RFA No.850 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 9[TH] DAY OF JUNE 2023 / 19TH JYAISHTA, 1945** **RFA NO. 850 OF 2013** **AGAINST THE JUDGMENT IN OS 520/2007 OF SUB COURT, ALAPPUZHA** **-----** ## **APPELLANT/23RD DEFENDANT:** ABDUL RAHMAN YAFI S/O.ABDUL YAFI, NAZAR MANZIL, AYIROOR, VARKALA, THIRUVANANTHAPURAM. BY ADVS. SRI.R.AZAD BABU SMT.SMITHA PILLAI ## **RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 TO 22 AND 24 TO 37:** 1 HUSSAIN YAFI S/O.MUHAMMED YAFI, THAZHAKATHU PUTHEN VEEDU, SACHARIA WARD, ALAPPUZHA - 688 012. 2 AYISHA BEEVI W/O.MUHAMMED YAFI, THAZHAKATHU PUTHEN VEEDU, ZACHARIA WARD, ALAPPUZHA - 688 012. 3 B.H.NABEESA, WIDOW OF UMMAR YAFI, DO. DO. 688 012. 4 SAINAB, W/O.ABDULLA YAFI, YAFI COIR FACTORY OF DO. DO. 688 012. 5 FATHIMA BEEVI, D/O.ABDULLA YAFI, DO. 688 012. 6 MARIYAM BEEVI, D/O.ABDUL KHADAR YAFI, CHIRACKAL VEEDU, BEACH ROAD, KOILADI, KOZHIKODE - 673 305. 7 KUNJU BEEVI D/O.ABDUL KHADAR YAFI, MARVA HOUSE, ALISSERI WARD, ALAPPUZHA 688 001. **RFA NO. 850 OF 2013** -2- - 8 HAAMID YAFI, S/O.ABDUL KHADAR YAFI FATHIMA MANZIL, CIVIL STATION WARD, ALAPPUZHA - 688 001. - 9 JAMEELA BEEVI, D/O.ABDUL KHADAR YAFI, THAUFEEK, KARUKAYIL WARD, JANARDHANA JUNCTION, THATHAMPPALLY P.O., ALAPPUZHA - 688 013. - 10 ASHRAF YAFI, S/O.ABDUL KHADAR YAFI, ARJAD MANZIL, CIVIL STATION WARD, ALAPPUZHA - 688 001. - 11 SHAJIRA, S/O.ABDUL KHADAR YAFI, ISHAAS HOUSE, BEACH ROAD, KOILANDI, KOZHIKODE - 673 305. - 12 ANASS YAFI, S/O.ABDUL KHADAR YAFI, FIROSS MANZIL, ASRAMAM WARD, ALAPPUZHA - 688 006. - 13 RASSIA D/O.ABDUL KHADAR YAFI, SABITHA MANZIL, ZACHARIA WARD, ALAPPUZHA - 688 012. - 14 HASHIM YAFI S/O.ABDUL KHADAR YAFI, SABITHA MANZIL, DO. 688 012. - 15 SYED YAFI S/O.UMMER YAFI, THAZHAKATHU PUTHEN VEEDU, ZACHARIA WARD, ALAPPUZHA - 688 012. - 16 HABEEBA, DO.UMMAR YAFI DO 688 012. 17 NAUSHAD YAFI, SO.UMMER YAFI LULU MANZIL, DEVASWOM PURAYIDOM, DO. 688 012. - 18 JASMI S/O.DO. DO. 688012 19 THAHIRA NAUSHAD D/O. DO.KANIYAPARAMBU VALIYAMARAM WARD, THIRUVAMBADI P.O., ALAPPUZHA 688 002. **RFA NO. 850 OF 2013** -3- - 20 FAUSIA D/O.UMMAR YAFI, P.T.PURAYIDOM, CIVIL STATION WARD, ALAPPUZHA 688 001. - 21 NAUFAL YAFI S/O.DO., THAZHAKATHU PUTHEN VEEDU, ZACHARIA WARD, ALAPPUZHA 688 012. - 22 SHAHINA DO.DO. MARAKKARKUTTY VALAPPU, NEAR YAFI PALLI OF DO. 688 012. - 23 VIJILA S/O.DO. THAHAKATHU PUTHEN VEEDU, ZACHARIA WARD, ALAPPUZHA - 688 012. - 24 KHADEEJA BEEVI, W/O.ALI YAFI THAZHAKATHU PUTHEN VEEDU, ZACHARIA WARD, ALAPPUZHA 688 012. - 25 RAFEEK YAFI SO.ALI YAFI OF DO. 688 012. - 26 RASEENA DO.ALI YAFI OF DO. 688 012. - 27 LAILA WO.RASHEED YAFI, YAFI HOUSE OF DO. 688 012. - 28 KEMEEM YAFI, SO.RASHEED YAFI DO. DO. 688 012. - 29 SHEMEEMA D/O.RASHEED YAFI OF DO. 688 012. - 30 ROSHANA D/O.RASHEED YAFI OF DO. 688 012. - 31 SALEENA, W/O.MUHAMMED YAFI YAFI COIR FACTORY OF DO. 688 012. - 32 NAJMA, DO.DO. DO. 688 012. - 33 SAHEER S/O.MUHAMMED YAFI DO. 688 012. **RFA NO. 850 OF 2013** -4- 34 RAHUMATHU BEEVI D/O.ABDULLA YUFI, RAHMATH MANZIL, NEAR RAILWAY STATION, BEACH WARD, ALAPPUZHA 688 012. 35 HAROON YAFI S/O.ABDULLA YAFI, YAFI COIR FACTORY, ZACHARIA WARD, ALAPPUZHA 688 012. 36 HARIES YAFI, SO.DO. DO. 688 012. 37 ANASS YAFI, SO.DO. DO. 688 012. BY ADVS. SRI.G.S.REGHUNATH SRI.P.A.ABDUL JABBAR SRI.P.SHANES METHAR THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 09.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.850 of 2013** **= = = = = = = = = = = = = = = = = = Dated this the 9[th] day of June, 2023** ## **J U D G M E N T** The 23[rd] defendant in a suit for partition is in appeal against the preliminary decree. 2. The property involved originally belonged to Abdul Khadar Yafi. He had two sons, Muhammed Yafi and Abdullah Yafi. The first defendant is the wife of Muhammed Yafi, and the plaintiff is their son. Defendants 2 onwards are the successors of Abdullah Yafi. 3. After the demise of the Abdul Khadar Yafi, the property was partitioned between his wife and sons, Muhammed Yafi and Abdulla Yafi, under Ext.A3 Partition Deed. In Ext.A3 partition, Abdullah Yafi was allotted one half of 64 cents with the improvements thereon, as included in 'A' schedule item No.6 therein; and Muhammed Yafi was allotted the other one half, as included in 'B' ## **R.F.A. No.850 of 2013** -: 2 :- schedule item No.6. The plaintiff seeks for metes and bounds partition of the property. 4. The suit claim was challenged mainly by defendants 2 and 23. It was contended that their predecessor Abdullah Yafi had tenancy right over the share of Muhammed Yafi and that, a right of nonevictability is conferred on the tenant under the Land Reforms Act. The landlord's right have vested with the Government. Therefore, the plaintiff has no subsisting right over the property. It was also urged that the plaintiff is not in joint possession over the property and that the suit filed under Section 37(2) of the Court Fees Act could not be maintained. 5. The suit was originally decreed by the trial court. The present appellant who is the 23[rd] defendant preferred RFA 107/2011 before this Court. As per judgment dated 17.03.2011, this Court set aside the decree and remanded the matter back to the trial court to consider the plea of tenancy and to refer the same to ## **R.F.A. No.850 of 2013** ## -: 3 :- the Land Tribunal in terms of Section 125(3) of the Kerala Land Reforms Act if the question arises for determination. After remand the trial court referred the issue of tenancy to the Land Tribunal. The Land Tribunal entered a finding negativing the plea. The trial court, accepting the plea, decreed the suit. Thus, the 23[rd] defendant is in appeal. 6. Heard Sri.R.Azad Babu, learned counsel for the appellant and Sri.G.S.Reghunath, learned counsel for the first respondent-plaintiff. 7. The points for determination are:- - (i) Is the plea of tenancy liable to be upheld? (ii) Is the plaintiff in joint possession of the property? 8. Ext.B1 is a deed of lease executed in 1120 ME by Abdullah Yafi in favour of the plaintiff and the first defendant. By that time Muhammed Yafi, the predecessor of the plaintiff and the first defendant was no more. The plaintiff was a minor at that time. Ext.B1 lease was **R.F.A. No.850 of 2013** -: 4 :- in respect of the one half share that belonged to Muhammed Yafi over the property. Subsequently, the plaintiff and his mother-the first defendant, filed OS 132/1951 against Abdullah Yafi and another for recovery of possession of the plaint schedule property and certain other properties. The suit was compromised between the parties. Ext.A5 is the plaint, Ext.A6 is the written statement, Ext.A7 is the replication, and Ext.A8 is the compromise decree in that suit. As per the compromise, Abdullah Yafi was to continue in possession of the property. Thus, the tenancy continued. In the light of the provisions of the Kerala Land Reforms Act, right of non-evictability is vested with the defendants and the title of the landlord is vested with the Government. Therefore, the plaintiff does not have any subsisting right over the property. Thus, the suit is liable to be dismissed, is the argument of the appellant. ## **R.F.A. No.850 of 2013** -: 5 :- 9. The Land Tribunal and the trial court held that since Ext.B1 lease deed is executed not by the lessor but only by Abdullah Yafi who is stated to be the lessee, no valid lease has been created thereunder. I am unable to agree with the said finding. The lease claimed under Ext.B1 is of the year 1120 ME. When a deed of lease is executed by the lessee in favour of lessor and the lessor accepts the arrangement, a valid lease is created. It is not necessary that both parties should have signed the document _[See_ _**Asa ram v. Ram Kali, AIR 1958 SC 183, Rajendra Pratap Singh v. Rameshwar Prasad, 1998(7) SCC 602** ]_ . In the suit filed by the plaintiff and his mother as OS 132/1951 (Ext.A5) and the replication filed by them in the said suit as Ext.A7, the lease arrangement has been acknowledged. The suit was filed for recovery of possession on termination of the lease. Therefore, I find that there was a lease arrangement between the plaintiff and the first defendant on the one part as lessor, and Abdullah Yafi on the other part as lessee. ## **R.F.A. No.850 of 2013** -: 6 :- 10. The question would be whether the lease survived Ext.A8 compromise decree passed in OS 132/1951. As noticed, the suit was filed for recovery of the leased property, along with other properties. The terms of the compromise decree, in relation to the property in question, are of significance. Plaint item No.5 in the said suit is the disputed property. The relevant recitals in the compromise which are in vernacular, read thus:- “ ¾mw Sn 5þpw 9þpw \-¼-cpI-sf kw-_-Ôn-¨v ssa-\À c hm-Zn ta-PÀ B-Ip-ó A-h-k-c-¯nð Sn h-kv-Xp-¡Ä hm-Zn {]-Xn-IÄ X-½nð \-ev-]v \n-ev-]v i-cn-bmbn-«v `m-Kn-¨v sIm-Åmsa-óv hm-Zn-I-fpw 1þmw {]-Xnbpw k-½-Xn-¨n-cn-¡póp. ]-«n-I 5þpw 9þpw \-¼À h-kv-Xp-¡-fp-sS Fñmhn-[ \n-Ip-Xn-Ifpw **v** tað-¸-d-ªXp-t]m-se `m-Kn-¨ F-Sp-¡p-ó-Xph-sc sIm-Sp¡pó-Xn\v 1þmw {]-Xn _m-²y-Ø-\p-amWv. A-{]-Imcw 1þmw {]Xn 5þpw 9þpw \-¼À h-kv-Xp-¡-fp-sS I-cw sIm-Sp-¡msXtbm 5þmw \-¼-cn-ep-Å sI-«n-Sw hm§nbXp-t]m-se kq-£n¡msXtbm hm-Zn-IÄ-¡v hñ \-ã-¯n\pw CSbm-¡pó ]- £w B h-I \-ã-§Ä¡v 1þmw {]-Xn D-¯-c-hm-ZnXzw sNbvXp-sIm-Åm-saóv 1þmw {]-Xnbpw k-½-Xn-¨n-cn-¡póp. **R.F.A. No.850 of 2013** **==> picture [34 x 9] intentionally omitted <==** A-\ym-b ]-«n-I 5þmw \-¼À h-kvXp 1þmw {]-Xn X-só ssIh-iw h-¨p B-Zmbw F-Sp-¡p-ó-Xn\pw Sn h-kv-Xp-hn-se B-Zmbw sImïv 1þmw {]-Xn Sn h-kv-Xphn-ep-Å sI-«n-S-§Ä i-cn-bm-bn kq-£n¨pw Sn h-kv-Xp-hn-sâ ap³-kn-¸ð I-cw, Xm-eq-¡n-te-¡v sIm-Sp-t¡ï d-h\yq I-cw ap-X-em-b-h XÀ¡ k-ab-¯v sIm-Sp-¯p-sIm-tÅ-ïXpw B-Ipóp.” The terms of the compromise are to be understood bearing in mind that, the suit was one for recovery of property on termination of the lease. As per the compromise, when the plaintiff herein attain the age of majority, the property is to be partitioned. Till then, the first defendant therein-Abdullah Yafi, is to take income from the property, pay the taxes due, and maintain the buildings in the property. It was provided that, in case of default, he would be liable for damages. 11. The compromise further provided that, in respect of another item of property Abdullah Yafi is liable to pay rent (pattam). However, there was no such stipulation regarding the plaint schedule property. ## **R.F.A. No.850 of 2013** -: 8 :- 12. Therefore, it is evident that, by virtue of Ext.A8 compromise decree, the lease arrangement created in respect of the plaint schedule property under Ext.B1 did not survive thereafter. Sri.Abdullah Yafi, the first defendant therein, was to look after the property and maintain the same including the buildings therein for and on behalf of the plaintiff and mother also. After Ext.A8 compromise Abdullah Yafi was not holding the property as a lessee but for and on behalf of the plaintiff and the first defendant also. The lease in respect of the plaint schedule property did not survive Ext.A8 compromise. 13. Having found that the lease was terminated, the claim of the defendants for the benefits under the Land Reforms Act is only to be repelled. Accordingly, though for different reasons, I affirm the finding of the Land Tribunal as accepted by the trial court negativing the defence plea of tenancy and the benefits under the Land Reforms Act. ## **R.F.A. No.850 of 2013** -: 9 :- 14. The next contention of the appellant is that, the plaintiff though out of possession, has instituted the suit for partition paying court fees under Section 37(2) of the Court Fees Act alleging joint possession. The evidence on record indicate that the plaintiff and the first defendant are not in possession. Therefore, without paying court fee under Section 37(1) and seeking for recovery of possession, the suit could not be maintained. 15. The possession of a co-owner is deemed to be for and on behalf of the other co-owners. The mere absence of physical possession of one co-owner does not mean that he is not in joint possession with the other co-owner. Unless one co-owner is excluded from possession it cannot be said that he is not in joint possession. Exclusion from possession would arise only on denial of the right of possession. The possession of a co-owner need not always be a joint physical possession for all practical purposes. In _**S. Rm. Ar. Sp.**_ **R.F.A. No.850 of 2013** -: 10 :- ## _**Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar [1958 SCR**_ ## _**1024],**_ the Apex Court held thus:- _“8..... The general principle of law is that in the case of coowners, possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property ….. Before the plaintiffs could be called upon to pay court fee under S.37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been 'excluded' from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession.”_ ## 16. In _**Abdul Lateef v Musthaf Ali, 1959 KLT 412**_ , this Court held that even exclusive use or possession of the property by one co-sharer, does not amount in law to ‘exclusion’ of other co-sharers from possession, and ## **R.F.A. No.850 of 2013** -: 11 :- such exclusion will have to be established by the averments in the plaint and other evidence in the case. The above was further reiterated in _**Thankamma v. Unniamma Antharjanam, 1964 KLT 529, Janaki v. Chandran and Ors. 2012 (1) KLT 481.**_ In _**Vikram Singh & Ors. v. Ajit Inder Singh, AIR 2014 Delhi 173**_ , a division bench of the Delhi High Court held that, “... _it is settled law that unless ouster is pleaded, co-owners would be deemed to be in joint possession of a joint property_ ….”. 17. In the case at hand, there is no plea of ouster. The terms in Ext.A8 compromise adverted to supra clearly indicate that Abdullah Yafi, the predecessor of the defendants was to hold possession for and on behalf of the plaintiff and the first defendant herein. He was made responsible for the upkeep of the property. It is not in dispute that there had been no conveyance in favour of strangers/third parties to say that there has **R.F.A. No.850 of 2013** -: 12 :- been exclusion from possession by induction of strangers. Though the defendants adduced evidence before the Land Tribunal in support of the claim of tenancy, they did not mount the box to depose that the plaintiff has been excluded from possession. Though before the Land Tribunal Exts.B4 and B5 documents were produced by the appellant to show that documents were executed with regard to the property, those are documents within the family and between them. No third party rights were created nor third parties inducted. Possession by the co-owners could only be deemed to have been on behalf of the other co-owners including the plaintiff. As noticed earlier, there is no plea of ouster. Therefore, the trial court was justified in holding that the suit for partition under Section 37(2) of the Court Fees Act is proper. **R.F.A. No.850 of 2013** -: 13 :- 18. Both the points raised for determination are thus answered against the appellant. The decree of the trial court warrants no interference. Appeal fails and is dismissed. kns/- Sd/- **SATHISH NINAN JUDGE** P.S. to Judge //True Copy//