Valsala v. Radha Nethyar and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941** ## **RSA.No.1116 of 2004** **AGAINST THE DECREE & JUDGMENT DATED 14-07-2004 IN AS 57/2001 OF II ADDITIONAL DISTRICT COURT, PALAKKAD** **AGAINST THE DECREE & JUDGMENT DATED 28-09-2000 IN OS 255/1995 OF PRINCIPAL MUNSIFF COURT, PALAKKAD** ## **APPELLANT/APPELLANT/2ND DEFENDANT:** **VALSALA, D/O.KUTTYPARU NETHYAR, MELADATH, AKATHETHARA AMSOM, PALAKKAD TALUK.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.MANU VYASAN PETER** ## **RESPONDENTS/RESPONDENTS 1 -7/PLAINTIFFS & D1 & D3 TO D7:** - **1 RADHA NETHYAR, D/O.KUTTYPARU NETHYAR, MELADATH AKATHETHARA AMSOM, PALAKKAD, NOW AT 4/15 NAWASAHIB THERUVU,, PALLADAM, COIMBATORE.** - **2 BAGHYARATHI NETHYAR (DIED) D/O. KUTTYPARU NETHYAR, MELADATH, AKATHETHARA AMSOM, PALAKKAD TALUK. (LHRS IMPLEADED AS ADDL. R8 TO R10)** - **3 RAJAN (DIED) S/O. KUTTYPARU NETHYAR MELEDATH AKATHETHARA AMSOM, PALAKKAD TALUK. (LHR IMPLEADED AS ADDL. R11)** - **4 RAMACHANDRAN, S/O. KOWSALYA NETHYAR 4/15 NANSAHIB THERUVU, PALLADAM, COIMBATORE.** - **5 BALACHANDRAN, S/O. KOWSALYA NETHYAR 4/15, NANASAHIB THERUVU, PALLADAM, COIMBATORE.** - **6 KAMALAM, D/O. KOWSALYA NETHYAR 4/15, NANASAHIB THERUVU, PALLADAM, COIMBATORE.** **RSA.No.1116 of 2004 2** - **7 PARVATHY, D/O. KOWSALYA NETHYAR 4/15, NANASAHIB THERUVU, PALLADAM, COIMBATORE.** - **8 ADDL. R8 M. VALSALA, D/O. LATE BAGEERATHY NEITHIYAR, RESIDING AT MAELEDOM, AKATHETHARA, PALAKKAD - 678008.** - **9 ADDL. R9 B.APPUKUTTY, S/O. LATE BAGEERATHY NEITHIYAR, RESIDING AT MAELEDOM, AKATHETHARA, PALAKKAD - 678008.** - **10 ADDL. R10 M. CHINNAMANI, D/O. LATE BAGEERATHY NEITHIYAR, RESIDING AT MAELEDOM, AKATHETHARA, PALAKKAD - 678008. (LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 8 TO 10 AS PER THE ORDER DATED 09/4/2019 IN IA 1319/17)** **11 ADDL. R11 V.PUSHPA, WIDOW OF R. RAJAN, RESIDING AT PUSHPA BHAVAN, AKATHETHARA, PALAKKAD - 678008. (LEGAL HEIR OF DECEASED 3RD RESPONDENT IS IMPLEADED AS ADDL. 11TH RESPONDENT AS PER THE ORDER DATED 9/4/2019 IN IA 1263/17) BY ADVS. SMT.M.R.MINI } SMT.PREETHY KARUNAKARAN } SMT.SANJANA R.NAIR } R1 SRI.JAYKAR.K.S. } SRI.R.RAJESH KORMATH }** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RSA.No.1116 of 2004 3** ## **JUDGMENT** The second defendant came up with this appeal against the preliminary decree for partition. The plaint schedule property originally obtained by the mother of plaintiff, first defendant and third defendant under a 'verumpattam' lease. After the demise of mother it was devolved upon her children, plaintiff, defendants 1 and 3 and one deceased daughter. Defendants 4 to 7 are the legal heirs of deceased daughter. The second defendant contested the suit that she had obtained the property from the jenmom right holder temple under a lease arrangements in the year 1962, constructed a building therein and residing along with her husband. It was also admitted that her father and mother residing along with her in that building. While so, she had obtained purchase certificate ## **RSA.No.1116 of 2004 4** over the property, Ext.B3. Ext.B2(a) to (d) produced to show payment of basic tax in respect of the property right from the year 1980 to 1999. But the claim of second defendant was rejected by both the courts below on the ground that a lease hold right claimed over the property obtained in the year 1962 while she was a minor and hence a decree for partition was passed concurrently by both the courts below, against which this appeal preferred. 2. The following questions came up for consideration: - (i) Whether the trial court and the first appellate court justified in granting a preliminary decree for partition without a declaration of title of plaintiffs over the property ? (ii) Whether the First Appellate ## **RSA.No.1116 of 2004 5** Court and the Trial Court are justified in granting a decree for partition without satisfying joint possession in the absence of a relief for recovery of possession ? (iii) Whether the possession held by a stranger not as a co-owner can be considered for and on behalf of all coowners and whether the Trial Court and the First Appellate Court are justified in finding joint possession of suit property ? 3. The plaint schedule property comes to 8.5 cents and the building therein. There is no much dispute with respect to the relationship in between the parties to the suit. The second defendant, who is the appellant herein is the daughter of first defendant. PW1 in the box had admitted that she is **RSA.No.1116 of 2004 6** residing in the said house along with her husband for the last 25 years. She had produced Ext.B3 purchase certificate issued by the Land Tribunal in her favour. She had also produced Ext.B2(a) to (d) tax receipts, payment of basic tax in respect of the property in her name. All these would show that she had obtained purchase certificate over the property on 31.1.1992 and she was paying basic tax over the property. It would prima facie show her possession over the property. None of the plaintiff nor the defendant Nos.1,3 or 4 to 7 have any case that they have paid basic tax in respect of the property at any point of time either before the issuance of Ext.B3 or after the issuance of Ext.B3. Strange enough that the plaintiffs came up with the claim that her mother had obtained a lease hold right over the property and after her demise it was devolved upon equally to her children. But no ## **RSA.No.1116 of 2004 7** documents or even a scrap of paper produced to show the acquisition of either right, title or interest either by way of lease or otherwise let in evidence. In fact, no scrap of paper is produced by the plaintiffs in order to show their right, title or interest over the property. The suit was filed without any suit document, that too without having a relief for declaration of their title over the property. 4. As discussed earlier, the second defendant is not a sharer, not a co-owner and not a legal heir of their mother. The legal heirs of the mother are the plaintiffs, first defendant and third defendant and the mother of D4 to D7. Though second defendant is the daughter of first defendant she cannot be considered as a co-sharer or co-owner of the property. She had obtained Ext.B3 purchase certificate and she is paying basic tax in respect ## **RSA.No.1116 of 2004 8** of the property under Ext.B2 series. This would show that second defendant is in a better position than the plaintiffs regarding the right, title and interest over the property. No relief was sought to set aside the purchase certificate or to declare right, title and interest of the plaintiffs over the property. Second defendant cannot be considered as a co-owner and hence the purchase certificate obtained by her would not enure to the benefit of the co-owners of the property. A simple suit for partition hence not maintainable. The legal position was very much settled by the Apex Court in _**Ananthula Sudhakar v. P.Buchi Reddy & Others (2008)**_ _**4 SCC 594)**_ and it was followed by a Division Bench of this court in _**Thamarasseri Roman Catholic**_ _**Diocese v. Umadevi Nambiar (2017 (1) KLT 71).**_ Both the trial court and the first appellate court failed in applying the legal position in its **RSA.No.1116 of 2004 9** correct perspective. The plaintiffs have succeeded in getting a decree in their favour in both the courts below and as such I am of the view that it is fit and proper to grant an opportunity to the plaintiffs to incorporate substantial prayer in the suit. The decree and judgment of both the courts below are set aside. The matter is remanded back to the trial court for fresh disposal in accordance with law within a period of two moths from the date of appearance of parties. The parties shall appear before the trial court on 19.8.2019. The parties may be permitted to amend their pleadings if it is permissible and to adduce additional evidence. Appeal is allowed in part. No costs. **==> picture [136 x 12] intentionally omitted <==** **P.SOMARAJAN, JUDGE** pm > // TRUE COPY // PA TO JUDGE