IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 AS.No. 251 of 1998 (C) APPELLANT/4TH DEFENDANT: PONNAN, UPPAMOOCHIKKAL HOUSE, OTTAPPALAM AMSOM, ARIYOOR THEKKUMURI DESOM, OTTAPPALAM TALUK BY ADV. SRI.N.GOVINDAN NAIR RESPONDENTS - PLAINTIFF 1 AND 2 AND DEFENDANTS 1 TO 3 AND 5 TO 9: 1. NARAYANAN BAKERY, BASRAL, MANDYA DISTRICT KARNATAKA FROM UPPAMOOCHIKKAL OTTAPPALAM AMSOM, AYIROOR THEKKUMURI DESOM OTTAPPALAM TALUK 2. SIVARAMAN NO.24, POONAMALLI STREET, EKKATTUTHANGAL GUINDY, CHENNAI - 600 097 FROM - DO - - DO - 3. KALLIANI, PADINJARETHIL HOUSE S.R.NAGOOR , MEETNA OTTAPALAM FROM -DO - - DO- 4. BHARGAVI PALENCHARI HOUSE, KAILIAD P.O. VIA SHORANUR FROM -DO- -DO- 5. PARAMESWARAN UPPAMOOCHIKKAL HOUSE NEAR TALUK OFFICE, OTTAPPALAM-679 101 6. PADMAVATHY PATTISSERY HOUSE, KALLUVAZHI P..O. PALAKKAD DISTRICT FROM UPPAMOOCHIKKAL HOUSE OTTAPPALAM AMSOM, AYIROOR THEKKUMURI DESOM OTTAPPALAM TALUK 7. RAMAKRISHANAN NEAR K.E.FACTORY AND HOTEL BLUE STAR NO.48, KALVAY BANGLA, PONDICHERRY-605009 FROM -DO - -DO- 8. SUBRAMANIAN, -DO- , --DO- 9. SUKUMARAN, METTU STREET, KAUNDAN PALAYAM PONDICHERRY-605 009. 10. RAJAN, - DO - - DO - ADV. SMT.PREETHY KARUNAKARAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON 06/08/2009 DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.251 OF 1998 - C - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2009 JUDGMENT Basheer, J: The preliminary decree and judgment passed by the court below in a suit for partition is under challenge in this appeal by defendant No.4, one of the two contesting defendants. Though defendant No.3 also had, along with the present appellant, contented before the court below that the plaint schedule properties were not available for partition, the court below had repelled the above contentions and decreed the suit as prayed for. However, defendant No.3 has not chosen to challenge the above decree and judgment. 2. The plaintiffs contended that the plaint B schedule properties belonged to their predecessor, late Narayanan, father of the plaintiffs and defendants. Going by the averments in the plaint, item Nos. 1 to 3 were set apart to the share of Narayanan in his family partition of the year 1911. Subsequently, in the year 1942 late Narayanan had gifted the above three items to plaintiffs and defendants, along with their mother Kunhamma. Item No.4, according to the plaintiffs, was in the possession of Narayanan on the strength of a 'mortgage kaicheettu' of the year 1930, till his death. In the year 1964, the said property was A.S.No.251 OF 1998 - C :: 2 :: got assigned in favour of defendants 3 and 4 from the mortgagor for and on behalf of other legal heirs also. Thus, it was contended by the plaintiffs that the plaint B schedule properties were being enjoyed in co-ownership by the legal heirs of deceased Narayanan. Plaintiffs sought partition of the above properties claiming separate allotment of their 18/40 shares. 3. As mentioned earlier, only defendants 3 and 4 contested the suit. It was primarily contended by these defendants that item no.4 was not available for partition, since the said item was purchased by them in their name with their funds after the death of their father. Thus they claimed exclusive right over the said item of property. As regards item nos.1 to 3 also it was vaguely contended by them that they have exclusive right over them on the strength of a will executed by their mother. 4. The court below framed relevant issues, one of which was whether defendant No.3 was entitled to reservation with regard to the house situated in item No.1 of plaint B schedule. The other issue was whether the plaintiffs had any right in item no.4 of the plaint B schedule properties as claimed by them. 5. Neither the plaintiffs nor the contesting defendants adduced A.S.No.251 OF 1998 - C :: 3 :: any oral evidence. However, Exts.A1 to A4 were marked on the side of the plaintiffs. The contesting defendants did not adduce any oral or documentary evidence. 6. Sri.N.Govindan Nair, learned counsel for the appellant fairly submitted before us that the appellant/defendant had failed to adduce any evidence in support of his claim over item Nos.1 to 3, though such a contention was raised in the written statement. Learned counsel therefore submitted that the finding entered by the court below in this regard is not being challenged in this appeal. 7. However, Sri.Govindan Nair submitted that the finding entered by the court below as regards item no.4 is erroneous and unsustainable. Learned counsel would submit that Ext.A2 assignment deed will unambiguously show that item No.4 was purchased by defendant No.3 and 4 in their name to the exclusion of the other children of deceased Narayanan. He further points out that plaintiffs had not adduced any evidence in support of their claim over item No.4. 8. We are afraid the above contention is wholly misconceived and untenable. It has not been disputed by the appellant that deceased Narayanan, the father of the plaintiffs and defendants, had been in A.S.No.251 OF 1998 - C :: 4 :: possession of item No.4 as a tenant/mortgage till his death. This is revealed from Ext.A2 document itself. The specific case of the plaintiffs was that after the death of Narayanan the said item was also being enjoyed by his legal representatives along with other co ownership properties. Later the said property was purchased in the name of defendants 3 and 4 for and on behalf of other legal representatives as agreed by all. 9. In this context, it may be noticed that the appellant had not adduced any evidence to show that he was in exclusive possession of the said item of property along with defendant No.3, though both of them had claimed exclusive right over this particular item of property. The entire burden was on them to show that they had been enjoying the property to the exclusion of others. Of course Ext.A2, on the face of it, may show that the said item of property stood in the name of the appellant and defendant No.3. But since admittedly deceased Narayanan was in possession and enjoyment of the said item of property till his death, appellant and defendant No.3 had to first of all establish that Narayanan had surrendered his mortgage/tenancy right over the said item. Though such a contention was raised by them, they had totally failed to establish the same to the landlord. A.S.No.251 OF 1998 - C :: 5 :: 10. It must also be remembered that Ext.A2 is a document of 1964 which came in to existence after the commencement of Kerala Land Reforms Act (Act I of 1964). Therefore, after the commencement of the said Act, Narayanan had obviously become a tenant under the Act and he would have been entitled to get the benefits available under that legislation. In that view of the matter also, especially in the absence of any evidence to show that Narayanan had in fact surrendered or lost his right over the property in any manner known to law, appellant could not have succeeded. The court below has ofcourse stated some other reasons to deny the exclusive claim made by the appellant. But, in our view, since the appellant had failed to establish that after the death of Narayanan his tenancy or possessory right over the property had been lost in some manner known to law, it has to be presumed that deceased Narayanan was in exclusive possession and enjoyment of the property till his death and that the property had devolved on his legal heirs after his death. 11. There is yet another aspect of the matter. Ext.A2 will reveal that an application for 'janmam right' in respect of the said property had been filed before the Land Tribunal concerned. The appellant had not produced any purchase certificate or order of the proceedings of A.S.No.251 OF 1998 - C :: 6 :: the Land Tribunal which would have thrown considerable light into the nature of right of the parties over the said item. 12. Having perused the entire materials available on record, we have no hesitation to hold that item No.4 is also available for partition and the court below was eminently justified in holding so. We do not find any material illegality in the judgment and decree passed by the court below. Appeal fails and it is accordingly dismissed. Parties shall bear their respective costs. (A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE) jes A.S.No.251 OF 1998 - C :: 7 :: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.251 OF 1998 - C - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 6th August, 2009