IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 RSA.No. 601 of 2011() A.S.No.127 of 2004 on the file of Sub Court, Ottapalam O.S.No.25 of 1983 of Munsiff- Magistrate, Pattambi) APPELLANT/RESPONDENT/DEFENDANT -------------------------------------------------- CHANDRAMATHI, D/O.KULATHINGAL DECEASED CHENNU & W/O.KRISHNANKUTTY, RESIDING AT PERUMUDIYOOR AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE RESPONDENT(S): APPELLANTS/SUPPL. PLAINTIFFS, DEFENDANTS ------------------------------------------------------- 1. MAMMU, S/O.AYAMUNNI, THEKKATH VALAPPIL, PERUMUDIYUR AMSOM AND DESOM, OTTAPALAM TALUK. 2. ATHAN, S/O.CHOLAKAL MOIDUTTY, RESIDING IN DO. DO. 3. AMINAKUTTY, RESIDING IN DO. DO. 4. POOMAKUTTY, W/O.LATE ABDUL RAHIMAN, RESIDING IN DO. DO. 5. SALEENA, D/O. IN DO. DO. 6. SAJITHA, D/O. DO., RESIDING AT DO. DO. 7. SHERIFA, D/O. DO. RESIDING AT DO. DO. 8. SELMA, D/O. DO., RESIDING AT DO. DO. 9. RAHID, S/O. DO., RESIDING AT DO. DO. 10. SOUSHIDHA, D/O.DO. RESIDING IN DO. DO. 11. ACHUTHAN, S/O.KULATHINGAL DECEASED CHENNU, RESIDING AT PERUMUDIYOOR AMSOM DESOM, OTTAPALAM TALUK. 12. NARAYANAN, S/O.AMMUNNI, RESIDING IN DO. DO. 13. SREEDHARAN, S/O.DO. IN DO. DO. 14. KAMALA, D/O. DO., IN DO. DO. 15. KUNHILEKSHMI, D/O.DO. IN DO. DO. 16. KAMALAM, W/O.LATE GOPI, RESIDING AT KULATHUNGAL HOUSE, PERUMUDIYOOR AMSOM DESOM, OTTAPALAM TALUK. 17. RAJAN, S/O.DO. IN DO. DO. 18. SAROJINI, D/O.DO. DO. DO. 19. DEVAKI, D/O. DO., IN DO. DO. 20. MANIKANDAN, S/O.LATE MADHAVAN, KULATHINGAL HOUSE, PERUMUDIYOOR P.O., PATTAMBI, PALAKKAD. 21. KARUNA, D/O. DO. RESIDING AT DO. DO. DO. 22. LALITHA, D/O. DO. RESIDING IN DO. DO. 23. VIJAYALAKSHMI, W/O.LATE KARAPPAN, RESIDING AT GANAPATHY VALAPPIL HOUSE, PARUTHUR P.O., PALLIPPURAM, PALAKKAD DISTRICT. 24. RAVI, S/O.LATE AYYAPPAN, IN DO. DO. 25. SUMATHI, D/O.LATE KARAPPAN, IN DO. DO. DO. 26. REMA, D/O. DO., RESIDING IN DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.601 OF 2011 ............................................ DATED THIS THE 1st DAY OF JULY, 2011 JUDGMENT Sixth defendant in O.S.25 of 1983 on the file of Munsiff Magistrate Court, Pattambi is challenging the preliminary decree passed by Sub Court, Ottapalam in A.S.127 of 2004, in reversal of the decree passed by the Munsiff in O.S.25 of 1983. Plaintiff contended that the plaint schedule property was obtained by Kunhunni as per an oral lease from Punnassery Mana in 1129 agreeing to pay an annual pattom of Rs.4/- and Kunhunni has been in possession of the property effecting improvements and on the death of Kunhunni, his wife Ammukutty continued possession of the property and Ammukutty died ten years prior to the institution of the suit and on the death of Ammukutty, her right devolved on her husband's brothers, viz, plaintiff, deceased Chenu and defendants 1 to 3. Defendants 4 and 5 are the legal heirs of deceased Chenu. Thus plaintiffs sought separation of his 1/5 share contending that they are in joint possession of the property. On the death of the first defendant, defendants 7 to 12 RSA 601/2011 2 were impleaded as his legal heirs. Defendants 1, 2 and 10 filed a written statement supporting the plaintiff. Fourth defendant did not file a written statement. Defendants 5, 7 to 9, 11 and 12 were set exparte. Third defendant filed a written statement admitting the relationship but contending that the property scheduled in the written statement was obtained by the third defendant under an oral lease in 1945 from Punnassery Illam for a pattom of Rs.10/- and since then she has been in possession and enjoyment of the property effecting improvements. On 18.7.1981, under Ext.B8 assignment deed, she transferred the right in favour of 6th defendant and 6th defendant has been in possession and enjoyment of the same since then. Plaintiffs or others have no right to claim partition of the property. It was contended that there are vast extent of properties known as oottuparamba and the third defendant is not sure whether deceased Kunhunni obtained the plaint schedule property and the property obtained by third defendant is not available for partition. The 6th defendant who was impleaded later filed a written statement reiterating the contentions raised by the third RSA 601/2011 3 defendant and claiming absolute right to the property. Defendants 13 to 15 were subsequently impleaded, after remand, as the assignees of the plaintiff and defendants 1 and 2 under Ext.A4 assignment deed. 2. Learned Munsiff originally granted a decree for partition. It was challenged in A.S.133 of 1985 before Sub Court, Ottapalam. Learned Sub Judge set aside the judgment and remanded the suit for fresh disposal after framing an issue on the rival tenancy claimed, with a direction to refer the question of tenancy to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. Issue No.5 was thereafter framed and the issue was referred to Land Tribunal, Ottapalam under Section 125 (3) of Kerala Land Reforms Act. Land Tribunal rendered a finding based on Ext.B1 purchase certificate and Ext.B2 order, granted in favour of third defendant in O.A.5941 of 1976, and the tax receipts produced before the Land Tribunal upholding the tenancy claimed by the third defendant. As the finding is binding on the trial court, learned Munsiff accepted the finding and dismissed the suit. It is challenged before Sub Court, Ottapalam in A.S.127 of RSA 601/2011 4 2004 by defendants 13 to 15 the assignees of the plaintiff and defendants 1 and 2. Learned Sub Judge, on reappreciation of the evidence set aside the finding of the Land Tribunal holding that there is no evidence to prove the lease set up by the third defendant and instead evidence of PW4, who granted the lease and PW2 to whom the property was alloted on partition in the family of the landlord, with the entries in Ext.X1 and X2 establish the lease in favour of Kunhunni and passed a preliminary decree holding that plaint schedule property is available for partition and it will be divided into five equal shares and appellants are entitled to 3/5 shares and 6th defendant is entitled to 1/5 share and defendants 4 and 5, the legal heirs of Chenu are entitled to the remaining 1/5 share. It is challenged in the second appeal. 3. Learned Senior counsel appearing for appellant was heard. The argument of the learned senior counsel is that in 1976 itself, under Ext.B2 order, the Land Tribunal assigned the jenmom right in respect of the property claimed by the 3rd defendant in her written statement and Ext.B1 purchase certificate was also granted and under Section 72 of the Kerala RSA 601/2011 5 Land Reforms Act, Ext.B1 is conclusive proof of her title and first appellate court was not justified in holding that third defendant was not a tenant and instead Kunhunni was the tenant of the plaint schedule property. Learned senior counsel pointed out that the plaint schedule property as described in the plaint is only having an extent of 30 cents and it will not up to the north of the Kulam as located by the Commissioner in Ext.C2 plan and on the evidence, first appellate court was not justified in reversing the findings of the trial court. 4. On hearing the learned counsel and going through the judgment of the first appellate court, I do not find any substantial question of law involved in the appeal. The fact that Kunhunni had obtained a property on lease from Punnassery Illam, as claimed by the plaintiff, was proved by the evidence of PW4, who granted the lease and evidence of PW2 to whom the property was alloted under Ext.X2 partition deed. Added to this, Ext.X1 “Thirattu” got produced by the plaintiff from the landlord illom establish that there is an entry to the effect that the property has been leased to Kunhunni. It is under Ext.X2 partition deed, the RSA 601/2011 6 said property was alloted to the share of PW2. PW2 had given evidence that the said property has been in the possession of Kunhunni. Though PW2 has no personal knowledge with regard to the entrustment, PW4 his father was examined to prove that he granted the oral lease in favour of Kunhunni and plaint schedule property is the said property. As rightly found by first appellate court, evidence of Pws 2 and 4 are corroborated by the entries in Ext.X1 and X2, which cannot be disputed. As against this, there is no evidence to prove the oral lease set up by the third defendant. Though 3rd defendant was examined as DW1, her evidence will not establish the oral lease. If there was an oral lease as claimed by the third defendant, as rightly found by the first appellate court she would have paid pattom and if so there should be an entry in Ext.X1, similar to the entry regarding the lease granted to Kunhunni. She should have paid pattom and in that case should have the receipts evidencing payment of pattom with her. The only documentary evidence produced by the 6th defendant in support of the possession of third defendant as a tenant is the basic tax receipt obtained subsequent to 1976. The O.A was filed RSA 601/2011 7 in 1976. In such circumstances, the production of basis tax receipts will not establish the oral lease. On a proper appreciation of evidence, first appellate court rightly found that there was no oral lease in favour of the third defendant and the plaint schedule property was obtained on lease earlier by Kunhunni. 5. Though under Section 72K of the Kerala Land Reforms Act, purchase certificate is conclusive evidence of title, when the legal heirs of Kunhunni are not parties to Ext.B2 order of the Land Tribunal, pursuant to which Ext.B1 purchase certificate was issued. As no notice was issued to the legal heirs of Kunhunni, in the O.A proceedings, Ext.B1 purchase certificate is not binding on the legal heirs of Kunhunni. If so, based on Ext.B1, it cannot be found that third defendant was the tenant and not Kunhunni. It is more so, when the evidence establish that there was no oral lease in favour of third defendant and Kunhunni was the tenant and on his death, his rights devolved on his widow Ammukutty and on the death of Ammukutty, the rights devolved on the brother and sisters of Kunhunni viz plaintiff, defendants 1 to 3 and deceased Chenu. In such circumstances, the preliminary RSA 601/2011 8 decree granted by first appellate court is perfectly correct. As the actual extent of the property is to be determined in the final decree proceedings, it is not necessary to consider the actual extent of the property to be divided and that question is to be settled in the final decree proceedings. As no substantial question of law is involved in the appeal, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk