IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 SA.No. 885 of 1998(E) --------------------- AS.47/1996 of SUB COURT, KASARAGOD OS.241/1982 of PRL.MUNSIFF, KASARAGOD .................... APPELLANTS:- (APPELLANTS/DEFENDANTS 19 TO 26) 1. RAMAKUMAR, S/O. SANKARAN VAIDYAR, RESIDING AT TALANGARA VILLAGE, KASARAGOD TALUK, POST TALANGARA. 2. RUGMINI, D/O. -DO-, RESIDING AT -DO- -DO- 3. RAMANI, D/O. -DO-, RESIDING AT -DO- -DO- 4. RAMACHANDRAN, S/O. -DO-, RESIDING AT -DO- 5. SHANTHAKUMARI, D/O. -DO-, RESIDING AT -DO- *6. B. SUKUMARAN, S/O. AMBADY, RESIDING AT PARAKKAT ROAD, RAMDASNAGAR, POST KASARAGOD TALUK, KUDLU VILLAGE * (DIED) 7. B. DEVI, W/O. RAGHAVA, RESIDING AT KOTAVALAPPU, KUDLU VILLAGE, POST KUDLU, KASARAGOD TALUK. 8. K.T. SAROJINI, W/O. NARAYANA, KUDLU VILLAGE, POST KUDLU, KASARAGOD TALUK. * ADDITIONAL APPELLANTS 9 TO 13 IMPLEADED 9. K. BHANUMATHI, W/O. DECEASED B. SUKUMARAN, RESIDING AT PARAKKATTA ROAD, RAMADASNAGAR P.O., KASARAGOD TALUK, KUDLU VILLAGE. 10. K. ASHA, D/O. -DO-, R/AT -DO- -DO- 11. K. NISHA, D/O. -DO-, R/AT -DO- -DO- 12. K. USHA, D/O. -DO-, R/AT -DO- -DO- 13. K. ANEESH, S/O. -DO-, R/AT -DO- -DO- *ADDITIONAL APPELLANTS 9 TO 13 ARE IMPLEADED AS THE LR'S OF DECEASED 6TH APPELLANT AS PER ORDER DATED 23/01/2001 ON CMP 142/2001 BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE, ADV. SMT.PRABHA R.MENON, SRI.M.KRISHNAKUMAR. RESPONDENTS:- (RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 TO 4 AND 9 TO 18, 7) --------------- 1. DAKSHAYANI, W/O. ACHUTHA, RESIDING AT VARIKOTAL HOUSE, POST KADAMBAR, KADAMBUR VILLAGE, PALGHAT DISTRICT, OTTAPALAM TALUK. 2. SUSHEELA, W/O. K.V. BALAN, RESIDING AT KUNDIL VAKKEDILLA HOUSE, POST PATTITHARA, TALAKASHERI VILLAGE, OTTAPALAM TALUK, PALGHAT DT. 3. S. HARISHA KUMAR, S/O. LATE S. AYYAPPAN, RESIDING AT KOPPALA HOUSE, SHIRIYA VILLAGE, AND POST KASARAGOD TALUK. 4. S. YOGISH, S/O. -DO-, RESIDING AT -DO- -DO- 5. S. VIJAYALAKSHMI, D/O. -DO-, RESIDING AT -DO- 6. S. SUMATHI, D/O. -DO-, RESIDING AT -DO- -DO- 7. S. YASHODARA, D/O. -DO-, RESIDING AT -DO- -DO- 8. S. KALAVATHI, D/O. -DO-, RESIDING AT -DO- -DO- 9. SHYAMALA KUMARI, D/O. -DO-, RESIDING AT -DO- 10. B. NALINI, W/O. BABU, NOW RESIDING AT NULLIPADY, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK, POST KASARAGOD. 11. MANORANJAN, S/O. ANANDA, MACHANIC, RESIDING AT ERIYA VILLAGE, POST KUDLU, KASARAGOD TALUK. 12. CHITHARANJAN, S/O. ANANDA, COURT CLERK, NOW RESIDING AT ERIYA VILLAGE, POST KUDLU, KASARAGOD TALUK. **13. RADHA, W/O. B. KRISHNA, RESIDING AT KARANDHAKKAD POST, KASARAGOD, KASBA VILLAGE, KASARAGOD TALUK. *( DIED) ** IT IS RECORDED THAT R13 DIED AND R14 TO R18 ARE LEGAL HEIRS OF DECEASED R13 AS PER ORDER DATED 13/06/08 ON MEMO CF NO. 2126/08. 14. LALITHA, D/O. B. KRISHNAN, R/AT -DO- -DO- 15. CHANDRA, D/O. B. KRISHNAN, R/AT -DO- -DO- 16. PREMA, D/O. B. KRISHNA, R/AT -DO- -DO- 17. CHITRA, D/O. B. KRISHNA, R/AT -DO- -DO- 18. RAJASHEKARA, S/O. KRISHNA, R/AT -DO- -DO- ***19.MADHAVI, W/O. K.T. ANANDA, RESIDING AT KAKAVALAPPU TALANGARA VILLAGE AND POST, KASARAGOD TALUK * (DIED) *** IT IS RECORDED THAT R19 DIED AND HER LEGAL REPRESENTATIVES ARE ALREADY ON RECORD AS RESPONDENTS 20, 21 AND 22 AS PER ORDER DATED 25/02/04 ON MEMO DATED 19/02/04 BEARING CF 982/04. 20. CHANDRASHEKARA, S/O. K.T. ANANDA, TAILOR, RESIDING AT CHEMNAD VILLAGE, POST CHEMNAD, KASARAGOD TALUK. 21. K. VALSALA, D/O. K.T. ANANDA, RESIDING AT KAKKAVALAPPU, KASARAGOD TALUK, TALANGARA VILLAGE AND POST. 22. VANAJA, D/O. K.T. ANANDA, RESIDING AT ROSHIN NIVAS, ASHOKA NAGAR, POST KASARAGOD, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK. 23. C.M. ABBAS, S/O. ABDULKHADER, MERCHANT, RESIDING AT MUNDANKULAM, CHEMNAD POST, KASARAGOD TALUK. R3, R4 & R6 BY ADV. SRI.K.G.GOURI SANKAR RAI R5 BY SRI.R.PARTHASARATHY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON 20/08/2010 DELIVERED THE FOLLOWING: (M.N) P.BHAVADASAN, J. ------------------------------------- SA No.885 of 1998-E ------------------------------------- Dated 20th August 2010 Judgment The supplementary defendants 19 to 26 in OS No.241/982 before the Munsiff's Court, Kasaragod, are the appellants. 2. The suit property originally belonged to Cherunhi, who had absolute right over the property by virtue of the sale in execution proceedings in OS No.802/48. Delivery of her share of property was taken as per REP Order No.168/55. She had four daughters, namely Madhavi, Ammini, Janaki and Kalyani. Madhavi is said to have pre-deceased Cherunhi, leaving behind the plaintiffs as her legal heirs. Cherunhi died in 1959. Claiming ¼ th share, the suit for partition was instituted by the plaintiffs. SA No.885/98 2 3. During the pendency of the suit, the first defendant, who is one of the daughters of Cherunhi, died and her legal heirs were brought on the party array as supplemental defendants 9 to 14. The 6 th defendant died and her legal heirs were impleaded as supplementary defendants 15 to 23. The 5 th defendant also died, whose legal heirs were brought on the party array as supplementary defendants 24 to 26. 4. The short claim of the plaintiffs was that consequent on the death of Cherunhi, the property devolved on her legal heirs. They did not want to continue joint possession of the property. Hence the suit. The 5 th and 6 th defendants contested the suit and were supported by the first defendant. In their written statement, they pointed out that as per an oral partition, an extent of 66 cents in RS SA No.885/98 3 NBo.117/1 and 117/2 of Kasba village was set apart to Madhavi and Ammini, the daughters of Cherunhi. Another extent of 66 cents in RS No.66/7of Talangara village was allotted to defendants 5 and 6. Eversince the partition in 1960, the respective parties are in possession and enjoyment of the respective properties. However, it is stated in the written statement that even though Madhavi and Ammini were allotted 66 cents of land, they did not take possession of the said property and the said property continued to be in the possession of the seventh defendant. 5. The second defendant contended that he is entitled to his share. The 7 th defendant adopted the written statement filed by defendants 5 and 6. In the written statement filed by the 8 th defendant, he admitted the suo motu proceedings SA No.885/98 4 by the Land Tribunal and the proceedings in OS No.10/82. No written statement is seen to have been filed by defendants 9 to 14. Defendants 19 to 26 filed a written statement, adopting most of the contentions taken in the written statement filed by defendants 5 and 6. 6. The Trial Court raised necessary issues for consideration. The evidence consists of documents marked as Exts.A1 and A2 from the side of the plaintiffs and Exts.B1 to B41(c) from the side of the defendants. Neither party adduced any oral evidence. 7. Both the courts below, for want of convincing evidence, found that the oral partition claimed to have been set up by Cherunhi cannot be accepted. Accordingly, a preliminary decree for partition was passed by the Trial Court, which was SA No.885/98 5 confirmed in appeal. Hence the Second Appeal. 8. The following questions of law are seen formulated in this appeal : “A. Whether in the facts and circumstances that three out of the four co-owners assert the factum of oral partition in the year 1960 whereby two sets of properties of equal extents have been divided equally, the separate and exclusive possession of the divided properties by the allottees for more than 30 years without sharing of mesne profits, payment of land tax separately, sale of a portion of the allotted property by the allottees alone as their exclusive property, non- inclusion of the suit property in the ceiling proceedings and resumption application by the plaintiffs and the fact that the plaintiffs filed the suit only years later after they were aware of the assertion that there was an oral partition, would not be legally sufficient proof to enter a finding SA No.885/98 6 of the genuineness of the oral lease and in the circumstances, whether the court below ought to have legally entered a finding that there was such an oral partition ? B. Whether the suit for partition is not hit by the rule of partial partition when the plaintiffs who had asserted right to share in both sets of properties have not included both the properties in the partition action and whether such a suit is maintainable ? C. Would not the facts and circumstances that the sharers in possession of the suit property have asserted that they are exclusive owners and no profits have been shared with the plaintiffs since the oral partition in 1960 which the plaintiffs' own statement in the year 1978 would show that the right if any of the plaintiffs in the suit property is lost by adverse possession, limitation and ouster ?” SA No.885/98 7 9. The learned Senior Counsel for the appellants pointed out that the courts below were not justified in holding against the oral partition set up by the contesting defendants. The fact that 66 cents of property which according to the contesting defendants was allotted to Madhavi and Ammini, has not been included in the suit. In the land ceiling proceedings against the plaintiffs, the 66 cents of land were not included. Ext.B40 executed by the 5 th and 6 th defendants on 28.04.1982 shows that there was an oral partition. The evidence adduced by the contesting defendants clearly show that there was an oral partition and the contesting defendants, who obtained the property had been paying revenue for the same. It is also pointed out that the claim of the 8 th defendant who had failed in his attempt to get assignment of the property from the land Tribunal SA No.885/98 8 either as a tenant or as a kudikidappukaran, was actively supported by the first plaintiff and soon after his failure to succeed before the Land Tribunal, the suit for partition was laid. These circumstances, according to the learned counsel, have not been considered by the courts below in the proper perspective. 10. The learned counsel for the respondents, on the other hand, pointed out that both the courts below have considered the evidence in considerable detail and have come to the identical conclusions that the oral partition set up by the contesting defendants cannot be accepted. No error can be pointed out in the findings of the courts below. Being essentially a question of fact, no substantial questions of law arise for consideration in this appeal and therefore, it is only to be SA No.885/98 9 dismissed, it is contended. 11. As rightly pointed out by the learned counsel for the respondents in this appeal, all the points raised by the learned counsel for the appellants have been considered by the Trial Court as well as the first Appellate Court. They found it difficult to accept the oral partition set up by the contesting defendants. It is true that the plaintiff did not dispute that Cherunhi had left behind her properties in RS No.117/1 and 117/2. It is also true that the properties comprised in these Resurvey numbers have not been included in the present suit. Even assuming that it is true, that by itself is not sufficient to hold that there was an oral partition. Both the courts below have considered this aspect and have come to the conclusion that it is not a ground to dismiss the suit. SA No.885/98 10 12. As far as the land ceiling case is concerned, the proceedings were against the fourth plaintiff, who is the husband of the first plaintiff. He did not represent the family of plaintiffs 1 to 3. Much was said about the non-inclusion of the plaint schedule property in those proceedings. 13. It is also significant to notice that they have not included the property which is said to have been come to them under RS No.117/1 and 117/2. The so called non-inclusion, even assuming it is conspicuous, is of no significance, also due to the fact that the proceedings were against the fourth plaintiff, who was not a legal heir of Cherunhi. It related to the family of the fourth plaintiff. 14. Reliance is placed on Ext.B4 document which is said to have been executed by defendants 5 and 6 in favour of the 7th defendant on SA No.885/98 11 28.04.1982. If, as a matter of fact, the property did not exclusively belong to defendants 5 and 6, the mere fact that there was execution of a document in favour of the defendants, can be of no help to them. In the absence of cogent evidence to show that there was an oral partition, the recital in Ext.B4 can only be self serving. 15. The records indicate that the claim of the contesting defendants was that the first plaintiff was aiding the 8th defendant in his claim, is without any basis. All that was stated by the first plaintiff in his objection was that the 8th defendant and his wife were in occupation of the property. At the same time, it was pointed out by her that the first defendant is not entitled to assignment of land as claimed by him and that she has got 1/4th right over the property. It could not, therefore, be said SA No.885/98 12 that the first plaintiff was aiding the 8th defendant in the proceedings before the Land Tribunal. The payment of revenue also does not help the defendants. It is interesting to notice that in Ext.B10, the name of the pattedar is shown as Ammini and others. Survey numbers are not shown in those documents. 16. It is significant to notice that the contesting defendants have not mounted the box to substantiate their claims. They were content by producing certain documents which lacked explanation in many respects. It was the above facts, which had persuaded the courts below to hold that the oral partition has not been proved. As rightly contended by the learned counsel for the respondents, it is essentially, a finding of fact. No substantial questions of law arise for consideration SA No.885/98 13 in this appeal. The result is that this appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE sta SA No.885/98 14