Kerala High Court
Kundumadathil Sudhakaran vs Kaimala Bhargavi Amma
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
THURSDAY, THE 24TH DAY OF OCTOBER 2013/2ND KARTHIKA, 1935
AS.No. 462 of 1994 ( )
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AGAINST THE ORDER/JUDGMENT IN OS 44/1991 of SUB COURT, TIRUR.
APPELLANT(S):
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1. KUNDUMADATHIL SUDHAKARAN
S/O.KOCHUKUTTY AMMA,
VELLAYOOR AMSOM AND DESOM
POST VELLAYOOR, ERNAD TALUK
MALAPPURAM DISTRICT.
2. -DO- MOHANAN, S/O. DO. DO.
3. -DO- DIVAKARAN, S/O. DO MANJERI
AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.
BY ADVS.SRI.V.R.VENKATAKRISHNAN,N.C.JOSEPH
SRI.S.ANANDAKRISHNAN
RESPONDENT(S):
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1. KAIMALA BHARGAVI AMMA, D/O. PARVATHI
AMMA, KATTEKKAD, THUVVUR AMSOM & DESOM,
P.O. THUVVUR, ERNAD TALUK
MALAPPURAM DT. (DIED) LRS IMPLEADED. RECORDED.
(IT IS RECORDED THAT R3 AND R4 ARE THE LEGAL REPRESENTATIVES
OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 24.10.13 IN
MEMO DATED 29.1.08. CF No.575/08)
2. KAIMALA SAROJINI AMMA, D/O.
DO. KANICHOOTHU, KARALMANNA AMSOM
AND DESOM., P.O. KARALMANNA, ERNAD TALUK,
MALAPPURAM DISTRICT.
3. KAIMALA BALAKRISHNAN, S/O.
BHARGAVI AMMA, KATTEKKAD THUVVUR AMSOM
AND DESOM P.O. THUVVUR, ERNAD TALUK
MALAPPURAM DISTRICT.
4. KAIMALA SETHUPARVATHI BAI
D/O. DO. DO.
ADDL.R5 TO R9 IMPLEADED
ADDL.R5. GOPINATHAN, S/O.DO.THAIMALA HOUSE POST
PALAKKALVETTA, VIA, THUVVUR
679 327, MALAPPURAM DISTRICT.
ADDL.R6. PUSHPAJA, D/O. DO.
ADDL.R7. PREMA, D/O. DO.
ADDL.R8. SUMATHI, D/O.DO.DO.
ADDL.R9. SUKUMARAN, S/O.DO.DO.
LEGAL HEIRS OF THE DECEASED RESPONDENT NO.1 ARE IMPLEADED
AS ADDL.R5 TO R9 VIDE ORDER DT. 10.12.08 ON I.A.1251/08.
ADDL.R10 TO R13 IMPLEADED.
ADDL.R10. GANGADHARAN NAIR,
POOKKOTTUMPADAM POST,
VIA, NILAMBUR, NILAMBUR TALUK,
MALAPPURAM DT.
ADDL.R11. PUSHPANGADA, D/O.GANGADHARAN NAIR, DO. DO.
ADDL.R12. RADHIKA, D/O. DO. DO.
ADDL.R13. SMITHA, D/O. DO. DO.
THE CHILDREN OF PREDECEASED DAUGHTER BEING THE LEGAL
REPRESENTATIVES OF FIRST RESPONDENT ARE IMPLEADED AS
ADDL.R10 TO R13 AS PER ORDER DATED 10.9.12 IN I.A.1461/09
BY ADV. C.P.DAMODARAN NAIR
, BY ADV. SRI.D.KRISHNANPRASAD FOR R3 AND R4
BY ADV. SRI.K.RAMACHANDRAN
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 7.10.2013
ALONG WITH A.S.385/1995 THE COURT ON 24.10.2013 DELIVERED THE
FOLLOWING:
S.S.SATHEESACHANDRAN,J.
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A.S.No.385/1995 & 462
of 1994
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Dated, this the 24th day of October, 2013
JUDGMENT
These two appeals arise from a common judgment passed by the learned Sub Judge, Tirur by which two suits namely, O.S.44/91 and 45/91, both of them, after trial, were dismissed. Plaintiffs/plaintiff in the respective suit have filed the appeals against the decree of dismissal passed in the suits.
2. Plaintiff in O.S.45/91 has filed the appeal AS 385/95, and the plaintiffs in O.S.44/91 the other appeal, A.S.462/94. Appeal against the decree of dismissal in O.S.45/91 was filed before the District Court, Manjeri, and that was later called for to this Court A.S.385/95 & 462/94 2 and renumbered as A.S.385/1995 for consideration along with the connected appeal, A.S.462 of 1994.
3. Though the disputes involved in the two suits are interlinked, to have better appreciation, it is necessary to set out the plaint claim in the respective suit separately. O.S.44/91 was a suit for partition, and the other O.S.45/91 a suit for injunction and damages. Plaintiffs, three in number, in O.S.44/91 claimed partition of the property scheduled as IIB in their plaint. Those properties admittedly belonged to one Janaky Amma who obtained the same under the final decree passed in a previous suit for partition, O.S.62/1959 of Sub Court, Kozhikode. That suit for partition was instituted by the father of plaintiffs, namely, Padmanabhan Nair against Janaky Amma and her two sisters as defendants. After passing of the final decree in that suit both Padmanabhan Nair and Janaky Amma had passed away. Janaky Amma died without leaving husband or children and, thereby, plaintiffs, children A.S.385/95 & 462/94 3 Padmanabhan Nair, and defendants 1 and 2 succeeded to her estate was the case of plaintiffs to claim 1/3rd share for all of them together in the plaint property described as IIB schedule. Notice issued by plaintiffs demanding partition was responded by defendants setting forth contentions that Janaky Amma had executed two assignment deeds in respect of her properties, Ext.B1 and B4 deeds, in favour of third and fourth defendants respectively. Those defendants were enjoying the properties assigned under oral lease given by Janaky Amma and recognising their possession as lessees respective property covered by the deeds was assigned in their favour was the further objection raised in the reply resisting the claim for partition. Plaintiffs in their suit contended that the oral lease alleged by defendants is not true and the assignment deeds executed are sham documents. Resisting the suit claim for partition defendants 1, 3 and 4 filed a joint written statement reiterating the contentions canvassed by them in A.S.385/95 & 462/94 4 their reply notice referred to earlier. Janaky Amma had orally leased out 12 acres of property in favour of third defendant and 11 acres 70 cents of property in favour of the fourth defendant, both of them in 1961, and later she executed Exts.B3 and B4 sale deeds in favour of the above defendants assigning the properties enjoyed by them as lessees receiving valuable consideration from them was the case of defendants. In the written statement properties obtained by defendants 3 and 4 were scheduled as item No.1 and 2 respectively. They also disputed the right of plaintiffs to seek share in the properties of Janaky Amma.
4. O.S.45/91 was a suit for injunction and damages. Plaintiff in the suit is the third defendant in O.S.44/91, and the subject matter of that suit was the property covered by Ext.B3 sale deed, which was described as item No.1 property in the written statement of defendants in O.S.44/91. The defendants in O.S.No.45/91 are the plaintiffs in O.S.44/91 and also some assignees in whose A.S.385/95 & 462/94 5 favour sale deeds had been executed by Padmanabhan Nair over some properties involved in the previous suit for partition O.S.62/1959. Plaintiff in O.S.45/91 alleged that the defendants after committing trespass had cut down some of the trees from the plaint property, for which he claimed damages of Rs.1000/-. To prevent the defendants from committing further mischief and also interfering with his possession and enjoyment over the plaint property a decree of injunction was applied for in the suit. Defendants, all of them together, resisted the suit disputing the title and possession of plaintiff claimed under Ext.B3 deed, and also challenging the description of plaint property. They also contended that some of the defendants (defendants 1 to 3 in the suit) are co-owners of the property as among the successors entitled to share in the estate left behind by Janaky Amma. Repudiating the allegation of trespass these defendants contended that they have cut and removed the trees as of right, and that A.S.385/95 & 462/94 6 the plaintiff is not entitled to the decree of injunction and also damages.
5. Appreciating the evidence let in the two suits and adjudicating the issues framed on the pleadings of parties, learned Sub Judge negatived the claims set up by plaintiff/plaintiffs in the respective suits and both suit were dismissed. Aggrieved by the decision rendered under the common judgment dismissing the suits the respective plaintiff/plaintiffs in the suits have filed these appeals.
6. I heard the counsel on both sides.
O.S.44/91 suit for partition was treated as the main case by the trial court in which parties had let in evidence. Dismissal of that suit is challenged in A.S.462/94. Assailing the decree of dismissal rendered in O.S.44/91 learned counsel for the appellants/plaintiffs in that suit has raised twofold contentions. Final decree in the previous suit for partition instituted by the predecessor of plaintiffs, namely, Padmanabhan Nair, was A.S.385/95 & 462/94 7 passed only on 18.3.1978, and, till then, no case of oral lease was claimed or canvassed in that suit by Janaky Amma and defendants 3 and 4 in the present suit and in the final decree passed no reservation recognising such oral leases was made, according to counsel. After commencement of the Kerala Land Reforms Act jenm rights over the lease claimed could not have been assigned by the jenmi Janaky Amma in favour of third and fourth defendants under Exts.B3 and B4 deeds and as such those documents are invalid and inoperative. The next ground of attack canvassed by the counsel was that under the decree passed in the previous suit 35 acres 10 cents was allotted to the share of Janaky Amma. Exts.B3 and B4 assignment deeds, both of them together,covered only an extent of 23 acres 70 cents. Even if those deeds are accepted as valid,over the remaining property allotted to Janaky Amma plaintiffs are entitled to claim share and as such dismissal of their suit O.S.No.44/91, in its entirety, by the trial court was wrong and A.S.385/95 & 462/94 8 unsustainable.
7. After looking into the judgment and also the materials covered by the case, I find no merit in the challenges canvassed over the dismissal of O.S.44/91, suit for partition. In the previous suit for partition O.S.62/59 Janaki Amma, and also third and fourth defendants, had not set up any case of oral lease stated in Exts.B3 and B4 sale deeds would no way assist the plaintiffs to impeach the validity of such deeds. Exts.B3 and B4 sale deeds are admittedly executed by Janaky Amma. In such deeds she recognised previous possession of assignees as lessees under oral leases made in their favour does not postulate that the assignees were her tenants and on coming into force of the Land Reforms Act the lands vested in the Government. Properties covered by Exts.B3 and B4 assignment deeds were involved in O.S.62/59. In the final decree passed in that suit those properties formed part of the allotment made towards the share of Janaky Amma. Even before A.S.385/95 & 462/94 9 passing of final decree she executed Exts.B3 and B4 assignment deeds in favour of third and fourth defendants respectively. As a co-owner she was fully entitled to alienate her rights in the joint property in favour of any other person, even during the pendency of the suit. But the assignee on such transfer cannot claim any specific portion in the joint property, but has to limit his claim to the allotment of the assignor. When under the final decree passed in the suit properties covered under Exts.B3 and B4 formed part of the property allotted to Janaky Amma whatever rights she obtained under the decree over those properties passed on to the assignees, third and fourth defendants. In Exts. B3 and B4 assignment deeds previous possession over the land assigned with the assignees was traced to oral leases made in their favour will no way impeach the validity of the assignment deeds nor the transfer of rights over the properties made in favour of the assignees. Execution of Exts.B3 and B4 deeds in favour of third and fourth A.S.385/95 & 462/94 10 defendants by Janaky Amma which is admitted is challenged on the ground that she was influenced by the defendants for effecting such transfer. That challenge canvassed to impeach Exts.B3 and B4 as sham documents has no merit where Exts.B3 and B4 deeds are found to be valid and duly executed by the title holder Janaky Amma. Plaintiffs are incompetent to impeach such deeds on the ground that she had recognised previous possession of the assignees of the properties transferred under an oral lease made by her in their favour. Janaky Amma had absolute right to alienate her property and the properties covered by Exts.B3 and B4 was also allotted to her in the final decree in O.S.62/59. When that be so, the deeds executed by her in favour of the third and fourth defendants cannot be assailed for the reason that in the suit for partition the oral lease made in favour of third and fourth defendants was not asserted nor any claim on such lease was canvassed by third and fourth defendants in that suit. Any claim based on A.S.385/95 & 462/94 11 oral lease or otherwise over properties covered by Exts.B3 and B4 where such properties were later allotted in favour of Janaky Amma can be agitated only by the parties to such lease and not by strangers, that too in a different suit or proceeding. Final decree passed in O.S.62/59 is binding on the plaintiffs in O.S.44/91, and the decree passed in that suit Janakly Amma got absolute right over the properties covered by Exts.B3 and B4 deeds. In the assignment deeds Exts.B3 and B4 executed in favour of third and fourth defendants respectively the assignees were stated to be in possession of the land as under the oral lease given in their favour at an earlier point of time would no way show that the assignments made violate the provisions of the Land Reforms Act. Even assuming that by virtue of the oral lease the land vested with the government the assignees can claim fixity of tenure provided they do not have land beyond ceiling limit. In Exts.B3 and B4 deeds reference of previous possession under A.S.385/95 & 462/94 12 oral leases the assignees had been made mention of would no way assist the appellants to claim any right over the properties when such deeds of transfer had been duly executed by Janaky Amma, the title holder.
8. Excluding the properties covered by Exts.B3 and B4 deeds, if they are found to be valid and operative, still, plaintiffs are entitled to get share in the rest of the property which belonged to Janaky Amma, scheduled as IIB in the plaint, was another contention to assail the decree of dismissal of the suit. On the materials placed it is seen that the court below has found that some of the properties allotted to Janaky Amma excluding the properties covered by Exts.B3 and B4 deeds were brought to sale by the predecessor of the plaintiffs, to realise the mesne profits awarded to him in O.S.62/59. What are the properties which were sold have not been described in the suit. Further more the rest of the properties of Janaky Amma excluding properties covered by Exts.B3 and A.S.385/95 & 462/94 13 B4 sale deeds is under the possession of strangers who have not been impleaded as parties to the suit. Learned Sub Judge has correctly observed that such properties under the possession of strangers are not available for partition even if plaintiffs have any right unless the strangers in possession are made parties and recovery of possession sought for. There is no merit in the challenge canvassed that the claim of the plaintiffs over the rest of plaint property excluding Exts.B3 and B4 assignment deeds has not been appreciated and considered by the court below. Plaintiffs have not established that over the rest of plaint property in IIB schedule after excluding Exts.B3 and B4 deeds they have subsisting partible right as co-owners. Partition is an incident to the co-ownership of property and unless it is shown that the parties have right to the property as co-owner, no decree for partition can be claimed. Dismissal of O.S.44/91 by the court below is found to be proper, valid and unassailable and the appeal A.S.385/95 & 462/94 14 (A.S.No.462/94) challenging the decree of dismissal is devoid of any merit.
9.So far as the other appeal( A.S.385/95) arising from the decree of dismissal rendered in O.S.45/91 no sustainable ground was shown to impeach the correctness of the findings made by the court below that the plaintiffs in the suit have not substantiated their claim for a decree of injunction and damages. A commission was taken out in the suit to identify the property. Ext.C2 plan so prepared by the commissioner was compared with Ext.B2 plan in O.S.62/59. Plaint property formed part of the property allotted to Janaky Amma under Exts.A1 and A2 of Ext. B2 plan. On such comparison of the two plans the court below came to the conclusion that the entire plaint schedule property identified in Ext.C2 plan was not alloted to the share of Janaky Amma in Ext.B2 plan. Finding so rendered by the learned Sub Judge has not been impeached before me as incorrect. Leaving that question it is also noticed that the decree of A.S.385/95 & 462/94 15 injunction has been claimed alleging that committing trespass upon the property trees were cut and removed. Where plaintiff has not established his exclusive possession over the property and suit was instituted after trespass upon the property a decree of injunction cannot be passed in his favour. With respect to the claim for damages canvassed by plaintiff also the court below has held that he has not substantiated that case with convincing evidence. He has failed to prove that the trees were cut from his property, and also the quantum of damages sustained. When that be so, the dismissal of O.S.45/91 by the court below does not warrant any interference.
Both the appeals A.S.385/95 and A.S.462/94 are dismissed directing the parties to suffer their costs.
Sd/-
S.S.SATHEESACHANDRAN JUDGE tpl/-
A.S.385/95 & 462/94 16 S.S.SATHEESACHANDRAN,J. ----------------------- A.S.No.385 of 1995 & 462 of 1994 ----------------------- JUDGMENT 24th October,2013