IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 275 of 1999(C)
1. PARAKANDI JANAKI
... Petitioner
Vs
1. P.P.KUMARAN(DIED)
... Respondent
For Petitioner :SRI.A.MOHAMED MUSTAQUE
For Respondent :SRI.M.K.SUMOD
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :18/09/2009
O R D E R
HARUN-UL-RASHID, J.
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A.S.No. 275 of 1999
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Dated this the 18th day of September, 2009
JUDGMENT
The Plaintiffs in O.S. No. 8 of 1995 on the file of the sub court,
Thalassery are the appellants herein. The suit filed for partition and
separate possession was dismissed by the trial court. Hence the appeal
The parties hereinafter referred to as plaintiffs and defendants as arrayed
in the suit.
2. It is the case of the plaintiffs that the plaint schedule property
originally belonged to one K. Kunhiraman The property was obtained by
one otherni by executing a registered marupat No. 186/1905 and
thereafter the said otherni has been in possession and enjoyment of the
plaint schedule property. Subsequent to the death of otherni her right was
devolved on her children Karinchi, Kalliyani and Koran and they had been
possessing and enjoying the property. Subsequently Karinchi died and
her right devolved on her children namely 1st defendant Raman,
Cherumarathi. Cherumarathi also died and her right devolved on her sole
son Koran. Kalliani also died and her right devolved on her son, the 2nd
defendant. Subsequently Raman also died and his right devolved on his
children the plaintiffs, and Koran. On the death of Koran his right devolved
to his wife and children namely defendants 3 to 7. Thus the plaint
schedule properties were enjoyed and possessed jointly by the plaintiffs
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and the defendants. It is submitted by the plaintiffs that the 3rd defendant
argued that the plaint schedule property exclusively belonged to her
husband late.Koran. In that premise, she had cut and removed one
jackfruit tree , one teak tree and one mango tree worth Rs. 5,000/- and
now she is attempting to cut and remove the valuable trees and thus
committed mischief in the plaint schedule property. The plaintiffs have
prayed that the plaint schedule property shall be divided into six equal
shares and for allotment of /6 to the plaintiffs, /6
1 1 thshare to the 1st
defendant and /6 2 th share to the 2nd defendant and the remaining /6 2 th
share to the defendants 3 to 12.. The plaintiffs have also prayed for
mesne profits and for /6 share of the value of the trees worth Rs. 6,000/-
2
cut and removed by the 3rd defendant.
3. The 2nd defendant admitted that the plaint schedule property
originally belonged to otherni who is the grandmother of the 2nd defendant
and subsequent to the death of otherni the property devolved upon her
legal heirs and one among the legal heirs was late.Kalliyani who is the
mother of the 2nd defendant. Since 2/6 right over the property devolved
upon late Kalliyani, after her death, the said share of property may be
allotted to the 2nd defendant.
4. Defendants 4 to 10 and 12 in their written statement denied
the allegations in the plaint are false. According to them the plaint
schedule property is not identifiable on the basis of the description in the
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schedule. Koran alone had exclusive title and possession over the
property and after Koran’s death the property belongs to them along with
defendants 3 and 11 as their exclusive property ,that they have obtained
purchase certificate from the Land Tribunal Kuthuparamba along with
defendants 3 and 11and hence they are not liable to pay any share of
mesne profits. It is contended that the plaint schedule property exclusively
belonged to them and pleaded for the dismissal of the suit.
5. The evidence in this case consists of oral testimonies of PW1,
DW1 Exts. A1 to A3, B1 to B5 and Exts. C1 to C3.
6. Ext.B1 is the purchase certificate issued in the name of Koran
who is the husband of the 3rd defendant and father of defendants 4 to 12
Ext.B2 is the certified copy of the relevant order passed by the Land
Tribunal Koothuparamba. Koran died in the year 1990 .After perusing
Ext.B1 purchase certificate, the Commissioner has opined that Ext.B1
tallies with the description of the property shown in the plaint. The trial
court held that Ext.B1 to B5 discloses the fact that the said Koran, the
predecessor in interest of the defendant 3 to 12, had been enjoying and
possessing the plaint schedule exclusively without interference by any of
the plaintiffs or defendants 1 and 2 and hence late Koran, was the
absolute owner of the plaint schedule property on the strength of Ext.B1
purchase certificate and Ext.B2 order passed by the Land Tribunal,
A.S. No. 275 of 1999 -4-
Koothuparamba. The trial court also observed that since the plaintiffs
have not challenged Ext.B2 order, Ext.B1purchase certificate has
become final and conclusive and therefore Koran has become the
absolute owner of the plaint schedule property and being the legal heirs of
the deceased Koran, defendants 3 to `12 have got exclusive right over the
property. The trial court concluded that the plaint schedule property is not
available for partition and dismissed the suit.
7. Before this Court the appellants/ plaintiffs have produced an
order passed by the Appellate Authority (LR) Kannur, in A.A. 142/1998.
The appeal was preferred by the plaintiffs in the suit (appellants herein)
against Ext.B2 order passed by the Land Tribunal, Koothuparamba in
O.A. 5150/1975. The Appellate Authority held that the late Koran
obtained pattayam in collusion with the 11th defendant(Jenmi), undermining
the right of the appellants in the plaint schedule property, that the
appellants have also right over the plaint schedule property and that
Ext.B1 Purchase certificate was issued in favour of Koran without
conducting proper enquiry and therefore the Land tribunal has erred in
passing Ext. B2 order. The Appellate Authority quashed Ext.B2 order
and cancelled Ext.B1 certificate purchase Certificate.
The learned counsel for the appellants submitted that the matter is
now pending before the Land Tribunal Koothuparamba after remand.
According to him the suit was dismissed by the trial court solely on the
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basis of Ext.B1 purchase certificate and Ext.B2 order which were later
cancelled by the Appellate Authority in the appeal preferred by the
appellants. Since Ext.B1 purchase certificate is cancelled and Ext.B2
order is quashed by the Appellate Authority’s order in A.A. No.142/1998,
produced by the appellants/plaintiffs and the fact that the matter is now
pending before the Land Tribunal Koothuparamba for a fresh adjudication ,
I am of the view that the judgment and decree passed by the trial court
dismissing the suit, requires re-consideration
In the result, the judgment and decree under appeal are set aside.
The suit is remanded to the trial court for denovo consideration in
accordance with law. While re-considering the case the trial court shall take
into consideration the claims of the plaintiffs and the order to be passed by
the Land tribunal after remand by the Appellate Authority. There will be
no order as to costs. The plaintiffs are entitled to refund of the court fee
paid in this appeal.
(HARUN-UL-RASHID, JUDGE)
es.
HARUN-UL-RASHID, J.
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A.S. No. 275 of 1999
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JUDGMENT
18th September, 2009