Jayasree, Jayaprakash & Ratheesh v. Radha and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM ``` ``` TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ``` RSA NO. 378 OF 2024 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 22.07.2023 IN AS NO.34 OF 2017 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL COURT, CHAVAKKAD ARISING OUT OF THE ORDER/JUDGMENT DATED 21.07.2017 IN OS NO.50 OF 2008 OF MUNSIFF COURT,CHAVAKKAD ``` ## **`APPELLANTS/DEFENDANTS 7, 8 & 10:`** ``` 1JAYASREE AGED 51 YEARS D/O. KAMALAKSHI AMMA, NJARENGATTU HOUSE, CHOWANNUR VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR, PIN - 680517 2JAYAPRAKASH AGED 49 YEARS S/O. KAMALAKSHI AMMA NJARENGATTU HOUSE, CHOWANNUR VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR - ., PIN - 680517 3RATHEESH AGED 40 YEARS S/O. KAMALAKSHI AMMA NJARENGATTU HOUSE, CHOWANNUR VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN – 680517 ``` ``` BY ADVS. K.B.GANGESH SMITHA CHATHANARAMBATH ATHIRA A.MENON HARISANKAR.K.V. ``` ``` RSA NO. 378 OF 2024 ``` ``` 2 ``` ## **`RESPONDENT/PLAINTIFF 2 TO 12,14 TO 20 AND DEFENDANTS 1 TO 6,9 AND 11 TO 14 & SUPPLEMENTARY RESPONDENTS:`** ``` 1RADHA AGED 69 YEARS D/O. PARUKKUTTYAMMA MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 ``` - **`2 SASIDARAN AGED 55 YEARS S/O. RADHA MANGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR, PIN - 680516`** ``` 3SUDHAKARAN AGED 50 YEARS S/O. RADHA MANGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 4SUNILKUMAR AGED 46 YEARS S/O. RADHA MANGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 5DAKSHYANIAMMA AGED 55 YEARS D/O. PARUKKUTTYAMMA MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 6SARALA AGED 60 YEARS D/O. DAKSHAYANIAMMA ``` ``` RSA NO. 378 OF 2024 ``` ``` 3 ``` ``` MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 7SUMATHI AGED 56 YEARS D/O. DAKSHAYANIAMMA MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 8SADANATHAN AGED 60 YEARS S/O. DAKSHAYANIAMMA MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 9SUKUMARAN AGED 63 YEARS S/O. DAKSHAYANIAMMA MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 10GOPALAKRISHNAN AGED 65 YEARS S/O. PARUKKUTTYAMMA MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 11RAJAN AGED 64 YEARS S/O. PARUKKUTTYAMMA MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 12BALAKRISHANAN NAIR AGED 75 YEARS ``` ``` RSA NO. 378 OF 2024 ``` ``` 4 ``` ``` S/O. KRISHNANKUTTY NAIR MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 13RAVEENDRAN NAIR S/O. NARAYANAN NAIR PADINJAROTT HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 14DAKSHAYANI AMMA AGED 75 YEARS W/O. MAGALATH VALAPPIL NARAYANAN NAIR, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR - 680516 PRESENTLY RESIDING AT NO. J78 ANJANEYA BLOCK SESHARIPURAM, BANGALORE -, PIN - 560020 15SARALA AGED 60 YEARS D/O. NARAYANAN PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 16SUMATHI AGED 58 YEARS D/O. MAGALATH VALAPPIL NARAYANAN NAIR, NO. J78 ANJANEYA BLOCK SESHARIPURAM, BANGALORE -, PIN - 560020 17SADANANDHAN M, AGED 54 YEARS S/O. MAGALATH VALAPPIL NARAYANAN NAIR, NO. J78 ANJANEYA BLOCK SESHARIPURAM, BANGALORE -, PIN - 560020 ``` ``` RSA NO. 378 OF 2024 ``` ``` 5 ``` ``` 18SUKUMARAN M AGED 52 YEARS S/O. MAGALATH VALAPPIL NARAYANAN NAIR, NO. J78 ANJANEYA BLOCK SESHARIPURAM, BANGALORE -, PIN - 560020 19PADMAVATHI AMMA AGED 87 YEARS D/O. MAGALATH VALAPPIL LAKSHIMIKUTTY AMMA, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 20VALSALA AGED 55 YEARS D/O. PADMAVADI AMMA MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 21SAVITHRI(DIED) AGED 54 YEARS W/O. GOPALAKRISHNAN ARAYAMPARAMBATH HOUSE, PARAPPUR P.O MULLOOR, THRISSUR -, PIN - 680552 22GEETHA W/O. PULITHAILAYIL MURALI MARATHOMKODU P.O, VELLITHIRUTHI THRISSUR -, PIN - 676616 23SOBHA AGED 47 YEARS W/O KUNNATHEL SURESH KUMAR @ BABU PUNNAYURKKULAM P.O, THRISSUR -, PIN – 676616 ``` ``` RSA NO. 378 OF 2024 ``` ``` 6 ``` ``` 24NJARENGATT KAMALAKSHIAMMA AGED 75 YEARS W/O. MAGALATH VALAPPIL RAMAN NAIR, CHOWANNUR VILLAGE, DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680617 25RAJALEKSHMI AGED 47 YEARS D/O. KAMALAKSHIAMMA NJARENGATT HOUSE, CHOWANNUR VILLAGE, DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680617 26LATHA AGED 47 YEARS W/O. NARAYANAN MADAMBATH HOUSE, CHALISSERY TALUK, VILLAGE PATTISSERY DESOM, OTTAPPALAM TALUK PALAKKAD -, PIN - 679536 27SREEDEVI AMMA AGED 83 YEARS W/O. KRISHNAN NAIR MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 28VIDHU BALA D/O. KRISHNAN NAIR, MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE, DESOM, TALAPPILLY TALUK, THRISSUR -, PIN - 680516 29VINOD S/O. KRISHNAN NAIR, MAGALATH VALAPPIL HOUSE, PERUMBILAVE VILLAGE, DESOM, ``` ``` RSA NO. 378 OF 2024 ``` ``` 7 ``` ``` TALAPPILLY TALUK, THRISSUR -, PIN - 680516 ``` ``` 30GOPIKA AGED 29 YEARS D/O. ARAYAMPARAMBATH GOPALAKRISHNAN & SAVITHRY, PARAPPUR P.O MULLOOR, THRISSUR -, PIN - 680551 31SREEJITH AGED 25 YEARS S/O. ARAYAMPARAMBATH GOPALAKRISHNAN & SAVITHRY, PARAPPUR P.O MULLOOR, THRISSUR -, PIN - 680551 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 378 OF 2024 ``` ``` 8 ``` ## JUDGMENT 1. The defendants 7, 8 and 10 in a suit for partition have filed this Regular Second Appeal. The parties are referred according to their status before the Trial Court. 2. The plaintiffs filed the suit for partition of plaint schedule properties claiming that the plaint schedule properties are set apart to the Thavazhi (Branch) of the plaintiffs and the defendants as per Ext.A1 Partition Deed of 3003/1088 M.E of Kunnamkulam SRO and are liable to be partitioned among the plaintiffs and the defendants who are co-owners of the said properties. 3. The defendants 6 to 10 contested the suit raising an independent right over two items of properties having extent of 25 Cents and 45 cents covered by Ext.B2 Purchase Certificate No.1430/1977 from Mullassery Land Tribunal which is obtained by the Raman Nair, who ``` RSA NO. 378 OF 2024 ``` ``` 9 ``` is their predecessor . 4. The Trial Court rejected the independent right claimed by - the defendants 6 to 10 and passed Preliminary decree for partition of the plaint schedule properties among the plaintiffs and the defendants. Though the defendants 7, 8 and 10 filed appeal before the First Appellate Court, the same was also dismissed confirming the judgment and decree of the First Appellate Court. 5. This Regular Second Appeal is filed against the concurrent findings of the Trial Court as well as the First Appellate Court. 6. I heard the learned counsel for the appellant Sri. Gangesh P.B. 7. The learned counsel for the appellant submitted that the plaintiffs have not challenged Ext.B2 purchase certificate. Ext.B2 Purchase Certificate is of the year 1977. According to him, if the plaintiffs had any grievance ``` RSA NO. 378 OF 2024 ``` ``` 10 ``` against Ext.B2 Purchase Certificate, they ought to have challenged the same in appropriate proceedings. According to him so long as Ext. B2 Purchase Certificate subsists, the Trial Court as well as the Appellate Court ought to have excluded the property covered by the said Purchase Certificate from the properties found to be partible. 8. From the impugned judgments, it is clear that the Raman Nair who is the predecessor of defendants 6 to 10 is one of the members of the same Thavazhy. He is claiming right through one Govindan Nair and on the basis of the such claim he obtained Ext.B2 Purchase Certificate. No documents were produced by the defendants 6 to 10 to prove that how the said property belonged to Govindan Nair. The Trial Court found that the property covered by Ext.B2 Purchase Certificate is part of the property covered by Ext.A1 Partition Deed. On the other hand, the ``` 11 ``` ``` RSA NO. 378 OF 2024 ``` First Appellate Court found that it is not clear whether Ext.B2 property is included in Ext. A1 Partition Deed. Whatever that may be, when the defendants 6 to 10 claims independent right through one Govindan Nair the defendants 6 to 10 should have adduced evidence to show that Govindan Nair had title over the property. 9. It is seen from Ext. A1 document of the year 1088 M.E that Thrippalassery Devaswom is the jenmy(landlord) of the property. If Thrippalassery Devaswom is the jenmy, Thrippalassery Devaswom and Taravadu of the plaintiffs and the defendants should have been impleaded as landlord and intermediary in Ext.B2 proceedings. There is specific findings entered into by the Trial Court that there is no evidence that the title holder or intermediary was impleaded in the Land Tribunal proceedings. Hence the Trial Court as well as the Appellate Court rightly discarded the claim on the basis of Ext.B2 purchase ``` RSA NO. 378 OF 2024 ``` ``` 12 ``` certificate. 10. The learned counsel for the appellant cited the decision of this Court in _**Thayukutty v. Manikandan**_ [2023 KHC 886] and contented that remedy of the person aggrieved by a purchase certificate is to file an appeal before the Appellate Tribunal as provided under the Kerala Land Reforms Act. But in Paragraph 21 of the very same decision it is held that when the purchase certificate is inaccurate on its face, or obtained by fraud, the evidentiary value of the Purchase certificate could not be disregarded and that doubtlessly, a purchase certificate shall not bind a party, who is not a party to the proceedings before the Land Tribunal having better title of the property covered by the purchase certificate. In view of the aforesaid findings in the said decision, the said decision is not applicable to the facts and circumstances of the case as neither the Thrippalassery ``` 13 ``` ``` RSA NO. 378 OF 2024 ``` Devaswam nor Tharavadu of the plaintiffs and the defendants were impleaded in the Land Tribunal proceedings. I do not find any illegality in the judgments passed by the Trial Court as well as the Appellate Court. 11. Accordingly the Regular Second Appeal is dismissed. ## **Sd/-** M.A.ABDUL HAKHIM JUDGE sms