SANTHAKUMARI and SUDHAYINI v. VELAYUDHAN, GOVINDAN, KUNJAMMA, AMMALU, RATHNAVALLI and BOSE S/O KOCHUKANDAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938** **RSA.NO. 644 OF 2010 (B) ------------------------** **AGAINST THE JUDGMENT IN AS 70/2006 OF SUB COURT,KOCHI-5 DATED 21-12-2009** **AGAINST THE JUDGMENT IN OS 182/2005 OF PRL.MUNSIFF COURT KOCHI DATED 28-02-2006** ## **APPELLANTS/APPELLANTS/PLAINTIFFS** **----------------------------------** ## **1. SANTHAKUMARI,** **D/O.KUNJAPPAN, AGED 54 YEARS, KUTHUKATTUTHARA HOUSE, KAZHUTHUMUTTU, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK.** **2. SUDHAYINI,** **D/O.KUNJAPPAN, AGED 50 YEARS, KUTHUKATTUTHARA HOUSE, KAZHUTHUMUTTU, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK.** **BY ADVS.SRI.G.KRISHNAKUMAR SRI.SURAJ KRISHNA B.S. SRI.P.H.SHAJI** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS** **------------------------------------** **1. VELAYUDHAN,** **S/O. KOCHUKANDAN, KUTHUKATTUTHARA HOUSE, KAZHUTHUMUTTU, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK, MUNDEMVELI P.O.** **2. GOVINDAN,** **S/O. KOCHUKANDAN KUTHUKATTUTHARA HOUSE, KAZHUTHUMUTTU, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK. MUNDEMVELI P.O.** **NOW RESIDING AT THAMARASSERI HOUSE, UDAYAMPEROOR, NADAKKAVU P.O.** **3. KUNJAMMA, D/O.KOCHUKANDAN, KUTHUKATTUTHARA HOUSE, KAZHUTHUMUTTU, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK, MUNDEMVELI P.O. NOW RESIDING AT KARUVELITHARA HOUSE, KUNDANNOOR, MARADU PO** ## **RSA.NO. 644 OF 2010 (B)** **------------------------** **4. AMMALU D/O.KOCHUKANDAN, KUTHUKATTUTHARA HOUSE, KAZHUTHUMUTTU, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK. NOW RESIDING AT IN KUNNATHU HOUSE, PERUMPADAPPU, PALLURUTHY PO** **5. RATHNAVALLI, D/O.KOCHUKANDAN, KUTHUKATTUTHARA HOUSE, KAZHUTHUMUTTU, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK, MUNDEMVELI P.O. NOW RESIDING AT, NAMBOOTHIRIKANDATHIL HOUSE, EDAKOCHI PO.** **6. BOSE S/O.KOCHUKANDAN, AGED 46 YEARS, KUTHUKATTUTHARA HOUSE, KAZHUTHUMUTTU, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK, MUNDEMVELI P.O. NOW RESIDING AT, NAMBOOTHIRIKANDATHIL HOUSE, EDAKOCHI PO.** **R1 & 2 BY ADV. SRI.B.KRISHNA MANI R5&6 BY ADV. SRI.L.P.ARAVINDAKSHAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DST** **==> picture [158 x 16] intentionally omitted <==** **= = = = = = = = = = = = = = = = = = = = = R.S.A. No. 644 of 2010** **- - - - - - -- - - - - - - - - - - - - - - - - - - -** Dated this the 25th day of January,2017 ## **J U D G M E N T** The appellants herein are the plaintiffs in O.S.No.182/2005 on the files of the Munsiff's Court, Kochi. The aforesaid suit was filed by the plaintiffs for partition and separate possession of the plaint schedule property. According to the plaintiffs, the plaintiffs 1 and 2 are children of Kunjappan and the defendant and the 3[rd] plaintiff are the children of Kochukandan. Kunjappan and Kochukandan are the children of late Poomathi. Thus Poomathi was the grandfather of both plaintiffs and defendants. Poomathi had large extent of land as owner and tenant. But at the time of his death he was holding only the plaint schedule property under tenancy. After his death, the plaint schedule property devolved on Kunjappan and Kochukandan as **R.S.A. No. 644 of 2010** ## **-: 2 :-** his legal heirs. Thereafter, the plaint schedule property was devolved to Kunjappan and Kochukandan as tenants. When Kochukandan died, his right in the property devolved on his legal heirs, who are the defendants and the 3[rd] plaintiff. While so, after the death of Kochukandan, Kunjappan and defendants 1 and 2 applied to the Land Tribunal, Vypin for purchase of Jenmam right in the property as O.A.No.1734/75 and the Land Tribunal issued Ext.A1 purchase certificate in favour of them. Thus, with respect to the plaint schedule property the plaintiffs and defendants are co-owners. But, when the plaintiffs demanded partition and separate possession of their share, the defendants denied the same and in that circumstance the suit was filed for partition. 2. In the written statement, the defendants contended that Poomathi was not a tenant of the **R.S.A. No. 644 of 2010** ## **-: 3 :-** plaint schedule property at any time. Poomathi never owned or possessed or enjoyed the plaint schedule property as a tenant. The Jenmi of the plaint schedule property was Eskkal Halleswa, Jew Town, Kochi and the plaint schedule property was outstanding on lease with Kochukandan, the father of the defendants, as per Ext.B1 Pattacheet of 1111ME of the District Registrar Office, Cochin and he was possessing and enjoying the property by paying 'pattam', subsequently mortgaged the plaint schedule property to one Kalyani by Ext.B2, and subsequently the legal heirs of Kochukandan got it released by Ext.B3. Thus, after the death of Kochukandan his right over the plaint schedule property devolved upon the defendants and plaintiff No.3 only and not to Kunjappan or his legal heirs. After the commencement of the Kerala Land Reforms Act, 1963, (for short, 'the Act'), the legal heirs of **R.S.A. No. 644 of 2010** ## **-: 4 :-** Kochukandan became absolutely the owner of the plaint schedule property. At no point of time Kunjappan was a tenant, along with Kochukandan, of the plaint schedule property as claimed by the plaintiffs. It is also contended that defendant Nos.1 and 2 started construction of a residential building in the plaint schedule property in the year 1964 and for the purpose of raising funds, Ext.A2 mortgage deed was executed in favour of one Vakkachan and the mortgagee wanted him to include the name of Kunjappan also in the mortgage deed. Even though Kunjappan has no right over the plaint schedule property, his name was also included in the property in order to raise funds for construction of the building in the plaint schedule property. Since defendants No.1 and 2 were employed in the Government department, after the commencement of the Act, Kunjappan filed an original application **R.S.A. No. 644 of 2010** ## **-: 5 :-** claiming fixity of tenure along with the defendants 1 and 2. Ext.A2 mortgage deed had been produced before the Land Tribunal and thereby obtained Ext.A1 patta in the name of Kunjappan and the defendants. But, actually the issuance of patta in the name of Kunjappan will not confer any right to Kunjappan as legal heir. It is also contended that GCDA issued notices to the defendants 1 and 2 also on the basis of Ext.A1 Patta only. Subsequently, the second wife of Kochukandan and the sister of defendant Nos.1 and 2 relinquished their right over the plaint schedule property as per Ext.B4. Thus, the defendants and the 3[rd] plaintiff are the co-owners of the property. Hence the plaint schedule property is not partible and the claim for partition is liable to be rejected. 3. On the rival pleadings, both parties adduced evidence consists of the oral testimony of ## **R.S.A. No. 644 of 2010** ## **-: 6 :-** P.W.1 and Exts.A1 to A3, B1 to B5(e). After considering the aforesaid evidence the trial court allowed the suit in part, rejecting the claim for partition of the plaintiffs 1 and 2 and allowing the claim for partition of the 3[rd] plaintiff. Though in appeal, A.S. No.70/06, the plaintiffs challenged the findings of the trial court, the appellate court also confirmed the findings of the trial court and dismissed the appeal. Thus, the legality and correctness of the concurrent findings whereby the courts below found that the plaintiffs are not coowners of the property, who are entitled to get share in the plaint schedule property, are challenged in this Appeal. 4. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents. 5. The sum and substance of the arguments **R.S.A. No. 644 of 2010** ## **-: 7 :-** advanced by the learned counsel for the appellants is that Ext.A1 purchase certificate, issued by the Land Tribunal, is a conclusive proof to plaintiffs' right over the property and the purchase certificate issued under Section 72(k) of the Act can never be subject to judicial scrutiny of civil court and the determination of the Land Tribunal is binding on the civil court. In other words, it is his argument that civil courts cannot sit in the judgments over the findings of the Land Tribunal in view of Section 125 of the Act. But, the courts below have not considered the conclusiveness of Ext.A1 purchase certificate. More over, the courts below discarded the evidentiary value of Ext.A1 purchase certificate and relied on Exts.B1 to B3 for rejecting the claim of the plaintiffs. In support of the above argument , the learned counsel for the appellants cited Larger Bench decision of this court in _**Kesava Bhat**_ **R.S.A. No. 644 of 2010** ## **-: 8 :-** _**v. Subraya Bhat**_ [1979 KHC 346 FB], _**Koran v. Kamala Shetty**_ [1977 KHC 147] and another decision of this Court in _**Rajan A. and Another v. T.K.Kumari**_ [2010 (2) KHC 688]. 6. On the other hand, the learned counsel for the respondents advanced arguments to justify the concurrent findings of the courts below and submits that the courts below have rightly placed reliance on Exts.B1 to B4. The learned counsel drew my attention to Ext.B2 and Ext.A2 to substantiate the contention that even though Ext.A1 purchase certificate stands in the name of Kunjappan and defendant Nos.1 and 2, and Kunjappan was a name lender only, the said purchase certificate was issued on the basis of Ext.A2 mortgage deed. Further, the learned counsel drew my attention to the circumstances under which Ext.A2 certificate was obtained. **R.S.A. No. 644 of 2010** ## **-: 9 :-** 7. In view of the submissions at the Bar, the substantial questions of law to be considered in this Appeal are, (1). Whether the purchase certificate issued under Section 72(k) of the Act in respect of the property is a conclusive proof of title of the person to whom the purchase certificate had been issued? (2). Whether the courts below are justified in discarding the purchase certificate issued under Section 72(k) of the Act and relying on other evidence to reject the claim of the plaintiffs for partition? 8. It is the specific case of the plaintiffs that the plaint schedule property originally belonged to Poomathi, the father of Kunjappan and Kochukandan, and Poomathi was a tenant who was entitled to get fixity of tenure under the Act. After the death of Poomathi, the plaint schedule property devolved upon Kunjappan and Kochukandan and after their death the plaint schedule property devolved upon the plaintiffs and the defendants as their legal heirs. But, it is the case of the defendants that the plaint schedule property belongs **R.S.A. No. 644 of 2010** ## **-: 10 :-** to Kochukandan by virtue of Ext.B1 sale deed of 1111ME and the plaint schedule property was leased out to him by the Jenmi by name Mr.Eskkal Halleswa, Jew Town, Kochi. Poomathi had no kind of right over the plaint schedule property and he had never been in possession and enjoyment of the plaint schedule property. 9. Thus, the first point to be considered is, who was the original tenant of the plaint schedule property; i.e., whether Poomathi or Kochukandan. Going by the evidence on record, it could be seen that absolutely there is no evidence to prove the claim of the plaintiff that the plaint schedule property originally belonged to Poomathi as tenant. whereas Ext.B1 shows that the plaint schedule property had been leased out to 'Kochukandan' by the original jenmi by name 'Eskkel Halleswa', as per Ext.B1 in the year 1111 M.E. Ext.B1 is a registered **R.S.A. No. 644 of 2010** ## **-: 11 :-** patta cheet, whereby the right to possess and enjoy the property was given to him, by paying pattam. Further, Ext.B2 shows that the said 'Kochukandan' mortgaged the plaint schedule property to 'Kalyani' in the year 1122 M.E., by virtue of Ext.B2 and Ext.B3 shows that after the death of 'Kochukandan', the said mortgagee executed Ext.B3 release deed in the year 1963 in favour of the defendants. That apart, in Ext.B2 mortgage deed, Ext.B1 patta cheet is seen referred as the source of title and it is specifically stated that 'Kochukandan' is in possession of the plaint schedule property. Moreover, 'Poomathi' was an attesting witness in Ext.B2. Thus, on a combined reading of Exts.B1 to B3, unambiguously, it can be held that the original tenant, who was in possession of the plaint schedule property, was deceased 'Kochukandan' and 'Poomathi' had no kind of right over the plaint schedule **R.S.A. No. 644 of 2010** ## **-: 12 :-** ## property. 10. But, it is the case of the defendants that the Land Tribunal has issued Ext.A1 purchase certificate in the name of 'Kunjappan' and defendants 1 and 2 and the purchase certificate alone will determine the rights of the parties. In view of the conclusiveness of purchase certificate under Section 125 of the Act, Exts.B1 to B4 cannot be relied on to determine the rights of the parties. As rightly pointed out by the learned counsel for the appellant, the conclusiveness of a purchase certificate issued under Section 72K(ii) of the Act, has been considered by a Larger Bench of this Court. Having gone through the Larger Bench decision and Full Bench decision of this Court, this Court is of the opinion that those decisions will not stand in the way of scrutinising legality and correctness of the purchase certificate issued by the Land **R.S.A. No. 644 of 2010** ## **-: 13 :-** Tribunal, by the Civil Courts. 11. In the above context, the circumstances under which the purchase certificate happened to be issued and narrated by the defendants in the written statement assumes significance. This Court is of the view that if the civil court finds that the purchase certificate issued by the Land Tribunal is a fraudulent one, in view of the other evidence, on record, the Civil court can reject the purchase certificate and rely on other evidence available on record in the suit. In other words, the purchase certificate can never be a gospel truth in all circumstances. No doubt, it can be subjected to judicial scrutiny and the Civil Court can examine the correctness and validity, if other evidence available on record compels the court to do so. Therefore, this Court finds that the conclusiveness contemplated under Section 125 of the Act will not **R.S.A. No. 644 of 2010** ## **-: 14 :-** stand in the way of examining the legal validity of the same, if other evidence are sufficient to draw an inference that the purchase certificate was issued fraudulently. 12. Going by the written statement, it is specifically stated that since defendants 1 and 2 are Government employees, an application seeking issuance of purchase certificate was filed by 'Kunjappan' along with defendants 1 and 2 and in that proceedings Ext.A2 mortgage deed was produced and the purchase certificate was happened to be issued relying on Ext.A2 mortgage deed. 13. Going by Ext.A2 mortgage deed, it is specifically stated that the plaint schedule property belongs to 'Kochukandan', by virtue of Ext.B1 patta cheet, though 'Kunjappan' was also a party to Ext.A2. Ext.A2 specifically excluded him from the ownership of the property. Needless to say, **R.S.A. No. 644 of 2010** ## **-: 15 :-** in Ext.A2 'Kunjappan' is a name lender only, without specifying any kind of right. Therefore, the Land Tribunal ought not have placed reliance on Ext.A2 for issuing Ext.A1 purchase certificate. Thus, the document produced by the plaintiff itself shows that 'Kochukandan' alone was the lessee of the plaint schedule property under Ext.B1 patta cheet. Therefore, plaintiffs 1 and 2, who are the legal heirs of 'Kunjappan' are estopped from contending against Ext.B1 patta cheet. On an analysis of the document produced by the plaintiffs, this Court has no hesitation to hold that Ext.A1 purchase certificate was obtained fraudulently without determining the actual tenant, who was holding the property. In the above view, the courts below are justified in discarding Ext.A1 purchase certificate and relying on Exts.B1 to B4. In short, the courts below rightly rejected the plaintiff's claim for **R.S.A. No. 644 of 2010** ## **-: 16 :-** partition. 14. I do not find any kindly of illegality or perversity in the appreciation of evidence. The findings in the impugned judgment do not warrant any interference under Section 100 of the Code of Civil Procedure, 1908. No other question of law arises for consideration. This Regular Second Appeal is dismissed accordingly. All pending interlocutory applications will stand closed. OKB/DST Sd/- **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**