# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE SATHISH NINAN**
**THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944 RSA NO. 278 OF 2007**
**AGAINST THE COMMON JUDGMENT AND DECREE IN A.S 254/2003 &**
**1/2004 OF IIND ADDITIONAL SUB COURT, KOZHIKODE IN OS 320/1998 OF II ADDITIONAL MUNSIFF COURT, KOZHIKODE**
## **APPELLANT IN RSA–RESPONDENT NO.1 IN A.S/PLAINTIFF IN O.S**
MANIKKOTH SARASWATHY, AGED 66,D/O.APPU, KATTAMBIL HOUSE, PANNAYOORKULAM (P.O), KADIKKAD AMSOM, DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.J.MATHEW SRI.P.B.KRISHNAN
## **RESPONDENTS IN RSA:**
- 1 MANIKKOTH CHANDRAN, AGED 61 YEARS, S/O APPU, CHANDAI NIVAS, CIVIL STATION (P.O), NEDUNGATTOOR AMSOM, DESOM, KOZHIKODE TALUK.
- 2 MANIKKOTH VALSAN, AGED 64, S/O APPU, 'VENUS', EARAMMEL ROAD, CALICUT - 9, NEDUNGATTOOR AMSOM, DESOM, KOZHIKODE TALUK.
- 3 MANIKKTOH MOHANDAS, AGED 52, S/O APPU, 'MANIKKOTH', KARAPARAMBA P.O., NEDUNGATTOOR AMSOM, DESOM, KOZHIKODE TALUK, CALICUT - 10.
- 4 MANIKKOTH SWARANAKUMARI, D/O APPU,'RAJASREE', MALAPARAMBA P.O., NEDUNGATTOOR AMSOM, DESOM, KOZHIKODE TALUK, CALICUT - 10.
- 5 JANU, D/O MANNARAKKAL MALUKUTTY,MANDADIPOYIL THAZHAM VAYAL, CIVIL STATION (P.O), NEDUNGATTOOR AMSOM, DESOM, KOZHIKODE TALUK, CALICUT - 10.
- 6 VASANTHA, D/O MANNARAKKAL MALUKUTTY,MANDADIPOYIL THAZHAM VAYAL, CIVIL STATION (P.O), NEDUNGATTOOR AMSOM, DESOM, KOZHIKODE TALUK, CALICUT - 10.
- 7 NIRMALA, D/O MANNARAKKAL MALUKUTTY,MANDADIPOYIL THAZHAM VAYAL, CIVIL STATION (P.O), NEDUNGATTOOR AMSOM, DESOM, KOZHIKODE TALUK, CALICUT - 10.
- 8 VINODINI, D/O MANNARAKKAL MALUKUTTY,MANDADIPOYIL THAZHAM VAYAL, CIVIL STATION (P.O), NEDUNGATTOOR AMSOM, DESOM, KOZHIKODE TALUK, CALICUT - 10.
- 9 RAJANI, W/O JAYANANDAN, MANDADIPOYIL THAZHAM VAYAL, CIVIL STATION (P.O), NEDUNGATTOOR AMSOM, DESOM,
**RSA NO. 278 OF 2007**
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KOZHIKODE TALUK, CALICUT - 10. 10 JISHINA, D/O JAYANANDAN(MINOR),MANDADIPOYIL THAZHAM VAYAL, CIVIL STATION (P.O), NEDUNGATTOOR AMSOM, DESOM, KOZHIKODE TALUK, CALICUT - 10., REPRESENTED BY APPELLANT NO.9, MOTHER 11 JITHIN, S/O JAYANANDAN (MINOR),MANDADIPOYIL THAZHAM VAYAL, CIVIL STATION (PO), NEDUNGATTOOR AMSOM, DESOM, KOZHIKODE TALUK, CALICUT - 10. REPRESENTED BY APPELLANT NO.9, MOTHER BY ADVS. SRI.T.SETHUMADHAVAN (SR.) FOR R1 SMT.DEEPA NARAYANAN FOR R1 SMT.PREETHI P.V FOR R1 SRI.M.V.BALAGOPAL FOR R1 SRI.V.V. SURENDRAN FOR R9 TO R11 SRI.P.A.HARISH FOR R9 TO R11 SRI.AJITH GEORGE FOR R4
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **Sathish Ninan, J.**
**============================== R.S.A No.278 of 2007 ========================== Dated this the 20[th] day of October, 2022**
## **JUDGMENT**
The suit for partition, though decreed by the trial court, was dismissed in appeal. Aggrieved thereby, the plaintiff is in appeal.
2. The plaintiff and 4[th ] defendant are the sisters of defendants 1 to 3. They are the children of one Appu. According to the plaintiff, the property belonged in 'jenmom' to one Karamvally Swaroompam. The property was outstanding on 'kanom' with one Narath Appu Nair. In the year 1961, plaintiff's father-Appu took the property on lease. On the death of the plaintiff's father - Appu and their mother Karthiayani Amma, the property devolved on the plaintiff and defendants 1 to 4 in equal shares. It is accordingly that the suit for partition has been filed.
3. The 2[nd] defendant opposed the prayer for partition. It was contended that, the lease taken by the father-Appu in the year 1961 was, for and on behalf of the 2[nd] defendant who was then a minor. He became major
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in the year 1963. Thereafter he had entered into lease arrangement with the jenmi. Thus, the property belongs exclusively to him. Accordingly, it was prayed that the suit be dismissed.
4. The trial court found that, Appu-father of the parties, was the lessee, and that, on the death of the father and mother, the property vested with the children in equal shares. The first appellate court held that the materials on record reveal that, the right over the property vested with the 2[nd] defendant, and accordingly dismissed the suit.
5. Heard the learned senior counsel Sri.S.V Balakrishna Iyer on behalf of the appellant, and learned senior counsel Sri.Sethumadhavan and learned counsel Sri.P.A Harish on behalf of the respondents on the following substantial question of law:
“ _On the materials on record, was the first appellate court correct in its finding that it was the second defendant and not his father who was the lessee of the property?”_
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6. Sri.S.V.Balakrishna Iyer, learned senior counsel for the appellant would point out various circumstances to contend that father of the parties – Appu was the lessee of the property and not the 2[nd] defendant. The circumstances relied on mainly are, (i) That in the year 1961 when the lease was taken by Appu, the 2[nd] defendant was only a minor. There is no reason why lease should have been taken on behalf of the minor, (ii) There is no evidence to show that the 2[nd] defendant had entered into a lease arrangement with the jenmi after he became major. (iii) Admittedly the plaint schedule property is known by the name 'Manthayar Nilam'; however, the documents relied on by the 2[nd] defendant to establish his right over the property mentions the name of the property as 'Mandadi Poyil Nilam’.
7. It is not in dispute that, in the year 1961, when the property was taken on lease, the 2[nd] defendant was a minor. As contended by the learned senior counsel for the appellant, unless it is established that the lease was on behalf of the minor or that on becoming
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major the 2[nd] defendant had entered into lease arrangement with the jenmi, the normal presumption would be that, Appu – the father was the lessee of the property. Therefore, what needs to considered is whether the circumstances and materials on record indicate that the 2[nd] defendant was the lessee of the property.
8. The 2[nd] defendant contended that, one Malukutty, whose legal heirs are defendants 5 to 9, was a 'kudikidappukari' in a portion of the property. The kudikidappu right was purchased by her from the Land Tribunal in the proceedings in O.A No.1369 of 1971. The kudikidappu was subsequently shifted to the south eastern corner of the property. In those proceedings, the 2[nd] defendant was shown as the landlord. That atleast as on the date of the suit the kudikidappu is situated at the south eastern corner of the plaint schedule property is not disputed. Pertinently, the O.A proceeding was in the year 1971 and was during the life time of the father-Appu. Appu died only in the year 1985.
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9. The plaintiff would contend that, the O.A proceedings were in respect of another property under the name ‘Mandadi Poyil Thazha Nilam’ whereas, the plaint schedule property is admittedly known as ‘Manthayar Nilam’. While it is true that in the documents relating to the O.A proceedings the name of the property is shown as ‘Mandadi Poyil Thazha Nilam’, there is no case that the 2[nd] defendant held any other property in respect of which such proceedings could have been initiated. If it is related to any other property, evidence regarding other holding of 2[nd] defendant could have been brought in. Though the appellant would refer to the different survey sub division of the property in the O.A proceedings, it is seen that the same was subsequently corrected. The corrected survey sub division relates to the plaint schedule property. As regards the name of the property, according to the DW12[nd] defendant, the entire area where the plaint schedule property is situated is known by the name ‘Mandadi Poyil Thazha Nilam’. During cross-examination of PW1,
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suggestions in the said regard have been put to him. Ext B23, the commissioner's report in the final decree proceedings would indicate that the adjoining properties have the name ‘Mandadi Poyil’. As noticed above, nobody has a case that, the 2[nd] defendant has any other property in respect of which the O.A proceedings might have been initiated. The fact that, the kudikidappu is situated on the south-eastern corner of the plaint schedule property as per orders on the shifting application is also of significance.
10. S.M proceedings were initiated before the Land Tribunal as SMP No.387 of 1992 for assignment of the jenmom right over the plaint schedule in favour of the 2[nd] defendant. The appellant would rely on Ext A9, a statement filed by the 2[nd] defendant in the said proceedings, wherein, it is stated that the father took the property on lease. It is to be noticed that, the 2[nd] defendant had filed an application as Ext B16 in the said proceedings, to amend his statement, to incorporate a plea that the lease was, on his behalf. He sought to
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insert the words “F\n-¡v thïn”. Since the very proceedings were subsequently dropped as per the orders of this Court in O.P.10986/97, orders were not passed on that application. Ext B15 is the enquiry report in the S.M proceedings. Annexed to the same is a statement by the 2[nd] defendant in which he states that, the lease was taken by the father for and on behalf of the 2[nd] defendant. The said statement is prior in point of time to Ext A9 referred to above. Though the appellant would allege that the said statement was pre-dated, there is nothing to indicate the same. As noticed, it formed part of the enquiry report submitted by the authorised officer in the S.M proceedings. Exts A15 and A16 reports
in the S.M proceedings indicate that, though the property was originally held by Appu, it was later handed over to the 2[nd] defendant. Exts B7 and B8 Revenue Recovery notices proposing to proceed against the property were issued as against the 2[nd] defendant. Again, the proceedings were in the year 1982, during the life time of their father Appu. Ext B13 series tax
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receipts show that the 2[nd] defendant was paying tax for the property even during the life time of Appu. At the same time, there is total lack of any material to indicate that Appu was in possession of the property or was exercising any right over the same.
11. Ext B1 is a 'kanam' deed executed by the plaintiff in favour of the 2[nd] defendant in the year 1965. The said property was acquired by the plaintiff in the year 1961. At that time, she was only a student, aged 19 years. As PW1, she has admitted in her crossexamination that, the property covered under Ext B1 along with the plaint schedule property were being cultivated by the 2[nd] defendant even before execution of Ext B1 'kanam' deed. This would indicate that even at that age, when the 2[nd] defendant would have been a minor or would have hardly attained majority, he was dealing with the properties and was even cultivating the same. The above would also indicate that, Appu was in the habit of acquiring properties in the name of his children. It is so because, the plaintiff was aged only
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19 years and was a student while the property under Ext B1 was acquired in the name of the plaintiff. It is in evidence that the family of Appu was one of the richest families at that locality at that time. All these probabilise that the plaint schedule property would have been taken on lease by the father-Appu on behalf of the 2[nd] defendant, and on he becoming major, the lease was entrusted with the 2[nd] defendant.
12. On totality of the materials as above, the conclusion arrived at by the first appellate court that, the 2[nd] defendant was holding the right over the property as lessee is probable. The substantial question of law is answered accordingly.
13. The first appellate court has considered the entire materials in reaching its conclusion that the 2[nd] defendant was the lessee of the property. Even assuming that another view of the matter is possible, this Court cannot upset the findings of the first appellate court in the jurisdiction under Section 100 of the Code of Civil Procedure _**[Satya Gupta Alias Madhu Gupta v. Brijesh Kumar**_
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_**((1998) 6 SCC 423), Lisamma Antony and Another v. Karthiyayani and**_
_**Another ((2015) 11 SCC 782)]**_ .
Resultantly, the regular second appeal fails and is
accordingly dismissed.
Sd/-
**Sathish Ninan, Judge**
vdv
