A.S. No. 493 of 2000 (D)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 3RD DAY OF DECEMBER 2013/12TH AGRAHAYANA, 1935 AS.No. 493 of 2000 (D) ----------------------- AGAINST THE ORDER/JUDGMENT IN OS 714/1994 of III ADDL.SUB COURT, KOZHIKODE DATED 28-03-2000 APPELLANT(S):(DEFENDANTS 10 TO 13) ---------------------------------1. KALLIANIKUTTY, W/O.BALAKRISHNAN K. ASARIKKANDI THAMASAM CHERUVANNUR AMSOM DESOM KOZHIKODE TALUK. 2. CHILDREN, CHITHRALEKHA, D/O.KANNADATH BALAKRISHNAN RESIDING AT -DO- -DO3. USHA @ BABY, D/O.KANNADATH BALAKRISHNAN, RESIDING AT -DO- -DO4. KANNADATH RAGHAVAN, S/O.CHOYIKUTTY (DIED) CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK LR'S IMPLEADED. ## ADDL.5TH APPELLANT V.ANANDKUMAR S/O.VALLIKKATTU BALAN CHERUVANNOOR AMSOM AND DESOM, KOZHIKODE TALUK. (THE LEGAL REPRESENTATIVE OF DECEASED 4TH APPELLANT IS IMPLEADED AS ADDL.5TH APPELLANT AS PER ORDER DATED 2/12/11 IN IA4331/10). BY ADV.A.P.CHANDRASEKHARAN PRABHA R.MENON KODOTH PUSHPARAJAN M.KRISHNA KUMAR K.JAYESH MOHANKUMAR BY ADV.SRI.T.SETHUMADHAVAN FOR ADDL.5TH APPELLANT RESPONDENTS:(PLAINTIFF & DEFENDANTS 1 TO 9) 1. KANNADATH PAVITHRAN, S/O.KUNHIKELU CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK. (DIED) LR'S IMPLEADED. 2. SREEMATHY, W/O.SREEDHARAN K. VATTAPPARAMBIL THAMASAM CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK. 3. MOHANAN, S/O.SREEMATHY, R/at -DO- -DO- (DIED. LR's RECORDED. 4. PRAMOD, S/O. SREEMATHY R/at -do- 5. SUNDARAN, S/O.SREEMATHY, R/at -do- 6. SANTHOSH, S/O.SREEMATHY, R/at -do- -do- 7. ANAND, S/O.SREEMATHY, R/at -do- -do- 8. JAYASREE, D/O.SREEMATHY, R/at -do- -do- 9. JYOTHI, D/O.SREEMATHY, R/at -do- -do- 10. BEENA, D/O. SREEMATHY, R/at -do- -doADDL.RESPONDENT 11 SAVITHRI, 48 YEARS, WIFE, KALLATHKANDIPARAMBU, KANNADATH HOUSE, CHERUVANNUR AMSOM DESOM P.O. FEROKE, CALICUT.673 631. ADDL.RESPONDENT 12 JEEJA, D/O.LATE PAVITHRAN, W/O. JAYACHANDRAN R/at -do -doADDL.RESPONDENT 13 JYOTHI D/O.LATE PAVITHRAN, W/O.LAKSHMANAN R/at -doADDL.RESPONDENT NO.14 JAYA D/O.LATE PAVITHRAN W/O.VINODKUMAR R/at -do- -doADDL.RESPONDENTS NO.11 TO 14 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT AS PER ORDER DATED 12/10.10 in CMP 5492/00. R,R11TO14 BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) R,R11TO14 BY ADV. SRI.P.B.KRISHNAN R,ADDL.R 11 TO 14 BY ADV. SRI.K.T.SHYAMKUMAR R,ADDL.R.11 TO 14 BY ADV. SRI.HARISH R. MENON R4 BY ADV. SRI.C.E.UNNIKRISHNAN R6,R8 & 10 BY ADV. SRI.T.K.VIPINDAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 1-10-2013, THE COURT ON 3/12/13 DELIVERED THE FOLLOWING: ## **S.S.SATHEESACHANDRAN,J.** ## **==========================** **A.S. No. 493 of 2000 ===========================** ## **Dated, this the 3rd day of December, 2013** ## **JUDGMENT** Preliminary judgment and decree passed in a suit for partition O.S.714/1994 by learned Sub Judge, Kozhikode is challenged in this appeal. Defendants 10 to 13 are the appellants. 2. Short facts necessary for disposal of the appeal can be summed up thus:- Plaintiff claimed one half right over the plaint property described as Asarikandiparambu situated in resurvey 149/10 of Cheruvannur amsom , Kozhikode Taluk, seeking partition and allotment of his share with mesne profits from defendants and also eviction of defendants 10 to 12, who are in occupation of the building situated in the property. Concededly plaint A.S.493/2000 2 property belonged to Unniperi who acquired the same under Ext.B1 kanam deed. Unniperi had two sons Choyikutty and Kunhikelu and after her death the property devolved upon them. Kunhikelu is the father of plaintiff and Choyikutty predecessor of defendants 1 to 9. 10[th] defendant is the widow of one of the sons of Choyikutty and defendants 11 and 12 are the children of 10[th] defendant. 13th defendant is another son of Choyikutty. Relationship of parties and also that the acquirer of property was Unniperi under Ext.B1 kanam deed are not matters in dispute. Plaintiff alleged that Kunhikelu and Choyikutty, both of them together, availed a loan from one Balakrishnan and on default of repayment of loan in execution of the decree obtained by Balakrishnan in small cause 446/1935 the plaint property was attached and sold. Ext.A1 is the sale certificate issued in favour of Balakrishnan. Balakrishnan sold the property in favour of plaintiff and Sreedharan son of Choyikutty, predecessor of defendants 1 to 9. A.S.493/2000 3 Later, after the death of Sreedharan, plaintiff and defendants 1 to 9, all of them together, obtained Ext.A3 purchase certificate over the property from Land Tribunal. Defendants 10 to 12 who are the widow and children of another son of Choyikutty were permitted to reside in the building situate in plaint property. That permission has now been revoked, and they are bound to vacate from the building, was the case of plaintiff. On such allegations plaintiff claimed partition and allotment of one half right in the plaint schedule property stating that other half belonged to defendants 1 to 9,and for eviction of defendants 10 to 12 from the building. Defendants 1 to 9, some among them together and the others separately, filed written statements resisting the suit claim for partition disputing the auction sale covered by Ext.A1 and subsequent sale in favour of plaintiff and Sreedharan by the auction purchaser Balakrishnan. Plaint property belonged to them absolutely was their case disputing the case of A.S.493/2000 4 plaintiff over the permissive occupation of building by defendants 10 to 12 as false. 11[th] defendant separately and 10th and 12[th] defendants together filed written statements contending that their predecessor Balakrishnan, who was one of the sons of Choyikutty, was enjoying the property exclusively as of right and these defendants are in possession and occupation of the building as owners of the property. Subsequently these defendants filed another written statement setting forth a case that the plaint property was sold in execution of decree in another suit O.S.385/1935 and from the auction purchaser, after delivery the property was purchased by Raghavan, another son of Choyikutty and he is a necessary party to the suit. Simultaneously with the filing of that written statement by these defendants the aforesaid Raghavan applied for his impleadment as a party to the suit. That being allowed he was impleaded as the 13[th] defendant. In his written statement he contended that in execution of the decree in A.S.493/2000 5 O.S.385/35 plaint property was sold in auction sale and, later, delivery was also effected. To save the property from execution in O.S.385/1935 plaintiff and Sreedharan in collusion with the plaintiff in small cause 446/1935 manipulated records to show that they obtained the property after sale in execution of the decree in the above suit. Plaintiff and Sreedharan never obtained any right under Exts.A1 and A2 was the case of 13[th] defendant. 13[th] defendant claimed of obtaining purchase certificate over the plaint property from the Land Tribunal and also of paying its revenue charges. 3. On the pleadings of the parties the vital issue that arose for consideration were which among the two court sales,both of them, allegedly, conducted over the plaint property, namely, small cause 446/1935, basis of the claim by plaintiff, and O.S.385/1935, basis of claim by defendants 10 to 13, has to be accepted, and, which of the two purchase certificates, one obtained by plaintiff A.S.493/2000 6 and defendants 1 to 9 as successors of Sreedharan, and, the other by 13[th] defendant, is valid and binding over the plaint property. Learned Sub Judge on the materials placed in the case came to the conclusion that sale effected in favour of plaintiff and Sreedharan, predecessor of defendants 1 to 9, pursuant to the court sale in O.S.446/1935 is binding on the plaint property. Purchase certificate issued in favour of plaintiff and defendants 1 to 9 by the Land Tribunal recognising their rights under Ext.A2 sale deed was also upheld by the learned Sub Judge where the materials showed that in the appeal preferred by plaintiff purchase certificate issued in favour of 13[th] defendant had been revoked under Ext.A8 Order by Appellate Authority. Accepting the case of plaintiff that defendants 10 to 12 are in permissive occupation of the building and the permission has been revoked, a preliminary decree was passed for allotment of one half share in the plaint property to plaintiff holding that he is A.S.493/2000 7 entitled to evict defendants 10 to 12 from the property. His claim for mesne profits was relegated for determination in the final decree proceedings. Decree passed as aforesaid is challenged in the appeal jointly by defendants 10 to 13. 4. I heard the counsel on both sides. 5. Appellants have produced some documents pertaining to the proceedings of Appellate Authority in the appeal giving rise Ext.A8 Order revoking the purchase certificate issued to 13[th] defendant, seeking reception of such documents as additional evidence. 13[th] defendant was not given any notice by the Appellate Authority and his address was incorrectly shown in the appeal moved by plaintiff and as such Ext.A8 Order passed by that authority is vitiated by fraud, is the submission of learned counsel for appellants to contend that no reliance is permissible on Ext.A8 order. Reliance is also placed on **Sree Karikad Devaswom v. Wandoor Jupiter Chits (P) Ltd (1980** A.S.493/2000 8 **K.L.T.760)** to contend that a purchase certificate issued without notice to the owner and vitiated by fraud can have no legal sanctity. Name of 13[th] defendant was wrongly shown as Kannadath Raghavan and notice was sent in such name from appellate authority, and that clearly indicated the fraud practised by appellants in the proceedings before that authority, is the further submission of counsel to impeach Ext.A8 Order. Court below has not considered which of the two sale certificates, one obtained by plaintiff and Sreedharan and the other in a different suit by 13[th] defendant, both in respect of plaint property, is valid, and, it has acted upon Ext.A8 Order of Appellate Authority to negative the case of defendants 10 to 12, is the submission of counsel. Where Ext.A8 Order of Appellate Authority is found to be unsustainable as vitiated by fraud which of the above two sales over the property is valid has to be considered, for which setting aside the decree case has to be remitted is the submission of counsel. It is also A.S.493/2000 9 contended by counsel that the decree granted directing eviction of defendants 10 to 12 from the building in the plaint property, at any rate, cannot be sustained. When defendants 1 to 9, who, even according to plaintiff, are having one half right over the property, have no objection to the continuance of occupation of building by the above defendants, plaintiff cannot claim for their eviction unless the building is included in his share in final decree, is the further submission of the counsel to seek for vacating the direction over eviction of the above defendants. On the other hand, learned counsel appearing for plaintiff contended that there is no merit in the appeal and the decree passed by the court below, which is fully supported by the evidence tendered, is unassailable. As against Ext.A8 order 13[th] defendant had moved a review petition before the Appellate Authority and that petition was dismissed, submits the counsel for plaintiff. No further challenge against Ext.A8 order after A.S.493/2000 10 dismissal of the review petition by filing a revision before this court under section 103 of the Kerala Land Reforms Act was proceeded by 13[th] defendant, submits the counsel. When Ext.A8 Order has become final the contention raised that it is vitiated by fraud has no merit and in the proved facts of the case no inquiry to find out which of the two court sales is valid is called for, is the further submission of counsel. Purchase certificate issued in favour of plaintiff has to be treated as conclusive proof of the assignment of the right, title and interest of the land owner and intermediaries in his favour, is the further submission of counsel relying on Section 72K of the Kerala Land Reforms Act. Decree passed by the court below, in such circumstance, is only to be upheld and the appeal has to be dismissed, is the submission of counsel for plaintiff. 6. Defendants 10 to 12 who are the widow and children of Balakrishnan, one of the sons of Choyikutty, did not pursue their case of right A.S.493/2000 11 claimed under Balakrishnan, but, resisted the claim of plaintiff under 13[th] defendant, another son of Choyikutty, contending that pursuant to a court sale of plaint property he obtained the property and, later, a purchase certificate was issued in his favour by the Land Tribunal. 13[th] defendant who was not a party to the suit got himself impleaded and asserted his exclusive right over the property setting forth similar contentions raised by defendants 10 to 12. Now the above defendants have joined together and preferred this appeal challenging the preliminary decree and judgment passed in favour of plaintiff. In the given facts and circumstances established in the case on the materials produced where both plaintiff and also 13[th] defendant, who claimed rival title, possession and interest over the plaint property under two different court sales, had approached the Land Tribunal for assignment of landlord's right in their favour the orders passed by the tribunal shall have binding effect. Concededly under A.S.493/2000 12 Ext.A8 order passed by Appellate Authority (Land Reforms) Kannur purchase certificate issued in favour of 13[th] defendant in respect of the property had been revoked and purchase certificate of the plaintiff issued in another proceeding was upheld. Address of 13[th] defendant was shown incorrectly in the proceedings and no notice was given to him by Appellate Authority are urged relying on some documents produced to impeach the validity of Ext.A8 order. Admittedly, against Ext.A8 order 13[th] defendant had moved a review petition before the Appellate Authority and that was turned down. He did not challenge Ext.A8 Order any further and it has become final. When that be the case, challenge raised against Ext.A8 order with respect to his address, non service of notice etc cannot be given any merit. Where purchase certificate over the plaint property issued in favour of plaintiff and defendants 1 to 9 has been upheld under Ext.A8 order by the Appellate Authority setting aside the purchase certificate issued in favour of 13[th] A.S.493/2000 13 defendant and that has become final, no inquiry is called for to examine which among the two court sales conducted over the plaint property is valid. Though Ext.A8 order was passed by the Appellate Authority during the pendency of the suit, it is seen, validity of purchase certificates issued in favour of rival claimants before commencement of the suit was considered by the authority. Purchase certificate issued earlier to plaintiff and defendants 1 to 9 was upheld, and that of the 13[th] defendant had been revoked. When purchase certificate issued in favour of 13[th] defendant had been revoked and Ext.A3 purchase certificate of plaintiff and defendants 1 to 9 was upheld, claim canvassed by 13[th] defendant over plaint property, which is supported by defendants 10 to 12 as well, on the basis of court sale in O.S.No.385/1935 and, later, sale in favour of 13[th] defendant by the auction purchaser has no merit. The above defendants (10 to 13)have no right over the plaint property, and only plaintiff and defendants 1 to 9 A.S.493/2000 14 have partible rights over the property. 7.However, I find some force in the submission made by counsel for appellants objecting the right of plaintiff to evict defendants 10 to 12. Defendants 10 to 12, admittedly, are residing in the building in the plaint property as being the widow and children of Balakrishnan, one of the sons of Choyikutty. Plaintiff, one of the co-owners of the plaint property, cannot seek an order of eviction against them from the building in the suit for partition at this stage, if the other co-owners have no objections in continuing of their occupation. His entitlement to get eviction of defendants from the building would arise for consideration if only the building is allotted in the final decree towards his one half share in the property. The entitlement of plaintiff to evict defendants 10 to 12 from the property stated in the preliminary decree will be limited to the allotment of his share in the property in final decree. Having regard to the continued occupancy of the A.S.493/2000 15 building by defendants 10 to 12, while working out the equities in the final decree proceedings, court shall give preference to claim, if any, from defendants 1 to 9 to have the building in their share subject to valuation and equalisation of shares. Plaintiff can evict defendants 10 to 12 only if the building is allotted in his share in the final decree. Court below has only stated in the operative portion of the judgment that plaintiff is entitled to evict defendants 10 to 12 from the property. No order or direction has been passed for eviction of defendants 10 to 12 from the building as canvassed by plaintiff in the suit. So much so there cannot be any serious objection to the above declaration made by the court below. Still, as indicated earlier, in the final decree proceedings in working out the equities court below shall take note of the observations made above, and give preference to defendants 1 to 9, if any claim is made by them, for including the building in their share in the property. The A.S.493/2000 16 direction shall be subject to the feasibility in making such allotment and also equalisation of share valuation with plaintiff. Subject to the observations made as above preliminary decree and judgment passed by court below are upheld and the appeal is dismissed directing both sides to suffer their costs. Sd/- **S.S.SATHEESACHANDRAN JUDGE** /true copy/ P.S to Judge tpl/- A.S.493/2000 17 S.S.SATHEESACHANDRAN,J. ----------------------A.S.No.893 of 1996 & CROSS OBJECTION ----------------------- ## JUDGMENT 3[rd] October,2013