S.A. No. 561 of 1997

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR`** ``` TUESDAY, THE 11TH DAY OF DECEMBER 2018 / 20TH AGRAHAYANA, 1940 ``` ## **`SA.No. 561 of 1997`** ## **`AGAINST THE JUDGMENT AND DECREE IN AS 32/1995 of SUB COURT, VADAKARA DATED 12-03-1997`** ``` AGAINST THE JUDGMENT AND DECREE IN OS 86/1983 of MUNSIFF COURT, VADAKARA DATED 23-12-1994 ``` ``` APPELLANTS / APPELLANTS 1,2,6,7 & 8/DEFENDANTS D5,6 AND D12 TO 14: ``` - **`*1 KUTTIYIL KUNHAMMAD (DIED) OTTAPILAKKAL, CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`2 ILLATH MEETHAL ALIYUMMA, KUNHIKANDIYIL, CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`3 T.SUBAIDA, KUNHIKANDIYIL,CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`4 T.RAMALA, KUNHIKANDIYIL,CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`5 ASSIYA, KUNHIKANDIYIL, CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`*6` ADDL.APPELLANTS** **`SULAIMAN HAJI, S/O.LATE KUTTIYIL KUNHAMMED, OTTAPILAKKOOL VEEDU, CHEMMARATHUR P.O.,VATAKARA-673 104.`** - **`7 MOOSA S/O.LATE KUTTIYIL KUNHAMMED,OTTAPILAKKOOL VEEDU,CHEMMARATHUR P.O.,VATAKARA-673 104.`** - **`8 BIYATHU, D/O.LATE KUTTIYIL KUNHAMMED,OTTAPILAKKOOL VEEDU,CHEMMARATHUR P.O.,VATAKARA-673 104.`** - **`9 SUBAIDA, D/O.LATE KUTTIYIL KUNHAMMED,OTTAPILAKKOOL VEEDU,CHEMMARATHUR P.O.,VATAKARA-673 104.`** ``` SA.No. 561 of 1997 ``` ``` 2 ``` ``` 10KADEEJA, W/O.LATE KUTTIYIL KUNHAMMED,OTTAPILAKKOOL VEEDU,CHEMMARATHUR P.O.,VATAKARA-673 104. (LEGAL REPRESENTATIVES OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 6 TO 10 & ADDL. R17 & R18 AS PER THE ORDER DATED 27/05/2015 IN I.A 651/2015.) ``` ``` BY ADVS. SRI.N.L.KRISHNAMOORTHY SMT.SATHYASHREE PRIYA ESWARAN SRI.K.LAKSHMINARAYANAN ``` - **`RESPONDENTS / PLAINTIFF 1,2 & 3, DEFENDANTS 1 TO 4,8,10,11 AND 15: 1 ADUNGONA DEVI AMMA, CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`2 RADHAKRISHNAN, CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`3 ADUNGONA JALAJA AMMA, PETTAKKANDIYIL HOUSE,PALAYAD AMSOM,PATHIYARAKKARA DESOM,VADAKARA TALUK.`** - **`4 MANJANAMPOYIL CHATHU, CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`5 MANJANAMPOYIL MANI, ONAKKALLIPARAMBATH,CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`6 ADUNGONA VIJAYAN, NOW IN GULF-DOHA QUATOR, PB.NO.1662.`** - **`7 PADMANABHA KURUP,`** - **`EDATHATTA NELLOLIL,CHEMMARATHUR AMSOM DESOM.`** - **`**8 K.P.IBRAYI, (DIED)`** - **`CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`9 KUNHAMMAD T. KUNHIKANDIYIL, CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`10 RAZAK T., KUNHIKANDIYIL,CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** ``` SA.No. 561 of 1997 ``` ``` 3 ``` - **`11 NOUSHAD, KUNHIKANDIYIL, CHEMMARATHUR AMSOM DESOM, VADAKARA TALUK.`** - **`**12` ADDL.RESPONDENTS** ``` ALIYUMMA, ``` - **`D/O.LATE K.P.IBRAYI, RESIDING AT KUYYALI, CHEMMARATHUR AMSOM, DESOM, VATAKARA TALUK.`** - **`13 SABIRA, D/O.LATE K.P.IBRAYI, RESIDING AT KUYYALI, CHEMMARATHUR AMSOM, DESOM, VATAKARA TALUK.`** - **`14 ASHRAF, S/O.LATE K.P.IBRAYI, RESIDING AT KUYYALI, CHEMMARATHUR AMSOM, DESOM, VATAKARA TALUK.`** - **`15 NOUSHAD, S/O.LATE K.P.IBRAYI, AGED 28 YEARS, RESIDING AT KUYYALI, CHEMMARATHUR AMSOM, DESOM, VATAKARA TALUK.`** - **`16 NISSAR,`** - **`S/O.LATE K.P.IBRAYI, RESIDING AT KUYYALI, CHEMMARATHUR AMSOM, DESOM, VATAKARA TALUK. (LEGAL REPRESENTATIVES OF DECEASED 8TH RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 12 TO 16 AS PER THE ORDER DATED 03.09.2018 IN IA.1858/2018.)`** - **`*17 KUNHAISSA,`** - **`D/O.LATE KUTTIYIL KUNHAMMED, PUTIYEDATH HOUSE, THODANNUR P.O., VATAKARA-673 541.`** - **`18 AMINA,`** - **`D/O.LATE KUTTIYIL KUNHAMMED, THIRUVANGOTH HOUSE, CHEMMARATHUR P.O., VATAKARA-673 104.`** ## **`BY ADVS.`** ``` R1 TO R3 & R6 BY ADV.R.PARTHASARATHY R12 TO R16 BY ADV.SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN.T.MATHEW ``` ``` THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` SA.No. 561 of 1997 ``` ``` 4 ``` ## **P.B.SURESH KUMAR, J.** ## **---------------------------------** ## **S.A. No.561 Of 1997** **-----------------------------------------------------Dated this the 11[th] day of December, 2018** ## **J U D G M E N T** This second appeal arises from a suit for partition. 2. Fifteen items of properties were sought to be partitioned in the suit. The properties belonged to one Ramakurup. Ramakurup had executed a will in respect of the suit properties and other properties in favour of three persons namely Chirutheyi Amma, Krishna Kurup and Lakshmi Amma. Among them, Krishna Kurup and Lakshmi Amma are children of Chirutheyi Amma. There was a partition among the parties to the will namely Chirutheyi Amma, Krishna Kurup and Lakshmi Amma. Ext.A2 is a partition deed. In terms of Ext.A2 partition deed, the entire properties obtained by them in terms of the will have been divided into two shares. The properties described in schedule A to Ext.A2 partition deed were allotted to Chirutheyi Amma and Lakshmi Amma and the properties described in schedule B to the said partition deed were allotted to Krishna Kurup. The suit properties are the properties allotted in terms of Ext.A2 to Chirutheyi Amma and Lakshmi Amma in terms of Ext.A2 partition deed. The plaintiffs and the ``` SA.No. 561 of 1997 ``` ``` 5 ``` third defendant are the successors of Krishna Kurup. The case set out by the plaintiffs is that on the death of Chirutheyi Amma, 1/4[th] share in the suit property devolved on Krishna Kurup and on his death, the said share of property devolved on the plaintiffs and the third defendant. The suit is for partition of the share of the plaintiffs in the suit properties. Defendants 5 and 6 are persons claiming rights over plaint schedule item Nos.4 and 5 properties and the seventh defendant is a person claiming rights over the plaint schedule item No.6 property. Defendants 5, 6 and 7 who claimed rights over the plaint schedule items 4, 5 and 6 properties raised identical contentions. The stand taken by them was that the aforesaid three items of properties have been leased out by Chirutheyi Amma and Lakshmi Amma in favor of Gopala Kurup, the husband of Lakshmi Amma and Gopala Kurup, in turn, had assigned the properties to them. It was also their contention that as they obtained only lease hold interest in the said properties in terms of the sale deeds executed by Gopala Kurup, they have obtained Exts.B4, B5 and B8 purchase certificates in respect of the said three items of properties, in terms of the Kerala Land Reforms Act. In other words, the stand of defendants 5, 6 and 7 was that the plaint schedule items 4, 5 and 6 properties are not partible. The trial court decreed the suits excluding the plaint schedule items 4, 5 and 6 properties. Both the plaintiffs as also the defendants challenged the decision of ``` SA.No. 561 of 1997 ``` ``` 6 ``` the trial court in appeals. By a common judgment, the appellate court remitted the suit for fresh disposal holding that since questions of tenancy arose for consideration, the trial court should not have decided the matter without a reference of the questions of tenancy to the Land Tribunal for adjudication. Consequently, after the remand, the trial court referred the matter to the Land Tribunal for adjudication of the questions of tenancy involved in the matter. Despite Exts.B4, B5 and B8 purchase certificates, the Land Tribunal answered the reference in favour of the plaintiffs. Nevertheless, the trial court did not decree the suit in so far as it relates to plaint schedule items 4, 5 and 6 properties. Defendants 5, 6 and the legal representatives of the deceased 7th defendant, namely defendants 12 to 15 challenged the decision of the trial court in appeal. The challenge in the said appeal was, in fact, against the decision of the Land Tribunal negativing their claim. The plaintiffs preferred a cross-objection in the appeal preferred by defendants 5, 6 and 12 to 15. The appellate court dismissed the appeal and allowed the cross-objection. Defendants 5, 6 and the legal representatives of the deceased 7[th] defendant are aggrieved by the decision of the appellate court. Hence this second appeal. 3. Heard the learned counsel for the appellants as also the learned counsel for the contesting respondents, viz, the plaintiffs. 4. The learned counsel for the appellants, with all ``` SA.No. 561 of 1997 ``` ``` 7 ``` vehemence at his command, contended that the reference under Section 125(3) of the Kerala Land Reforms Act was unnecessary in a matter like this. According to the learned counsel, purchase certificates have been issued by the Land Tribunal long prior to the institution of the suit and as such, the trial court ought to have decided the suits on the basis of the purchase certificates which are conclusive in the light of the provision contained in Section 72K of the Kerala Land Reforms Act. According to the learned counsel, in the circumstances, the suit should not have been decreed in respect of plaint schedule item Nos.4, 5 and 6 properties. The learned counsel relied on the decision of the Apex Court in **Cheeranthoodika Ahmmedkutty** v. **Parambur Mariakutty Umma** [(2000) 2 SCC 417] and the decision of this court in **Jithesh** v. **State of Kerala & Ors.** (2013 (4) KLJ 456), in support of his contention. 5. Per contra, the learned counsel for the contesting respondents/plaintiffs submitted that the purchase certificates relied on by the appellants are purchase certificates obtained clandestinely by defendants 5, 6 and 7 without impleading Krishna Kurup who had 1/4th right in the property. According to the learned counsel, in so far as purchase certificates have been obtained in proceedings in which their predecessor was not a party, the same cannot be said to be conclusive and binding on them. According to the learned counsel, in ``` SA.No. 561 of 1997 ``` ``` 8 ``` so far as the purchase certificates obtained by the contesting defendants were not conclusive and binding on the plaintiffs, a fresh adjudication by the Land Tribunal was necessary and the reference of the matter to the Land Tribunal was, therefore, in order. 6. I have considered the contentions raised by the learned counsel on either side. As rightly pointed out by the learned counsel for the appellants, it is seen that the purchase certificates, Ext.B4, B5 & B8 in favour of defendants 4, 5 and 6, are seen issued on 03.05.1976, 24.04.1976 and 15.09.1976 respectively and that the suit was instituted only much later, in the year 1983. As such, if the purchase certificates are conclusive and binding on the parties, it was unnecessary for the court to make a reference under Section 125(3) of the Kerala Land Reforms Act. But, the question that arises for consideration is as to whether Exts.B4, B5 and B8 purchase certificates are conclusive and binding on the plaintiffs. It is conceded by the learned counsel on either side that Chirutheyi Amma, mother of Krishna Kurup died prior to the proceedings before the Land Tribunal. In other words, when Chirutheyi Amma died, the landlords' interest in the three items of properties referred to above devolved on Krishna Kurup and Lakshmi Amma. There is no dispute to the fact that Exts.B4, B5 and B8 purchase certificates have been obtained in proceedings in which Krishnakurup, one of the landlords was not a ``` SA.No. 561 of 1997 ``` ``` 9 ``` party. The aforesaid fact was taken note of by the appellate court in the earlier round of appeals. The relevant recital in the said judgment reads thus: “There is no case for defendants 5 to 7 that they had impleaded the plaintiffs and 3[rd] defendant as parties to this proceedings.” The plaintiffs are the successors of Krishna Kurup. If Exts.B4, B5 and B8 purchase certificates have been obtained in a proceedings in which the predecessor of the plaintiffs, viz, Krishnakurup was not a party, the same cannot be said to be conclusive and binding on the plaintiffs. If that be so, a further reference of the matter for adjudication of the tenancy rights involved was necessary in the light of the mandate contained in Section 125(3) of the Kerala Land Reforms Act. In so far as the decision rendered on the aforesaid reference by the Land Tribunal in favour of the plaintiffs and the third defendant was not interfered with in appeal, the decision of the appellate court is in order. The second appeal, in the circumstances, is without merits and the same is, accordingly, dismissed. ## **`Sd/-`** ## **`P.B.SURESH KUMAR`** Mn ## **`JUDGE`**