A.S.NO.13/1995 (G) & CROSS OBJECTIONS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** ## **TUESDAY, THE 2ND DAY OF APRIL 2013/12TH CHAITHRA 1935** ## **AS.No. 13 of 1995 (D) AND CROSS OBJECTION** **------------------------------------------------------------------[AGAINST THE JUDGMENT AND DECREE DATED 11-10-1994 IN O.S.NO.1146/1990 OF SUB COURT,QUILANDY]** **.........** **DEFENDANTS 10 TO 16/APPELLANTS:** **-------------------------------------------------------** - ****1. EDAVATHANATH AMMALU AMMA, **(DIED). W/O. PONNARI VENGOLI NARAYANAN NAIR, RESIDING AT PILLATTIL, VANMUGHAM AMSOM, CHINGAPURAM DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT.** - **2. EDAVATHANATH KARUNAKARAN NAIR, S/O. PONNARI VENGOLI NARAYANAN NAIR, OF DO. DO.** - **3. EDAVATHANATH SREEDHARAN NAIR, S/O. PONNARI VENGOLI NARAYANAN NAIR, OF DO. DO.** - **4. EDAVATHANATH ATHMARAMAN NAIR, S/O. PONNARI VENGOLI NARAYANAN NAIR, OF DO. DO.** - **5. EDAVATHANATH BHARGAVI AMMA, D/O. PONNARI VENGOLI NARAYANAN NAIR, OF DO. DO.** - **6. EDAVATHANATH KUMARI AMMA, D/O. PONNARI VENGOLI NARAYANAN NAIR, OF DO. DO.** - **7. EDAVATHANATH SEETHA AMMA, D/O. PONNARI VENGOLI NARAYANAN NAIR, OF DO. DO.** **BY ADVS. SMT.NARAYANIKUTTY CHETTUR, SRI.P.G.RAJAGOPALAN, SRI.M.GOPIKRISHNAN NAMBIAR.** ## **PLAINTIFFS AND DEFENDANTS 2 TO 9/RESPONDENTS:** **--------------------------------------------------------------------------------** ***1. PONNARI VENGOLI ACHUTHAN NAIR, *(DIED). S/O. AMMALU AMMA, RESIDING AT NOCHIYIL, VENMUGHAM AMSOM, CHINGAPURAM DESOM, P.O. CHINGAPURAM, VIA. THIKKODI, KOZHIKODE DISTRICT.** **Prv.** **A.S. NO.13/1995-D** **2. PONNARI VENGOLI PADMANABHAN NAIR, S/O. AMMALU AMMA, RESIDING AT THAZHATHE PATTATHIL HOUSE, NADERI AMSOM, KAVUMVATTOM DESOM, P.O. NADERI, QUILANDY TALUK, KOZHIKODE DISTRICT.** **3. PONNARI VENGOLI PADMAVATHY AMMA, D/O. AMMALU AMMA, RESIDING AT THALAPARAMBATH HOUSE, PURAKKAD AMSOM, KOZHIPURAM DESOM, P.O. CHINGAPURAM, VIA. THIKKODI, KOZHIKODE DISTRICT.** **4. PONNARI VENGOLI JANAKI AMMA, D/O. AMMALU AMMA, RESIDING AT MEERANGATH HOUSE, NADERI AMSOM, KAVUVATTOM DESOM, P.O. NADERI, QUILANDY TALUK, KOZHIKODE DISTRICT.** - ***5. PONNARI VENGOLI NARAYANI AMMA, *(DIED) D/O. LAKSHMI AMMA, RESIDING AT ILLATH HOUSE, VENMUGHAM AMSOM, CHINGAPURAM DESOM, P.O. CHINGAPURAM, VIA. THIKKODI, KOZHIKODE DISTRICT.** **6. PONNARI VENGOLI MEENAKSHI AMMA, D/O. LAKSHMI AMMA, RESIDING AT MANATHANKANDY HOUSE, PURAKKAD AMSOM, KOZHIPURAM DESOM, P.O. CHINGAPURAM, VIA. THIKKODI, KOZHIKODE DISTRICT.** - **#7. PALATHIL DEVI AMMA, #(DIED). W/O. KUNHIANANDAN NAIR, RESIDING AT VENGOLI HOUSE, VANMUGHAM AMSOM, CHINGAPURAM DESOM, P.O. CHINGAPURAM, VIA. THIKKODI, KOZHIKODE DISTRICT.** **8. PALATHIL PUSHPA AMMA, D/O. DEVI AMMA, OF DO. DO.** **9. PALATHIL JAYA AMMA, D/O. DEVI AMMA, OF DO. DO.** **10. PALATHIL AJITHA, D/O. DEVI AMMA, AGED 21 YEARS, OF DO. DO.** **11. PALATHIL USHA, D/O. DEVI AMMA, AGED 19 YEARS, OF DO. DO.** **12. PONNARI VENGOLI BALAKRISHNAN NAIR, S/O. AMMALU AMMA, RESIDING AT KAVIL THAZHA HOUSE, NADERI AMSOM, KAVUMVATTOM DESOM, P.O. NADERI, KOZHIKODE DISTRICT.** ***ADDITIONAL R.13 TO R.15 IMPLEADED:** **13. PADMANABHAN NAIR, S/O. PONNARI VENGOLI NARAYANI AMMA, RESIDING AT ILLATH HOUSE, VENMUGHAM AMSOM, CHINGAPURAM DESOM, P.O. CHINGAPURAM, VIA. THIKKODI, KOZHIKKODE DISTRICT.** **Prv.** **A.S. NO.13/1995-D** ## **14. BALAKRISHNAN NAIR, S/O. PONNARI VENGOLI NARAYANI AMMA, RESIDING AT PUTHISSERY HOUSE, OF DO.** - ***15. SUKUMARAN NAIR, *(DIED). S/O. PONNARI VENGOLI NARAYANI AMMA, RESIDING AT VENGOLI HOUSE OF DO. DO.** ***SUPPLEMENTAL RESPONDENTS 13,14 & 15 ARE IMPLEADED AS LEGAL HEIRS OF THE 5TH RESPONDENT AS PER THE ORDER DATED 21/06/06 ON I.A. NO.1334/2003.** ## ***ADDITIONAL RESPONDENTS 16 TO 22 IMPLEADED:** **16. KALLIANI AMMA, W/O. PONNARI VENGOLI ACHUTHAN NAIR, NOCHIYIL HOUSE, VENMUGHAM AMSOM, CHINGAPURAM DESOM, P.O. CHINGAPURAM (VIA) THIKKODI, KOZHIKKODE (DIST.).** **17. RUGMINI, D/O. ACHUTHAN NAIR, “KRISHNA NIVAS” (URVANDI), NALLORNADU (P.O), (VIA). THONICHALIL, MANANTHAVADI, WAYANAD DISTRICT.** **18. RADHA, D/O. ACHUTHAN NAIR, PUTHIYOTTIL MEETHAL – UNNEPPANKANDI, P.O. MELUR, (VIA.), KOYILANDY, KOZHIKODE (DIST.).** **19. THANKAMANI, D/O. ACHUTHAN NAIR, AMBATTPOYIL – CHERIYATHA CHANGOLI, P.O. KALPATHUR, (VIA), MEPPAYUR – 673 524, KOZHIKODE (DIST.,).** **20. DEVADASAN, S/O. ACHUTHAN NAIR, NOCHIYIL HOUSE, VENMUGHAM AMSOM, CHINGAPURAM DESOM, (P.O) CHINGAPURAM, (VIA.), KAKKODI, KOZHIKODE (DIST.).** **21. RAHUL, S/O. SATHYABHAMA, KUTTIAMPURATHU HOUSE, (P.O), NADERI, (VIA). KOYILANDY, KOZHIKODE (DIST.,).** **22. PRIYA, D/O. SATHIABHAMA, OF DO- DO-.** ***LEGAL REPRESENTATIVES OF DECEASED IST RESPONDET ARE IMPLEADED AS ADDITIONAL RESPONDENTS 16 TO 22 AS PER ORDER DTD. 29/02/12 IN I.A. 3445/11.** **Prv.** **A.S. NO.13/1995-D** ## ***ADDITIONAL RESPONDENTS 23 TO 25 IMPLEADED:** **23. PADMINI AMMA, W/O. SUKUMARAN NAIR, VENGOLI HOUSE, VENMUGHAM AMSOM, CHINGAPURAM DESOM, (P.O) CHINGAPURAM, (VIA.) THIKKODI, KOZHIKODE (DIST.,).** ## **24. AJEESH, S/O. SUKUMARAN NAIR, DO- DO-.** **25. ANISHA, D/O. SUKUMARAN NAIR, RAYAROTH HOUSE, CHERANDATHUR (P.O), (VIA.) THIRUVALOOR, PONMERI, VATAKARA, KOZHIKODE (DIST.,).** ***LEGAL REPRESENTATIVES OF DECEASED 15TH RESPONDENT ARE IMPLEADED AS ADDL. R.23 TO R.25 AS PER ORDER DTD. 29/02/12 IN I.A. 3446/11.** ****IT IS RECORDED THAT IST APPELLANT DIED AND APPELLANS 2 TO 7 ALREADY IN THE PARTY ARRAY ARE HER LEGAL REPRESENTATIVES AS PER ORDER DTD. 15/01/13 IN MEMO DTD. 20/12/12 BEARING C.F. NO.39/13.** **#IT IS RECORDED THAT 7TH RESPONDENT DIED, VIDE ORDER DATED 23/03/07 ON MEMO DATED 14/03/2007 C.F. 1538/07.** **#IT IS RECORDED THAT THE RESPONDENTS 8 TO 11 IN THE APPEAL ARE THE LRS OF THE DECEASED 7TH RESPONDENT, VIDE ORDER DTD. 30/03/07 ON MEMO DATED 19/03/2007 C.F. 1589/07.** **R1 TO R12 BY ADV. SRI.B.KRISHNAN ADDL. R.16 TO R.25 BY ADV. SRI. PARTHASARATHY.** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14-03-2013, THE COURT ON 02/04/2013 DELIVERED THE FOLLOWING:** **Prv.** ## **S.S.SATHEESACHANDRAN, J.** ## **------------------------------A.S.NO.13 OF 1995 (G) & CROSS OBJECTIONS ----------------------------------Dated this the 2[nd] day of April, 2013** ## **J U D G M E N T** Preliminary decree and judgment passed in a suit for partition is challenged in the above appeal by defendants 10 to 16. Respondents 1 to 4 are plaintiffs in the suit. They have filed cross objections against the direction given in decree to exclude from partition the house occupied by appellants, and surrounding area, situate in plaint property. 2. Some of the parties in the proceedings viz. 1[st] appellant, and, 1[st] , 5[th] , 7[th] and 15[th] respondents in appeal have passed away, and their legal representatives have been recorded or substituted as additional appellants/respondents in appeal and cross objections as the case may be. 3. Plaint schedule property having an extent of 1 acre 24 cents belonged to Vengoli tharwad, and it was demised on **A.S.NO.13/1995 (G) & 2 CROSS OBJECTIONS** lease under a registered document (Ext.A1) in favour of one Cheriyamma and her three children, namely, Ammalu Amma, Lakshmi Amma and Krishnan Nair. Krishnan Nair predeceased his mother, and his right over the leasehold devolved upon his mother. In a suit for partition of tharwad properties filed by one Lakshmi Amma the above property was one among the items, and in that suit, Cheriyamma was the 8[th] defendant, Ammalu Amma, the 10[th] defendant, and 1[st] defendant in the present suit, son of Cheriyamma, was the 9[th] defendant. In the preliminary decree passed in that suit the leasehold right over the above property was kept to the lessees, Cheriyamma and her children. In the final decree passed in that suit though jenm right over the above property was assigned to the 9[th] defendant (present 1[st] defendant) leasehold rights of lessees reserved in the preliminary decree continued as such, is the case of plaintiffs. Plaintiffs and 9[th] defendant in the present suit are the children of Ammalu Amma, one of the daughters of Cheriyamma. On the death of Cheriyamma, who had[2] /4th share in the leasehold, her legal heirs Lakshmi Amma, Ammalu Amma and 1[st] defendant **A.S.NO.13/1995 (G) & CROSS OBJECTIONS** **3** inherited such right by succession, and Lakshmi Amma and Ammalu Amma got[5] /12 share each and 1[st] defendant,[2] /12 share, according to plaintiffs. Defendants 2 and 3 in the suit are children of Lakshmi Amma. She had another son, namely, Kunhianandan Nair, who had passed away. His widow and children are defendants 4 to 8 in the suit. The 1[st] defendant died pending suit and his widow and children are impleaded as additional defendants 10 to 16. On partition of property plaintiffs will get[12] /36 shares, 1[st] defendant (his legal heirs 10 to 16) -[6] /36, 2[nd] defendant -[5] /36, 3[rd] defendant -[5] /36, defendants 4 to 8 together -[5] /36 and 9[th] defendant -[3] /36 share, was the case of plaintiffs seeking its division by metes and bounds in accordance with the shares stating that they do not wish to continue its jointness. 4. Suit was resisted by defendants 10 to 16, who were impleaded as legal heirs of 1[st] defendant. Cheriyamma who obtained the lease from karanavan of tharwad, later, under an **A.S.NO.13/1995 (G) & CROSS OBJECTIONS** **4** oral lease demised it in favour of her son, the 1[st] defendant, according to these defendants. The 1[st] defendant thereafter continued in exclusive possession and enjoyment of the property as a lessee, and after passing of preliminary decree in the previous suit, O.S.No.81/52, in execution proceedings, 1[st] defendant got delivery of the property, and, in the delivery account, 1[st] plaintiff and his sister Lakshmi Amma had signed as attestors and such delivery was duly recorded by the court, according to these defendants. Later, 1[st] defendant executed Ext.B7 lease deed in favour of the 10[th] defendant and she in turn executed Ext.B8 counter lease in favour of the 1[st] defendant, her husband. Pursuant to Ext.B7 getting physical possession of the property she continued in enjoyment of the same effecting valuable improvements including construction of a residential building. She is in occupation of that building with her children ever since. Later in a suo motu proceedings taken by the Land Tribunal, Melady, Ext.B31 purchase certificate was issued in her favour recognising her status as a cultivating tenant over the plaint property. Subsequently, 10[th] defendant had partitioned **A.S.NO.13/1995 (G) & 5 CROSS OBJECTIONS** the property in favour of two of her children, defendants 15 and 16, and they are in absolute possession of the shares allotted to them was their further case. Even if the plaintiffs and defendants 2 to 9 have any manner of right or title over the property, which is not admitted, according to these defendants, they have lost the same by ouster, adverse possession and limitation, and the property is not liable to be partitioned. 5. In the light of the contentions raised by the above defendants as aforesaid, plaintiffs amended their plaint. Disputing the oral lease alleged to have been obtained by 1[st] defendant from his mother Cheriyamma they contended that delivery taken in the execution proceedings of the previous suit has only the effect of handing over symbolic possession. Ext.B31 purchase certificate obtained by 10[th] defendant was also challenged as vitiated by fraud and not binding on others who have leasehold rights over the property, but, were not made parties to the proceedings before the Tribunal. **A.S.NO.13/1995 (G) & 6 CROSS OBJECTIONS** 6. The other defendants in the suit, defendants 2 and 3 filing a joint written statement, and defendants 4 to 8 together, a joint written statement, supported the case of plaintiffs claiming partition and separate allotment of their shares in the property. 7. On the pleadings of the parties, initially, the trial court framed the following issues: (1) Whether suit property was partible as alleged ? (2) Whether the plaintiffs or defendants 2 to 9 have any manner of right or possession over the plaint schedule property as alleged ? (3) Whether the plaintiffs and defendants are in joint possession of the property as alleged ? (4) Whether the court fee paid is correct ? (5) Whether the right, if any of the plaintiffs and defendants 2 to 9 are lost by adverse possession and limitation ? (6) To what equity defendants 10 to 16 entitled to in the event of partition ? (7) What is the order as to mesne profits ? (8) Reliefs and costs ? **A.S.NO.13/1995 (G) & 7 CROSS OBJECTIONS** ## Subsequently two more issues were raised thus: (1) Whether the purchase certificate in favour of 10[th] defendant in SMP 2626/73 before Land Tribunal Melady is binding on the plaintiffs ? (2) Whether the 10[th] defendant is estopped from contending tenancy rights by the decision in O.S.No.81/52 before Sub Court Badagara ? 8. On the side of plaintiffs, PW1 was examined and Exts.A1 to A7 were marked, and for the contesting defendants, DW1 and DW2 were examined and Exts.B1 to B57 were executed. Learned Sub Judge negativing the contentions raised by contesting defendants held that the suit property is partible and plaintiffs and defendants are entitled to separate allotment in the property in accordance with the shares specified in the plaint. So far as the residential building situate in the property taking note of its occupation by defendants 10 to 16 learned Sub Judge held that the said building is not available for partition and the building with surrounding areas shall be allotted to the above defendants. Defendants 10 to 16 were found to be liable to pay mesne profits to the other sharers, the quantum of which was **A.S.NO.13/1995 (G) & CROSS OBJECTIONS** **8** directed to be determined in the final decree proceedings. Allowing the parties to move for passing a final decree, a further direction was made that in such proceedings a commission shall be deputed for effecting physical partition of the property and also to assess the quantum of mesne profits. Preliminary decree passed as indicated above is challenged in the appeal by appellants/defendants 10 to 16, and to the extent the decree directs exclusion of residential building situate in the plaint property from partition, and, for providing it to defendants 10 to 16, the plaintiffs in the suit have filed the cross objections. 9. I heard the counsel on both sides. Learned counsel for appellants Sri.M.Gopikrishnan Nambiar relying on Ext.B1 certified copy of final decree in the previous suit and Ext.B2 certified copy of delivery account, particularly, with reference to endorsement made by 1[st] plaintiff and his sister as witnesses, argued that physical possession of property through court was obtained by 1[st] defendant, and ever since asserting his exclusive title and possession, he dealt with that property as its absolute **A.S.NO.13/1995 (G) & 9 CROSS OBJECTIONS** owner. Whatever be the reservation made in the preliminary decree, Ext.A2, recognising the leasehold enjoyed by Cheriyamma and her children, when it was not taken into account or given expression to in the final decree (Ext.B1) that cannot be canvassed to nullify the legal effect over the delivery of property taken by 1[st] defendant under Ext.B2, is the submission of counsel. Subsequent dealings over the property by 1[st] defendant as evidenced by Ext.B7 lease deed executed in favour of his wife negating the rights of plaintiffs and others and also Ext.B31 purchase certificate issued in favour of 10[th] defendant by the Land Tribunal recognising her as a cultivating tenant over the plaint property clearly establish that plaintiffs and other defendants have no right over the plaint property after the passing of final decree (Ext.B1) in the previous suit whereunder it was allotted in the share account of the 1[st] defendant and, subsequently, delivery was taken by him through court and that being acknowledged by 1[st] defendant and his sister. Learned counsel relied on **Sankara Pillai v. State (1972 KLT 154)** to contend that where in a court delivery a **A.S.NO.13/1995 (G) & 10 CROSS OBJECTIONS** property is placed in the hands of a person to whom delivery is given that will hold good against the whole world. Referring to Ext.A3 (Ext.B1 final decree in the previous suit), particularly, clause 7 thereunder, learned counsel stated that item No.3 referred thereunder had been allotted to the 9[th] defendant (the 1[st] defendant in the present suit) and that property had been taken possession by him under Ext.B2 delivery account. Even if that allotment of share made in favour of the 9[th] defendant in the previous suit, (1[st] defendant in the present suit) under the final decree was not in accordance with the preliminary decree whereunder reservation of that property in favour of lessees in common was made, still, the allotment made in Ext.A3 final decree (Ext.B1) cannot be impeached or challenged in a separate suit, is the submission of counsel relying on **Papu Khan v. Fatima Babi and others (AIR 1973 Orissa 235)** . Learned Sub Judge without considering the binding force over the allotment of shares made in the final decree (Ext.A3) and the legal effect of Ext.B2 delivery account, and also ignoring the subsequent dealings over the property by 1[st] defendant and later **A.S.NO.13/1995 (G) & 11 CROSS OBJECTIONS** by 10[th] defendant as its absolute owner, and Ext.B31 purchase certificate issued by the Land Tribunal in favour of the 10[th] defendant, has erroneously held that the property is still partible and the plaintiffs and other defendants are entitled to separate shares in such property. Preliminary decree passed by the court below is unsustainable under law and it is liable to be set aside, is the submission of learned counsel. 10. Per contra, learned counsel for the contesting respondents/plaintiffs Sri.B.Krishnan contended that Ext.B2 delivery account would only have the effect of delivery of symbolic possession and such delivery was obtained by 1[st] defendant from the Amin would not make any difference. Relying on **Venkata Reddy and others v. Pethi Reddy (AIR 1963 SC 992),** learned counsel argued that so far as the rights of parties in a suit for partition the decision rendered by preliminary decree is final. Finality attached to that decision does not depend upon its executability nor on the final decree which is subsequently passed, is the submission of the counsel. **A.S.NO.13/1995 (G) & 12 CROSS OBJECTIONS** Learned counsel also relied on **G.Gulam Rasool v. G.Jawahar Beegum & another (1989 (2) KLJ 72)** to contend that so far as the parties in a suit for partition are concerned, the decision rendered in the preliminary decree is final and unalterable except by resorting to the provisions of the Code of Civil Procedure, for short, the 'Code', permitting its reversal, modification or amendment. Final decree does not make mention of the reservation made in the preliminary decree and the property was allotted in the account of one sharer would not confer on him better right than what has been decided and provided under the preliminary decree, is the submission of the counsel. So much so, where under the preliminary decree leasehold rights of Cheriyamma and her three children over plaint property is recognised and it was directed to be kept in tact, in the final decree passed later that property was included in the share of 9[th] defendant, 1[st] defendant in the present suit, and delivery was taken by him under Ext.B2, which has the effect of only delivery of symbolic possession, according to counsel, would no way affect the right of other lessees to claim **A.S.NO.13/1995 (G) & 13 CROSS OBJECTIONS** partition of such property in accordance with their shares. Disparity over the extent of land under the share account in Ext.A3 final decree with respect to share allotted to 9[th] defendant, the present 1[st] defendant, and also the present plaintiffs, who were also parties in the previous suit, is also pointed out by the counsel stating that when 70 cents alone was granted to a group consisting of six sharers, plaint property having an extent of 1 acre 24 cents with another item was allotted to another sharer - the 1[st] defendant. That shows the gross inequitable nature in which share allotment was made under the final decree not in tune with the preliminary decree in the suit is the submission of the counsel. So far as the transactions over the property by 1[st] defendant and later by his wife and also issue of purchase certificate (Ext.B31) of the Land Tribunal in favour of the 10[th] defendant, since plaintiffs are not parties to such proceedings, such transactions/orders are not binding on them is the submission of counsel contending that it will not affect their right to claim partition of their shares in the property. **A.S.NO.13/1995 (G) & 14 CROSS OBJECTIONS** 11. On the submissions made by the counsel on both sides with reference to the challenges canvassed over the preliminary decree passed in the suit for partition by learned Sub Judge, I find, the cardinal questions emerging for consideration are thus: (i) In a preliminary decree passed in a suit for partition if reservation was made over one of the items recognising leasehold right of some of the parties in common to exclude it from division, and, later, a final decree was passed without reference to such reservation, including that item of property in the share account of one among the above parties, and, delivery of that item followed in execution, how far that would affect or impair the right of others in whose favour too the leasehold was set apart under the preliminary decree to claim share in that property ? (ii) What, if any, is the effect of various transactions over the plaint property by the 1[st] defendant and later by the 10[th] defendant, and also the impact of Ext.B31 purchase certificate issued by the Land Tribunal over the plaint item, in the claim for partition canvassed by plaintiffs and defendants other than 10 to 16 in the suit; and, has the plea of ouster and adverse possession set forth by defendants 10 to 16 been examined and decided correctly by the court below in accordance with law ? **A.S.NO.13/1995 (G) & 15 CROSS OBJECTIONS** (iii) Whether the reservation made in preliminary decree that the residential building and surrounding area in plaint item No.1 are to be allotted to defendants 10 to 16 and the said building is not available for partition proper and correct ? 12. So far as the first and third questions framed as above, I find, controversy emerging on the rival case set up by the parties lie within a very narrow compass. True, an answer to the third question to some extent depends upon the finding to be entered on question No.2 and if so adverse to the appellants. In the first question posed as above, issue is only over the impact of inclusion of plaint property in the share account of 1[st] defendant in Ext.A3 suit, wherein he was the 9[th] defendant, and subsequent delivery taken by him under Ext.B2 delivery account. Learned counsel for appellants has argued before me that though the final decree (Ext.A3) had been passed without taking note of the reservation in Ext.A2 preliminary decree, still, the decision in the final decree has to be given effect to. On the contrary, learned counsel for the contesting **A.S.NO.13/1995 (G) & 16 CROSS OBJECTIONS** respondents/plaintiffs has urged that the decision in the preliminary decree is final and inclusion of plaint property in the share account of 1[st] defendant in the previous suit and delivery taken later under Ext.B3 cannot be given any effect. The crucial question arising on rival submissions made by counsel over the impact of preliminary decree, and also of the final decree passed in Ext.A3 suit, has to be examined and appreciated taking note that decision in the preliminary decree over the rights of parties is final, and, that where a final decree is not passed in consonance with preliminary decree its finality and conclusiveness cannot be impeached in a different proceedings or suit, but, only in the manner provided for correcting or amending or setting aside such final decree in terms of the provisions of the Code. But, I find, in the present case, the questions posed by the counsel on both sides at the most has got only academic value, and not at all decisive. 13. Ext.A1 lease deed in favour of Cheriyamma and her three children was executed jointly by the then karanavan, **A.S.NO.13/1995 (G) & 17 CROSS OBJECTIONS** namely, Koman Nair, with next senior most two junior male members (Anantharavans) of the tharwad. A reading of Ext.A1 would show that Cheriyamma was the sister of second executant, and niece (anantharaval) of the karanavan. A portion of the property covered by that document, it is stated, had already been demised under an oral lease in favour of Cheriyamma with annual rent fixed at Rs.30/-. Terms of Ext.A1 deed would indicate that on previous permission given orally Cheriyamma constructed a building in a portion of the property. Over rest of the property fixing an annual rent of Rs.30/-, and, allowing adjustment of that rent for her sustenance and that of her children, with liability to pay the revenue charges and also to surrender the leasehold on compensation paid by tharwad for improvements effected over the property, Ext.A1 lease was made in favour of Cheriyamma and her three children. When tharwad was partitioned in Ext.A3 suit recognising the leasehold rights conferred on Cheriyamma and her children under Ext.A1 deed, under the preliminary decree passed the leasehold property was kept in common in favour of the lessees. When final decree was **A.S.NO.13/1995 (G) & 18 CROSS OBJECTIONS** passed in Ext.A3 suit, leasehold property was included in the share account of 1[st] defendant in that suit, who was the son of Cheriyamma, without taking note of the reservation made in preliminary decree and, later, under Ext.B2 delivery account, he got delivery of the property and dealt with such property as its full owner denying the rights, if any, of other sharers, is the case canvassed by his successors in interest, defendants 10 to 16 in the present suit. What is to be noticed is that after passing of the preliminary decree Cheriyamma had passed away, and on her death, the 1[st] defendant, her son, presumably became the karanavan of her family. So much so, the inclusion of the leasehold in his share account was not overlooking or in violation of the reservation in the preliminary decree, but, only as per the law then applicable to a joint family when the leasehold rights enjoyed by the lessees in common remained joint and undivided. So much so, the inclusion of the present plaint property, the leasehold, in favour of 9[th] defendant in Ext.A3 suit (present 1[st] defendant) who then became karanavan of his family and delivery taken by him under Ext.B2 delivery account in execution **A.S.NO.13/1995 (G) & 19 CROSS OBJECTIONS** of final decree no way would enable him or his successors in interest to contend that the final decree passed and delivery taken was adverse to the interests of other members of his family who along with him then enjoyed joint leasehold right over the property. Further more, when the plaint property as a leasehold continued to be enjoyed jointly by 9[th] defendant with other children of Cheriayamma delivery of property obtained in execution of the final decree in the suit under Ext.B2 delivery account can have only the effect of conferring symbolical possession. The 1[st] plaintiff in the present suit and his sister were attestors to Ext.B2 delivery account would no way affect their rights over the plaint property. When that be the case, the only question that requires to be thrashed out in the suit is the claim of title by adverse possession and ouster set up by defendants 10 to 16, successors in interest of the 1[st] defendant in the suit (9[th] defendant in Ext.A3 suit). If that is found against then the share due to the parties in the plaint property, would arise for consideration to pass a preliminary decree in the suit. **A.S.NO.13/1995 (G) & 20 CROSS OBJECTIONS** 14. Various transactions effected by 1[st] defendant and later by his wife, 10[th] defendant, and issue of Ext.B31 purchase certificate by the Land Tribunal in favour of 10[th] defendant, have been relied by them to substantiate the plea of adverse possession to dispute the right, title and interest of plaintiffs and other defendants over the plaint property. The court below has raised an issue over that dispute thus: (5) Whether the right, if any of the plaintiffs and defendants 2 to 9 are lost by adverse possession and limitation ? In fact, not mere adverse possession and limitation, but, ouster as such must be established by defendants 10 to 16 to deny the right, title and interests of plaintiffs and other defendants when they are shown to be having co-ownership rights in the plaint property. Other than making reference to Exts.B9 and B29 documents and also some decisions, learned Sub Judge has not considered whether the rights claimed by plaintiffs and other defendants over plaint property are barred by ouster and **A.S.NO.13/1995 (G) & 21 CROSS OBJECTIONS** limitation. In fact issue No.5 has been decided on the basis of finding entered in issue No.3 whether plaintiffs and defendants are in joint possession of the property as alleged. Learned Sub Judge has held that parties in the suit are in joint possession on the basis of preliminary decree passed in the earlier suit and also its legal impact and not taking into account the various transactions over the property as evidenced by documents produced, all of them after passing of final decree in the previous suit. I find that in the facts and circumstances presented in the case plea of adverse possession and limitation canvassed by defendants 10 to 16 has to be re-examined with reference to the documentary materials tendered. The finding made by the court below that parties are in joint possession shall not be treated as conclusive, though it could be so at the time of passing of final decree in Ext.A3 suit and also when Ext.B2 delivery account was taken. Whether such joint possession over the property by the sharers continued thereafter, or was there ouster of rights of other sharers by 1[st] defendant and later by his successors, defendants 10 to 16, and if so, from what point of time and have **A.S.NO.13/1995 (G) & 22 CROSS OBJECTIONS** they prescribed title by adverse possession and limitation over the plaint property has necessarily to be examined with reference to the documents produced and also on facts and circumstances involved in the case. So much so, with the clarification that finding on issue No.3 entered by court below shall be understood and given effect to only in the lines indicated above, issue No.5 cast in the suit has to be reconsidered and fresh finding thereof has to be made to decide whether the plaintiffs and defendants, other than defendants 10 to 16, have any subsisting right to claim partition of the plaint property. 15. After passing of final decree in the previous suit, O.S.No.81/52, in which, under preliminary decree leasehold right of Cheriyamma and her three children was recognised to exclude present plaint property from partition, in view of personal law applicable to parties (marumakkathayam law) members in the thavazhi of Cheriyamma continued as joint tenants of that property. So much so, when was the death of Krishnan Nair, son of Cheriyamma, whether it was before or **A.S.NO.13/1995 (G) & 23 CROSS OBJECTIONS** after the Hindu Succession Act, 1956, and what would be the share due to the members of that thavazhi in the plaint property as and when the Kerala Joint Hindu Family System (Abolition) Act, 1975, came into operation may also require to be taken into consideration in case suit property is found partible for fixing the shares of parties for passing a preliminary decree. However, such exercise would arise only on the finding to be made over the claim of title by adverse possession by defendants 10 to 16 disputing the partibility of property. I have adverted to the above aspect only to point out that the parties are to be provided one more opportunity to lead evidence on the matters referred to above, to enable the court to adjudicate the issues arising thereof. However, I make it clear opportunity provided to parties to lead evidence should be confined to issue No.5 cast in the suit and also on matters touching upon the fixation of shares of parties in case plea of adverse possession and ouster raised by defendants 10 to 16 is found to be unsustainable, for passing an effective preliminary decree in the suit. **A.S.NO.13/1995 (G) & 24 CROSS OBJECTIONS** 16. In the light of the discussion made above, the cross objections filed by the plaintiffs do not require serious consideration at this stage as the preliminary decree passed is liable to be set aside for passing decree afresh. However, there appears to be no serious dispute that the building was put up by 1[st] defendant predecessor of the appellants after culmination of proceedings in Ext.A3 suit. So, it is open to the court below while passing a preliminary decree for issuing appropriate directions/orders over the allotment of the building without ascertainment of valuation thereof to defendants 10 to 16 in case the property is found partible. However, there could be no question of exclusion of the building and surrounding area if the property is otherwise found partible as among the sharers. No doubt, that is a matter to be considered at the time of passing a preliminary decree afresh having regard to the equities involved, by the court below. 17. Appeal and Cross objections are disposed of setting aside the preliminary decree and remitting the case for **A.S.NO.13/1995 (G) & 25 CROSS OBJECTIONS** considering issue No.5 cast in the suit and such other matters referred to in this judgment, taking note of the observations made and in accordance with law. Parties are directed to suffer their costs in the appeal and cross objections. Parties are directed to appear before the court below on 03.06.2013. Suit shall be given top priority for hearing and every endeavour shall be made to dispose it expeditiously, at any rate, within six months from the date fixed for appearance of the parties. ## **S.S.SATHEESACHANDRAN JUDGE** prp ## **S.S.SATHEESACHANDRAN, J.** **-------------------------------** **A.S.NO.13 OF 1995 (G) & CROSS OBJECTIONS -----------------------------------** **J U D G M E N T** **2[nd] day of April, 2013**