Naroth Sathi & Naroth Devadas v. Chemmeri Kausu & others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 SA.No. 822 of 1998(F) --------------------AS.60/1996 of ADL.SUB COURT, THALASSERY OS.89/1990 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANT(S)/RESPONDENTS/PLAINTIFFS: ------------------------------------------------------------- 1. NAROTH SATHI, HOUSE NO.48, WARD NO.6, PAZHASSI AMSOM, MATTANNUR DESOM. 2. NAROTH DEVADAS -DO- BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENT(S)/APPELLANTS & RESPONDENTS 3 TO 5/DEFENDANTS: -------------------------------------------------------------------------------------------------- 1. CHEMMERI KAUSU, W/O. DECEASED RAMOOTTY, RESIDING AT THILLANKERI AMSOM, PALLIAM DESOM, THALASSERY TALUK. 2. DAUGHTER SANTHA -DO- 3. SISTER ROJA -DO- 4. BROTHER BINOJ -DO- 5. SISTER SHYMA, AGED 17 YEARS, - (MINOR) REPRESENTED BY GUARDIAN - 1ST RESPONDENT. 6. CHEROTTU DEVI, HOUSE NO.246, WARD NO.8, THILLANKERI AMSOM, PALLIAM DESOM. 7. NAKKAIO MADHAVAN, NADAMMEL, KAYAKKODI AMSOM, NADUVANNUR DESOM, TINTHOOR P.O. KOZHIKODE. 8. NAKKAI KRISHNAN, THILLANKERI AMSOM, PALLIAM DESOM. ADV.SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE FOR R1 TO R5 SRI.N.K.SUBRAMANIAN FOR R1 TO R5 SRI.N.SUKUMARAN FOR R6 SRI.SAJI VARGHESE FOR R6 SRI.S.SHYAM FOR R6 SRI.BOBBY MATHEW FOR R6 SRI. T.G.LELLULAL FOR R6 SRI.N.K.KARNIS FOR R6 SRI.PHILIP M. VARGHESE FOR R6 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD N 04/10/2011, THE COURT ON 24/10/2011 DELIVERED THE FOLLOWING: ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 822 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of October, 2011. ## **JUDGMENT** The plaintiffs in O.S.89 of 1990 before the Munsiff's Court, Kuthuparamba, which was a suit for partition are the appellants. 2. According to the plaintiffs, the property was acquired by Kannan as per a registered assignment deed namely Ext.A1 dated 5.7.1941. There were two items of property and he had put up buildings in both the items. The first defendant is his wife and he had a son by name Balan. The plaintiffs are the legal heirs of deceased Balan. Kannan died in the year 1948. On the death of Kannan the properties devolved in equal shares on the plaintiffs and the first defendant. Second defendant is a close relative of the first defendant and with the consent of the first defendant the second defendant has been 2 staying in the house in item No.2. The plaintiffs do not wish to continue the joint status and hence the suit. 3. The first defendant filed a written statement supporting the plaintiffs. 4. The second defendant resisted the suit. He denied that Kannan had any manner of right over item No.2 and that it belonged exclusively to the second defendant as per Ext.B9 dated 20.6.1956. There was a subsequent partition which is evidenced by Ext.B10 and item No.2 was allotted to the second defendant. Kannan had no manner of right over item No.2 and the same belonged exclusively to him. It appears that during the pendency of the suit the second defendant died and his legal heirs were brought on the party array as supplemental defendants 3 to 7. The supplemental defendants 3 to 7 filed an additional written statement wherein they disputed the right of Kannan over plaint item No.2 and they raised various contentions which are not very relevant for the present purpose. S.A.822/1998. 3 5. Based on the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1to A6(a) from the side of the plaintiffs. The defendants had examined D.Ws.1 to 10 and marked Exts. B1 to B30. On an appreciation of the evidence in the case, the trial court found that the plaintiffs had succeeded in establishing that both the items were partible and accordingly a preliminary decree was passed as follows: _“In the result, a preliminary decree for partition is passed dividing the two items of plaint schedule into 2 equal shares, and allotment of one such share to the plaintiffs. The other half share is allotted to 1[st] defendant. 1[st] defendant is liable for mesne profits. The cost shall come out of estate. The parties who paid separate court fee will be allotted their respective shares. Parties are at liberty to apply for final decree proceedings.”_ 6. Defendants 3 to 7 carried the matter in appeal as A.S.60 of 1996. The lower appellate court found that item S.A.822/1998. 4 No.2 did not belong to Kannan and it belonged to the second defendant as claimed by him and therefore that was not available for partition. Accordingly, the preliminary decree passed by the court below in respect of item No.2 was set aside. It is the said judgment and decree that are assailed in this appeal. 7. Notice is seen issued on the following questions of law: _“i) Whether the lower appellate court is right in law in reversing the preliminary decree for partition of item 2 of the plaint schedule when the defendants were occupying the house in item 2 on the basis of permission and the assignment deed relied on by the defendants will not confer any right as the assignor had no subsisting right over item 2 at the time of the alleged assignment._ _ii) When two items of properties are dealt with by the owner under the same document can it be said that with respect to one item the document is acted upon and with respect to the other item it is not acted upon._ 5 _iii) Whether the lower appellate court is right in law in reversing the judgment and decree of the trial court when the defendants have put forward inconsistent pleadings.”_ 8. Learned counsel appearing for the appellants drew the attention of this court to the fact that Ext.A1 is an admitted document. It takes in both items 1 and 2 of the plaint schedule. The case of the contesting defendants is that Ext.A1 in relation to item No.2 is a sham document and that item remained with the assignor under Ext.A1. Learned counsel pointed out that having assigned item Nos. 1 and 2, the assignor was left with no right over those items of properties and could not deal with them later unless it is shown that late Kannan to whom the properties were assigned as per Ext.A1 had surrendered both the items or either of the items. The lower appellate court, according to learned counsel, was greatly impressed with Exts. B23 and B25 which are two written statements filed by Raman in two suits wherein he did not dispute that item No.2 remained with him. It is significant to notice, according to learned S.A.822/1998. 6 counsel, that the plaintiffs are not parties to the suit and it cannot bind them. Learned counsel also pointed out that the purchase certificate on which considerable reliance is placed by the lower appellate court does not relate to the suit property. Even assuming it relates to the suit property, it cannot affect the rights of the plaintiffs since they are not parties to the proceedings in which the purchase certificate was issued. The survey number shown in the purchase certificate is different, but the lower appellate court was gracious enough, according to learned counsel, to treat it only as a mistake. There was no attempt from the side of defendants 3 to 7 to get the properties covered by Ext. B12 identified by the commissioner. They own properties near the plaint schedule property going by the commissioner's report. The trial court had found that the property covered by the purchase certificate is different. The lower appellate court shows that some boundaries stated in Ext.B12, which is the purchase certificate, resemble with the plaint description and that is sufficient to S.A.822/1998. 7 show that the purchase certificate takes in plaint item No.2. Learned counsel pointed out that there is total mis-appreciation of the evidence in the case and irrelevant factors have been taken note of and has omitted to take note of relevant factors which will clearly show that plaint item No.2 also belonged to Kannan. According to learned counsel, the judgment and decree of the lower appellate court are clearly unsustainable both on facts and in law. 9. Learned counsel appearing for the respondents on the other hand contended that the lower appellate court was correct in its approach and was right in holding that plaint schedule item No.2 did not belong to Kannan. The lower appellate court had placed reliance on Exts.B23 and B25, B12, B9 and B10 and had come to the conclusion that item No.2 belonged to the second defendant. According to the learned counsel, in case of conflict between the extent and boundary, the properties are to be identified with respect to the boundaries. Learned counsel also pointed out that purchase certificate obtained by the second defendant S.A.822/1998. 8 is conclusive of his right, title and possession over the property covered by the certificate. 10. After having heard learned counsel on both sides and having gone through the records and the evidence in the case, this court finds it difficult to accept the finding of the lower appellate court regarding item No.2. 11. Admittedly item No.2 is taken in by Ext.A1. Ext.A1 dated 5.7.1941 takes in two items of property. Ext.A1 is the assignment deed executed by Cherotta Raman in favour of Nakkai Kannan. Ext.A1 specifically states that possession of both the items has been given to Kannan. Being a registered document and as there is nothing to show that there is any reason why a false recital should be made, it will be presumed that the recital regarding handing over of possession made mention of in the document is correct. 12. Heavy reliance is seen placed by the lower appellate court on Exts.B23 and B25. There are two suits based on promissory note in which it is seen that charge was sought for in respect of properties which would appear 9 S.A.822/1998. to include item No.2 involved in this suit. The assignor of Ext.A1 did not deny that the property was not in his possession and did not contend that it was not available for being proceeded against. It is significant to notice that Exts.B23 and B25 did not contain survey number and boundaries. In Ext.A1 the description of item No.2 is shown as comprised in Sy. No.68/4, Re.Sy. No.107/2 ക�ഞ�എള�ബ പറ�ബ� Sy.No.69 corresponding to Re.Sy.107/1 ക�ഞ�എള�ബക�ട എന ജമ പപര�യ ക�ഞ�എള�ബ പറ�ബ�. In Ext.B23 there is no survey number and no boundaries. It shows four items of properties. Item No.2 is described as ക�ഞ�എ�ബ പറ�ബ�ല പ�ക� ഭ�ഗ� ഒര� ഖണ� പറ�ബ�. Item No.3 is described as പമപ�പപ�റ പറ�ബ�ല പ�പക അ�ശ� പറ�ബ�� ക�ഞ� പറ�ബ�� മറ�� പ"ര$��ല പപട മ&$പ� പപ�പറ�ട പറ�ബ� Ext. B25 contains identical description of the property which corresponds to item No.2 in the present suit. As already noticed, Exts.B23 and B25 contain no survey number and there is nothing to show that the property mentioned in those two documents is S.A.822/1998. 10 item No.2 of Ext.A1. 13. One may now refer to Exts. B8, B9 and B10 on which reliance is placed by the contesting defendants. Ext.B8 is dated 22.12.1953 which is an assignment deed by Raman to Kunhi Kannan and others. There is no reference in this document to item No.2 and nowhere it is stated in Ext.B8 that even though item No.2 in the present suit was assigned as per Ext.A1, possession continued with the assignor and possession was not handed over to Kannan. There is no recital at all that inspite of Ext.A1, the assignor under Ext.A1 continued to be in possession and enjoyment of item No.2. It is interesting to note the description of item No.2 in Ext.B8 document. Resurvey number is shown as 107/12 and the old Sy.No. is shown as 68/4. The description is ക�ഞ�എള�ബ പറ�ബ�ല പ�ക� ഭ�ഗ� ഒര� ഖണ� പറ�ബ�. In Ext.B9 item No.2 of the plaint schedule is shown as item No.6 and the description is the same as in Ext.B8. Ext.B10, by virtue of which the second defendant claims to have obtained rights over the property, contains the same description. S.A.822/1998. 11 Therefore, it can be seen that the description in Ext.A1 and Exts.B8 to B10 are different and the survey numbers are also different. 14. Now one may refer to Ext.B12 which is the proceedings in which purchase certificate is obtained by the second defendant. The purchase certificate shows that the survey number is entirely different as survey Number shown is 103/1. There is nothing to show that the survey number shown as 107/12 in Exts.B8, B9 and B10 and 103/1 in Ext.B12 is a mistake. The description of the property contained in Ext.A1 and Exts.B8 to B10 are also different. There was no attempt from the side of the contesting defendants to show that the property covered by Exts.B8, B9, B10 and B12 is item No.2 of Ext.A1. 15. It is also necessary to note that in Ext.B8 item No.1 is shown as comprised in Sy. No.101/3 and item No.2 is shown as comprised in Sy. No.107/12. In Ext.B9 these are respectively items 5 and 6. In Ext.B9 executants 1, 2, 4 and 8 are given A schedule. Both Exts.B8 and B9 contains the S.A.822/1998. 12 same survey number. Ext.B10 by which the second defendant claims to have obtained the property is comprised in Sy. No.107/12, the old survey number of which is shown as 68/4. It could thus be seen that there was no attempt from the contesting defendants to show that the property covered by Exts.B8, B9, B10 and B12 is the same as item No.2 to Ext.A1. One may recall here that the claim accepted by the lower appellate court was that the recital regarding item No.2 in Ext.A1 was sham. It is difficult to understand this contention. One fails to understand as to how part of the document can be sham. One may recall here that there is no recital in any of the documents relied on by the contesting defendants that the assignor under Ext.A1 had ever mentioned that item No.2 contained in Ext.A1 was not given possession of to Kannan or that the assignor retained it in possession and continued to enjoy the property inspite of the assignment made under Ext.A1. 16. The lower appellate court felt that the finding of the trial court that after the assignment of the property S.A.822/1998. 13 under Ext.A1, Raman, the assignor under Ext.A1 could not further assign the property cannot be accepted. The reason found out by the lower appellate court is that subsequently the assignor had stated that he is in possession of the property. In the light of the recital contained in Ext.A1 and since there is no contention that Ext.A1 has not taken effect and for the reasons already made mention of regarding Exts.B23 and B25, the finding of the lower appellate court that the claim made by the assignor after executing Ext.A1 that he had rights over item No.2 had to be given effect to is to say the least perverse. 17. Coming to Ext.B12, the purchase certificate obtained by the second defendant, learned counsel for the contesting respondents placed heavy reliance on the decision reported in **Muhammed Basheer v. State of Kerala** (2002(1) K.L.T. SN 4). According to the learned counsel, purchase certificate issued under Section 72K of the Kerala Land Reforms Act is conclusive of the fact that the right, title and interest in respect of the property covered by 14 S.A.822/1998. the certificate has been assigned in favour of the holder of the certificate. It is also contended that he will be deemed to be in possession of the property. 18. The contention would have had much force, had it been shown that the property taken in by Ext.B12 is the same as item No.2 to Ext.A1. But the survey number shown in Ext.B12 is 101/3 and the boundaries do not tally. The lower appellate court very casually observes that survey number shown in Ext.B12 might have been a mistake and jumps to the conclusion that it takes in the same property as item No.2 of Ext.A1. Without convincing materials to show that the survey number shown in Ext.B12 is only a mistake, and also that without assuring that the property covered by Ext.B12 is the plaint schedule property, the lower appellate court ought not to have upset the finding of the trial court which had considered the materials in considerable detail. 19. The trial court in paragraph 31 of its judgment had considered the purchase certificate put forward by the contesting defendants in detail and has come to the S.A.822/1998. 15 conclusion that it takes in a totally different property. It has also referred to the evidence of D.W.5, a witness examined on behalf of the contesting defendants and has come to the conclusion that as per Ext.B8 only one item of property was obtained by them. The trial court has also gone into the description of the properties obtained under Ext.B8 and has come to the conclusion that the property taken in by Ext.B8 is totally different from plaint item No.2. 20. It is not in dispute that the second defendant is closely related to the first defendant. The case of the plaintiff is that the first defendant had permitted the second defendant to reside in the house in the property which appears to be probable. The second defendant might have been managing the property also. But that can only be for and on behalf of the first defendant and not by virtue of his independent right. The payment of building tax by the second defendant has been explained by the plaintiffs. The trial court on an evaluation of the evidence had come to a S.A.822/1998. 16 categoric finding that the second defendant's occupation was permissive. 21. One may at this point note that there was no attempt from the contesting defendants to show that Ext.B12 taken in plaint item No.2. There was no attempt from the side of the second defendant to get that property identified by the Commissioner. It will not be out of place here to refer to the commissioner's report. The commissioner in his report has stated that defendants 2 to 7 are residing in a property which they purchased from Ramutty and Manikunnath Kunjikannan in a building numbered as 8/204 and that it contains shop buildings also. The commission report also shows that almost in the middle of the plaint schedule property there is another building with number 8/202. Going by the commissioner's report it could not said that defendants 2 to 7 were residing in the suit property. Even assuming that they were residing in the building in the suit property, it was for them to show that they had independent right to do so and as long as Ext.A1 S.A.822/1998. 17 stands, the finding of the trial court that the occupation of defendant Nos. 2 and 3 to 7 can be only permissive cannot be found fault with. The trial court has also taken note of the recital regarding the ownership of the house based on which claim is made by defendants 2 to 7. The trial court has found that they had no independent title over plaint item No.2. 22. Now one may refer to the oral evidence in the case. The third defendant is examined as D.W.4. She says that after her marriage she has been residing in plaint item No.2 and she is continued to reside there with her husband and child. This is belied by the commissioner's report. D.W.4 further states that the property over which she lays claim is comprised in Sy. No.107/12. She would also say that the first defendant had never resided with them. She is categoric in her statement that there is no mistake in the survey number shown in any of the documents. She asserts that tax has been paid in respect of the property comprised in the survey number shown in Ext.B12. Finally she says S.A.822/1998. 18 that she had no direct knowledge of any of the documents produced by the defendants. 23. It could thus be seen that the trial court had considered all the aspects and various contentions raised by the contesting defendants in respect of item No.2 and found that their claim cannot be accepted. The lower appellate court was mainly persuaded by Exts.B23 and B25 documents, which as already stated, cannot be relied on to hold against the plaintiff. From the above discussion, it follows that the finding of the lower appellate court that item No.2 is not available for partition cannot be sustained. In the result, this appeal is allowed, the impugned judgment and decree are set aside and the preliminary decree passed by the trial court is restored. There will be no order as to costs. ## **P. BHAVADASAN, JUDGE** sb.