IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 834 of 1990()
1. KOOLIVATHAKKAL KARIKKAN MANNI
... Petitioner
Vs
1. KARIKKAN KANNAN
... Respondent
For Petitioner :SMT.A.C.VIDYA
For Respondent :SRI.P.M.PAREETH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :09/12/2010
O R D E R
HARUN-UL-RASHID,J.
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S.A. NO.834 OF 1990 &
LA.A.NO.334 OF 1990
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DATED THIS THE 9TH DAY OF DECEMBER, 2010
JUDGMENT
The substantial questions of law formulated in the
appeal are as follows:
“A) In as much as the children of the
deceased Paru and Koran are admittedly not parties
to the suit O.S.No.142/1963 and E.P.No.194/66
would Ext.B2 sale certificate dated 31/1/1967
relating to intermediary right in any way affect the
rights of plaintiffs and lst defendant over the
property under Ext.A2 marupat?
B) Would Ext.B2 sale certificate in
E.P.No.194/1966 in O.S.No.142/1963 give
possession of the property to the auction purchaser
without delivery pursuant to the sale certificate?
C) What is the right obtained by the
auction purchaser under Ext.B2 sale certificate?
D) In as much as the assignor says that
the property was already in the possession of the 2nd
defendant as a lessee under him can Ext.B1
assignment of 1973 convey any right to 2nd
defendant since under the Kerala Land Reforms
Act the intermediary rights vested in the-2-
S.A.No.834/90 & LAA.N.334/90Government as on 1/1/1970?
E) Is the oral lease mentioned in Ext.B1
not hit by Section 74 of the Kerala Land Reforms
Act in as much as the assignor of Ext.B1 admittedly
obtained Ext.B2 sale certificate only in 1967?
F) In the facts and circumstances of the
case, are the courts below legally right in holding
that the plaintiff and lst defendant are not joint
owners and consequently dismissing the suit?”
2. Plaintiffs in O.S.No.40/1982 on the file of the
Munsiff’s Court, Taliparamba are the appellants. The appeal is
directed against the judgment and decree in A.S.No.3/1988 on the
file of the Sub Court, Payyannur. The suit was filed for partition.
Plaintiffs, four in number, prayed that the plaint schedule property
be divided into 5 equal shares by metes and bounds and 4 such
shares be allotted to them with future mesne profits. The suit was
dismissed by the trial court holding that the plaint schedule
property is not partible. The Appellate Court confirmed the decree
and judgment passed by the trial court. The plaintiffs preferred
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S.A.No.834/90 & LAA.N.334/90
S.A.No.834/1990 challenging the decree and judgment in
A.S.No.3/1988. This Court by judgment and decree dated 23rd
November, 2000 allowed the appeal and set aside the decree and
judgment passed in A.S.No.3/1988. The legal heirs of the lst
defendant preferred a Special Leave Petition. The Apex Court
granted leave and registered the appeal as Civil Appeal
No.613/2003. By order dated 10th December, 2009 the Apex Court
set aside the judgment of this Court and remanded the case to this
Court for fresh orders. The Apex Court held that the procedure
adopted by the High Court in not formulating the substantial
questions of law is not in accordance with Section 100 C.PC. and
therefore without going into the merits of the claim made by both
sides the Apex Court set aside the impugned judgment of this Court
and remitted the case for fresh disposal. Accordingly, the second
appeal was heard again for disposal afresh.
3. The plaintiffs’ case is as follows: The plaint schedule
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S.A.No.834/90 & LAA.N.334/90
property is an extent of 94 cents in Sy.No.26/1 and 26/2 of
Morazha amsom Kanool desom. The plaint schedule property was
originally possessed and enjoyed by one Kurankunnil Kannan on
kuzhikanam right under the jenmi Kadamberi Devaswom and on
the death of Kannan, his only son Neelankol Koran enjoyed the
property. On the death of Koran, his rights are devolved on his
wife Paru and their children. The plaintiffs and the lst defendant
are the children of Paru and Koran. After the death of Paru, her
rights in the plaint schedule property also devolved on her children.
The plaintiffs and the lst defendant are in joint possession of the
property and therefore the plaintiffs are entitled to 4/5 share and
the lst defendant is entitled to 1/5 share.
4. The 2nd defendant is the wife of the lst defendant. A
joint written statement was filed by the defendants. The gist of the
contentions are as follows: It is admitted that the plaintiffs and the
lst defendant are the children of Koran and Paru. It is averred that
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S.A.No.834/90 & LAA.N.334/90
Kannan, who is the grandfather of plaintiffs and the lst defendant,
assigned his right in favour of one Ali and that Koran, the father of
plaintiffs and lst defendant got the property under the said Ali on
kuzhikanam pattom kudiyirippu right. It is further stated that on the
death of Koran, his rights devolved on Paru and lst defendant and
thus they were in possession of the property. While so, Paru,
plaintiffs and the lst defendant surrendered their right over the
property to the intermediary by a registered release deed.
5. The defendant denied the plaint averment that the
plaint schedule property was in the possession of Kannan as a
tenant under Kademberi Devaswom. It is also averred that
Kademberi Devaswom filed O.S.No.142/1983 against the
intermediary and others for arrears of rent and purappad. In
execution of the decree the plaint schedule’ property was put in
court auction and one Raghavan bid the property and obtained sale
certificate. It is stated that the auction purchaser got possession of
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S.A.No.834/90 & LAA.N.334/90
the property after delivery and the 2nd defendant purchased the
property from Raghavan as per registered assignment deed dated
26/7/1973 and thus the defendants are in possession and enjoyment
of the plaint schedule property as of right. The extent of property
assigned is 61 cents in R.S.No.26/1 and 26/2. The 2nd defendant
purchased the jenm right from the Land Tribunal as per the order in
OA.No.26126/1975. It is also averred that the remaining extent
was also in the possession of the 2nd defendant as per an oral lease
obtained from the intermediary. The trial court on the basis of
assignment deed dated 26/7/1973 held that the property belongs to
the 2nd defendant and the same is not partible and hence the suit was
dismissed by judgment and decree dated 20/8/1987. The trial court
noted that the the defendants admitted that Neelankol Koran was in
possession of the property and then the burden is on them to prove
their case. The trial court considered the question as to what was
the right that Koran had in the plaint property. The trial court also
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S.A.No.834/90 & LAA.N.334/90
considered Exts.B8 and A2, which are documents executed at the
earlier point of time. Ext.B8 (X1) is a release deed executed on
2/4/1940 by Paru on her behalf and also on behalf of her minor
children in favour of intermediary Sri Avvokker Mappila. As per
Ext.B8, verumpattom right over the property extending to 1 acre
and 33 cents was surrendered and on the very same day Paru
executed Ext.A2 marupat in favour of Avvokkar Mappila and thus
got back the released right. The trial court held that though Ext.A2
is termed as marupat, the recitals of the same would show that it is
only a verumpattom. It was held that as per Ext.A2 Paru got only
melpattom right over the house, well, one coconut tree and one
jack tree. What was released by Ext.B8 was the very same property
got back by Ext.A2 marupat. So no much significance can be
attributed to the said documents. The execution of release deed and
the marupat simultaneously (Exts.B8 and A2) on the very same day
is to avoid parting with the possession of the property by Paru and
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S.A.No.834/90 & LAA.N.334/90
her children. The trial court on the basis of Ext.A2 held that Paru
got only melpattom and possession of the property was not handed
over as per Ext.A2. The trial court also examined the right of the
2nd defendant on the strength of Ext.B1 assignment deed dated
26/7/1973 and B2 certificate of sale. The trial court held that the 2nd
defendant has got absolute right over 61 cents of land as per
Exts.B1 and B2. The trial court also considered the question as to
whether the 2nd defendant got the balance extent of property. The
total extent of property is 94 cents. The assignment deed covers
only 61 cents. The trial court also accepted the contention of the 2nd
defendant that she is in possession of the balance extent of land.
The trial court held that though the contention of oral lease alleged
by the 2nd defendant is found against, looking into the boundaries of
Exts.X1, A2, B1 and B3, it has to be held that the 2nd defendant is
holding more than 61 cents and the total extent would be about 1
acre and 33 cents.
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S.A.No.834/90 & LAA.N.334/90
6. The plaintiffs challenged the decree and judgment
dated 29/8/1987 in A.S.No.3/88. The Appellate Court for more or
less the same reasons confirmed the decree and judgment of the trial
court holding that the 2nd defendant has proved her right over the
plaint schedule property and dismissed the appeal.
7. The common case of the parties is that the plaint
schedule property belonged to Kadamberi Devaswom in jenmom.
The plantiffs’ case is that the grandfather of the plaintiffs,
Kurankunnil Kannan was in possession of the same on kuzhikanam
right under Kadamberi Devaswom and that after the death of
Kannan, his only son Koran continued to possess the property and
after his death, his wife-Paru and her children continued to possess
and enjoy the property on kuzhikanam right. The suit was filed for
partition and separate possession of 4/5 share. The defendants
denied the plaintiffs’ right over the plaint schedule property and
contended that the plaint schedule property is not available for
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S.A.No.834/90 & LAA.N.334/90
partition.
8. I have perused the joint written statement filed by the
defendants. The lst defendant is one of the children of Koran and
Paru and the 2nd defendant is the wife of the lst defendant. In
paragraph 2 of the written statement, it is stated that Kannan’s right
was assigned to one Ali and that under the said Ali, Koran, the
father of plaintiffs and lst defendant, was in possession and
enjoyment of the property under the kudiyirippu right (lease). It is
also stated in the written statement that after the death of Koran,
the right of Koran devolved on his wife Paru and the lst defendant
and they were in possession and enjoyment of the property. While
so, both of them released their right in favour of the intermediary
and others.
9. The case of the defendants is that the 2nd defendant
acquired title over the property by virtue of the sale deed dated
26/7/1973 executed by Raghavan in her favour. Thus, the 2nd
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S.A.No.834/90 & LAA.N.334/90
defendant contended that she is the absolute owner of 61 cents out
of the plaint schedule property by virtue of the said sale deed
(Ext.B1) and that the balance extent is in possession of the 2nd
defendant as per the oral lease from the intermediary.
10. As per the contentions in the written statement the
defendants have admitted the possession and enjoyment of the
property by Kannan as well as Koran. The plaintiffs claimed title
over the property as the legal heirs of deceased Koran. They
claimed that originally Kannan was a lessee under Kademberi
Devaswom and that after his death his son Koran enjoyed the
property. In the light of the admission of Kannan’s and Koran’s
possession, the burden to prove that Koran released or surrendered
the leasehold right to the jenmi is on the defendants. It is the
definite case of the defendants that deceased Koran surrendered the
right over the plaint schedule property in favour of the
intermediary. Defendants have produced Exts.B1 to B7 to prove
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S.A.No.834/90 & LAA.N.334/90
their claim. Ext.B1 is the registration copy of the assignment deed
executed by the auction purchaser-Raghavan in favour of the 2nd
defendant for an extent of 61 cents. Ext.B2 is the sale certificate
and Ext.B3 is the certified copy of the purchase certificate issued to
the 2nd defendant by the Land Tribunal in respect of Ext.B1
property.
11. PW1, on behalf of the plaintiffs, testified before the
court below that the plaintiffs or the deceased Koran or their mother
had no occasion to surrender the plaint schedule property in favour
of the intermediary in respect of the property situated in
R.S.No.26/7 and 8. The right obtained by the intermediary as per
Ext.B8 is the Melpattom right. Ext.B8 is the release deed executed
by Paru and her children. By Ext.B8 release deed Paru and her
children released their Melpattom right to the intermediary,
Avvakkar. The items released are the house, well, one coconut tree
and one jack tree etc. The very same items were returned to Paru
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S.A.No.834/90 & LAA.N.334/90
and her children by Marupattom executed simultaneously by the
intermediary, Avvakkar. After release of the property by Ext.B8,
the same items were received back on the same day under Ext.A2.
From Ext.B8 and Ext.A2, it is clear that what was released and
what was obtained back on the same day are the very same right
namely Melpattom right over the plaint schedule property.
12. The appellants/plaintiffs seriously and vehemently
attacked the findings of the courts below holding that the plaintiffs
have no right over the property. It is an admitted case that the
property belonged to Kademberi Devaswom and that under the
intermediary the father of the plaintiffs and the lst defendant was in
possession of the property. It is also not disputed that after the
death of Koran, the tenancy right held by Koran devolved on the
plaintiffs and the lst defendant and their mother-Paru. I have
referred to the release deed executed by Paru and a marupat in
favour of the intermediary. The documents are Exts.B8(X1) and
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S.A.No.834/90 & LAA.N.334/90
A2.
13. Exts.B8 and A2will show that the possession of the
property continued to be with Paru and her children. There is no
evidence to show that either Paru or her children, who are the
plaintiffs and lst defendant, were evicted from the plaint schedule
property. It is not disputed by the defendants that the property was
originally possessed and enjoyed by Kannan, who is the father of
Koran. In the written statement it is admitted that Kannan and
Koran enjoyed the property. There is no evidence to show that the
leasehold right enjoyed by Kannan was released or surrendered to
the landlord at any point of time. It is seen from the evidence that
O.S.No.142/1963 was instituted by the landlord against the
intermediary and that Paru and her children were not impleaded in
that case. It is nobody’s case that Paru and her children were made
parties to the suit. Paru and her children, who are the successor in
interest of the original tenants were not parties to the said suit.
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S.A.No.834/90 & LAA.N.334/90
Therefore, it can be seen that the sale certificate related only to the
intermediary right and at no point of time the plaintiffs and the lst
defendant were dispossessed pursuant to such sale certificate.
14. The contesting defendants were not able to
explain the circumstances under which the plaintiffs’ grandfather
Kannan occupied the property. Therefore, it is clear that both the
courts below went wrong in appreciating the right obtained by
Kannan and Koran and later by Paru and her children and also the
right obtained by the auction purchaser Raghavan vide Ext.B2 sale
certificate. The definite case of the plaintiffs is that the property
was taken delivery from Paru and her children and therefore the
person, who is alleged to have taken delivery of the property cannot
be said to have obtained possession of 61 cents as plaintiffs and
defendants 1 to 4, who were in possession, were not dispossessed.
The testimony of lst defendant as DW1 would go to show that he is
not able to say whether delivery of possession has been effected
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S.A.No.834/90 & LAA.N.334/90
pursuant to Ext.B2 sale certificate. DW1 who is the husband of the
2nd defendant, admits that Paru and her children never surrendered
the property to anybody. DW1 is also not in a possession to say
whether the auction purchaser has taken delivery of the property.
He also admitted as DW1 that his wife never had possession under
the auction purchaser. In the above context, the courts below ought
to have found that Ext.B2 sale certificate relates to the sale of
intermediary right only and no delivery has been effected pursuant
to Ext.B2. The lst defendant admitted that on the date of the sale by
auction, himself and his wife were in possession of the property and
they were living in the house. Therefore, it can be reasonably
concluded that the possession of 1st defendants could only be as the
legal heir of Paru and Koran and not under the assignment deed
which can convey only the intermediary right obtained under
Ext.B2 sale certificate. A reading of Ext.B1 assignment in favour of
the 2nd defendant would make it clear that it did not convey any
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S.A.No.834/90 & LAA.N.334/90
possession of the property to the 2nd defendant, which relates to 61
cents. It is recited in Ext.B1 that the 2nd defendant was in
possession of the property as a lessee under the auction purchaser.
From the facts and evidence proved, the said recital is not corect.
The assignor got sale certificate only in 1967. Regarding the
remaining extent the 2nd defendant claims that she is in possession
under an oral lease. Section 74 of the Kerala Land Reforms Act
prohibits creation of lease after 1/1/1964. Therefore, it is clear that
the oral lease alleged in respect of the remaining extent is a false
case, as it was intended to make it appear that the 2nd defendant has
obtained possession of larger extent pursuant to Ext.B1. The
deposition of DW1 would go to show that his mother has been in
occupation of the building for the last 20 years and that even on the
date of sale in execution of the decree, DW1 and his wife the 2nd
defendant were residing. It is also significant to note that the 2nd
defendant has applied for a certificate of purchase in respect of 61
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S.A.No.834/90 & LAA.N.334/90
cents covered by the sale, but in respect of the remaining extent (33
cents) covered by the alleged oral lease, no application has been
made for issuance of certificate of purchase. The very fact that on
the date of sale DW1 and his wife, the 2nd defendant were residing
in the building itself goes to show that the property was not taken
delivery by the auction purchaser. Considering the totality of
circumstances and evidence, it is seen that the 2nd defendant’s
residence can only be under Koran and family and therefore, she
cannot claim any independent right as contended in the written
statement. Therefore, the finding of the courts below based on the
contention that the 2nd defendant has got absolute right and
possession over the property is without any merit and is
unsustainable in law. The plaintiffs have already proved their right
over the property and as such the property is liable to be partitioned
and the plaintiffs are entitled to the relief claimed in the plaint. The
substantial questions of law formulated are answered.
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S.A.No.834/90 & LAA.N.334/90
15. In the result, S.A.No.834/90 is allowed. The
judgment and decree in A.S.No.3/88 are set aside. The preliminary
decree is passed on the following terms:
1) That the plaint schedule property shall
be divided into five equal shares and the plaintiffs be
entitled to get 4/5 shares and the quantum of future profits
will be decided at the time of final decree proceedings.
2) That the question of reservation if any,
claimed by the sharers be left open for consideration at the
time of passing final decree.
3. That the cost of the suit has come out of
the estate.
L.A.A.No.334/90.
16. A portion of the plaint schedule property in the suit
having an extent of 0.1040 hectares of land in R.S.No.26/12 of
Morazha Village was acquired. On 26/5/1986 the Special Tahsildar,
Kuthuparamba passed an award fixing the compensation at
Rs.22,214.24. The 2nd defendant in the suit claimed exclusive right
over the property acquired. Therefore the acquisition authorities
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S.A.No.834/90 & LAA.N.334/90
referred the case to the reference court and the reference court
numbered the case as LAR.No.353/87 and tried the same along with
the suit. The suit was dismissed against which A.S.No.3/88 was
filed by the plaintiffs in the suit. The learned Sub Judge dismissed
the appeal confirming the decree and judgment passed by the trial
court. LAR.No.353/87 was separately considered and on the basis
of the judgment in the suit the learned Sub Judge held that the 2nd
defendant in the suit, who is the 2nd claimant in the reference case,
is entitled to the entire amount of compensation, since she is found
to be in possession of the property on her own right. Thus the
amount in LAR was allowed to the 2nd claimant. The learned Sub
Judge allowed the 2nd claimant to draw the amount due by way of
compensation in the LAR on the basis of the findings in the suit. In
view of the decree passed by this Court in the suit the award passed
by the learned Sub Judge is set aside. The plaintiffs and the lst
defendant being the shareholders are entitled to share the
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S.A.No.834/90 & LAA.N.334/90
compensation. Plaintiffs 1 to 4 are entitled to 4/5 share and the lst
defendant is entitled to 1/5 th share. L.A.A.No.334/90 is allowed.
HARUN-UL-RASHID,
Judge.
kcv.