHIRAMAN, RESIDING DO. 8. VALANKERI GOPALAN, RESIDING DO. 9. KOLAKANDAM NILAM KUNNI KUNHIPPENNU, AYANIKKAL AMSOM, KOYILANDY TALUK. 10. -DO- KUNHIKANNAN, RESIDING DO. 11. -DO- NARAYANAN, RESIDING DO. 12. KURUNGOTTE CHANDRAN, RESIDING DO. 13. -DO- CHIRUTHAKUTTY, RESIDING DO. 14. -DO- SAROJINI, RESIDING DO. (...2/-) A.S.374/96 (2) 15. OLATHERI JANU (VANNATHAVEETTIL JANU) MANIYOOR AMSOM, MODAPPILAYI DESOM. 16. -DO- KALLIYANI, RESIDING DO. 17. -DO- MATHU, RESIDING DO. 18. -DO- DEVI, IRIKKOOR AMSOM DESOM. *ADDL. APPELLANTS 19 AND 20: 19. VALANCHERRY KANNAN, AGED 65 YEARS, PALATHUNADA P.O., IRINGAL, VADAKARA, KOZHIKODE DISTRICT. 20. M. KUNHIRAMAN, EX-SERVICEMAN, KAMAL HOUSE, PUTHIYARAKARA P.O., PUTHUPPANAM, VADAKARA, KOZHIKODE. (*LEGAL HEIRS OF THE DECEASED APPELLANT nO.1 ARE IMPLEADED AS ADDL. APPELLANTS 19 AND 20 VIDE ORDER DT. 9.11.05 ON I.A.3450/05) BY ADV. MR. T.A.RAMADASAN MR. A.K.ALEX RESPONDENTS/DEFENDANTS: --------------- 1. MARAMVEETTIL POCKI ALIAS MATHU, MEENATHUKARA DESOM, PALAYAD VILLAGE, VADAKARA TALUK 2. MARAMVEETTIL GOPALAN, RESIDING DO. 3. MARAMVEETTIL KANARAN, RESIDING DO. 4. -DO- NARAYANAN, RESIDING DO. 5. -DO- SARADA, RESIDING DO. 6. -DO- CHANDRI, RESIDING DO. 7. -DO- NANU, RESIDING DO. ADV. MR. N.L.KRISHNAMOORTHY FOR R1-7 MR. K.LAKSHMINARAYANAN FOR R1-7 MS.SATHYASHREE PRIYA FOR R1-7 MS. K.A.MAYA FOR R1-7 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.374/96 ORDER ON C.M.P.3825 OF 1997 IN A.S. 374 OF 1996 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 23.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- A.S.No. 374 OF 1996 -------------------------------------------------- Dated this the 23rd day of March, 2009 J U D G M E N T Plaintiffs and defendants 2 to 5 are the appellants. Respondents are defendants 6 and 20 to 25. First appellant instituted the suit seeking a decree for partition of plaint A and B schedule properties. Plaint A schedule property admittedly originally belonged to Madathil Krishna Patter. It was outstanding in the possession of Chirutha under Ext.A1 registered lease deed dated 23.11.1926. First appellant and deceased first defendant and respondents 2 and 3, deceased Cheeru and deceased Manikkam, are the children of Chirutha. Fourth appellant/fourth defendant is the daughter of Cheeru, the dauther of deceased Chirutha. Fifth respondent is the son of deceased Manikkam, the other daughter of Chirutha. On the death of first defendant, defendants 22 to 24, respondents 2 to 6 were impleaded as his legal heirs. Appellants 6 to 18 were the additional defendants impleaded on the contention raised by the other respondents. According to the appellants on the death of A.S.374/96 2 Chirutha plaint A schedule property devolved on her legal heirs and they are in joint possession of the property and it was being managed by deceased first defendant, and he acquired plaint B schedule property out of the income from item No.1 of plaint A schedule property and this plaint A and B schedule properties are available for partition and are to be divided into six equal shares and one such share is to be allotted to the first appellant. First defendant filed a written statement contending that though plaint A schedule property was outstanding in the possession of Chirutha on lease, in execution of the decree in O.S.232 of 1936, it was sold in E.P.673 of 1943 and was purchased by Pottankandy Kannan, who obtained the sale certificate and also possession from Chirutha and on the death of Chirutha, she had no subsisting right in the plaint A schedule property and therefore her legal heirs are not entitled to claim any right in the property. It was contended that Pottankandy Kannan, the auction purchaser, assigned the property to the first defendant as per Ext.B2 assignment deed dated 3.5.1946 and while first defendant has been in possession of the property under Ext.B3 registered kanam kuzhikanam deed dated 25.1.1951, the lease A.S.374/96 3 was renewed directly from the landlord and 37 cents out of plaint A schedule property was transferred in favour of third appellant under Ext.B4 registered Marupattam executed on 7.7.1950 and later he assigned that property in favour of Choyi under Ext.B7 and the said Choyi in turn assigned the property in favour of the first respondent/sixth defendant under Ext.B9 assignment deed and thus first defendant and sixth respondent are in exclusive possession of property and therefore the other children of Chirutha or the legal heirs are not entitled to claim any share. 2. Learned Sub Judge on the evidence of PW1, DW1 and Exts.A1 to A5 and B1 to B27 dismissed the suit holding that though under Ext.A1 Chirutha the mother obtained the property in 1926 on kuzhikkanam lease, the rights of Chirutha was sold in execution of the decree in O.S.232 of 1936 and under Ext.B1, auction purchaser Pottankandy Kannan obtained the property and it was assigned by the auction purchaser in favour of first defendant under Ext.B2 and later a part of the property was transferred under Ext.B3 and by change of hands it was obtained by first respondent under Ext.B9 and therefore the plaint A A.S.374/96 4 schedule property is not available for partition. As the claim was that plaint B schedule property was acquired with the funds obtained from plaint A schedule property, it was held that plaint B schedule property is also not available for partition. Though there was no evidence to prove that the auction purchaser Kannan had taken delivery of the property, learned Sub Judge found that Exts.A2 to A4 and B25 to 27, the copy applications filed by first appellant as well as first defendant establish that the records of execution petition are not available to find out whether possession was taken by the auction purchaser and available evidence establish that possession was taken by the auction purchaser and later it was transferred to the first defendant under Ext.B2 and therefore plaint A schedule property is not available for partition. 3. The plaintiff along with defendants 2 to 5 and 7 to 19 filed the appeal challenging the refusal to pass a preliminary decree contending that there is no evidence to prove that auction purchaser Kannan had taken delivery of the property covered under Ext.A1 lease and the property continued to be in the possession of legal heirs of Chirutha and even if first defendant A.S.374/96 5 and his wife, the first respondent are in physical possession, it should have been found that they are in possession of the property as co-owners as on the death of Chirutha her right in the plaint A schedule property devolved on her children first appellant and defendants 1 to 3 and 4 and 5 the legal heirs of the other deceased children of Chirutha and plaint B schedule property was acquired with the funds obtained from plaint A schedule property and therefore a preliminary decree should have been passed for division of plaint A and B schedule properties. 4. Learned counsel appearing for appellants and the respondents were heard. 5. The argument of the learned counsel appearing for the appellants is that even though Ext.B1 shows that plaint A schedule property was sold in E.P.673 of 1947, in execution of decree in O.S.232 of 1936 against Chirutha the mother, in the absence of evidence to prove that delivery of the property covered under Ext.B1 was taken, learned Sub Judge should have found that in spite of court auction sale Chirutha continued her possession of the property as a lessee and on her death the A.S.374/96 6 property devolved on all the legal heirs of Cheeru, first appellant and the deceased first defendant and appellants 2 and 3 and appellants 4 and 5 children of Cheeru and Manikam, the deceased children of Chirutha and hence they are entitled to equal share and a preliminary decree is to be passed. 6. Learned counsel appearing for respondents argued that the records establishing delivery of possession obtained by the auction purchaser under Ext.B1 sale certificate could not be adduced as records are not available in the court and the available evidence are sufficient to prove that Chirutha was not in possession of property subsequent to the court auction sale and the auction purchaser has been in possession of property and after Ext.B2 sale by the auction purchaser, first defendant renewed the lease by executing Ext.B3 in his capacity not as the son of Chirutha but as an assignee of the auction purchaser and therefore the trial court rightly found that plaint A schedule property is not available for partition and as partition of plaint B schedule property was claimed contending that it was acquired with the funds of plaint A schedule property, when plaint A schedule property is found to be not available for partition, plaint A.S.374/96 7 B schedule property is also not available for partition. 7. Plaint A schedule property admittedly belonged to jenmy Madathil Krishna Pattar. It was outstanding in possession of Chirutha under Ext.A1 lease of 25.11.1926. Though the decree in O.S.232 of 1936 is not produced, Ext.B1 sale certificate establish that in execution of the money decree passed against Chirutha in O.S.232 of 1936, plaint A schedule property was sold in court auction sale and purchased by Pottankandy Kannan who obtained Ext.B1 sale certificate. Under Rule 94 of Order XXI of Code of Civil Procedure the sale certificate is a document of title. True, there is no documentary evidence to prove that auction purchaser Pottankandi Kannan took delivery of the property as provided under Rule 95 of Order XXI of Code of Civil Procedure. But Exts.A2 to 4 and B25 to 27, the respective copy applications filed by first appellant and first defendant, establish that the execution records are not available to be produced before the court to establish whether delivery was taken by the auction purchaser. But there are other material evidence to establish that the auction purchaser had taken delivery of the property. After Ext.B1 court auction sale, A.S.374/96 8 first defendant purchased plaint A schedule property from the auction purchaser Pottankandi Kannan under Ext.B2 on 3.5.1946. It is to be borne in mind that when Ext.A1 kuzhikanam lease was obtained, there was no fixity of tenure. Ext.B2 the assignment deed executed by auction purchaser in favour of the first defendant on 3.5.1946 establish that O.S.232 of 1936 was a suit for arrears of pattam due from Chirutha under Ext.A1 lease and in execution of the decree for arrears of pattam, the leasehold property was sold and it was purchased by auction purchaser Kannan. It also shows that auction purchaser took delivery of the property and has been in possession of the property and on 3.5.1946 he assigned the property to the first defendant. Subsequent to Ext.B2, under Ext.B3, 37 cents out of the said properties was transferred by first defendant to the third defendant/third appellant, who in turn assigned the property in favour of Choyi under Ext.B7. It was later purchased by the first respondent, the widow of first defendant under Ext.B9. First defendant subsequent to Ext.B2 renewed the lease by executing Ext.B3 registered kuzhikanam deed on 25.1.1951. Ext.B3 establishes that the said kuzhikanam deed was executed A.S.374/96 9 in favour of the jenmi, who accepted it by accepting first defendant as the lessee. Ext.B2 also establish that the right asserted by first defendant is not his right as the son of Chirutha, the lessee under Ext.A1, but the right obtained under Ext.B2, which in turn was the right and possession obtained by auction purchaser Kannan under Ext.B1. Therefore even though due to the non availability of the records first defendant could not produce the records to prove that the auction purchaser had taken delivery of the property, the other records establish that as against the lessee under Ext.A1 lease, a decree for arrears of rent was obtained and leasehold property was sold and the auction purchaser obtained delivery of the property and thereafter while in possession transferred the property to the first defendant, who thereafter renewed the lease. Therefore the finding of the trial court that plaint A schedule property was not available with Chirutha on the date of her death and therefore it will not devolve on her legal heirs which could be divided as sought for in the suit is perfectly correct. When plaint A schedule property was lost from Chirutha in 1926, acquisition of plaint B schedule property subsequently cannot be with the A.S.374/96 10 funds from plaint A schedule property as canvassed by the appellants. Therefore appellants are not entitled to a decree for partition and learned Sub Judge rightly dismissed the suit. Appeal is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb