Kerala High Court
Poosari Gouri vs Balakrishnan P on 8 July, 2011
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 164 of 2005()
1. POOSARI GOURI, W/O.VASUDEVAN, RESIDING
... Petitioner
2. BABU RAJENDRA PRASAD, RESIDING AT DO.DO.
3. VIJAYALAKSHMI ALIAS JAYAMMA, RESIDING
4. USHA, RESIDING AT DO.DO.
5. SREEJA, RESIDING AT DO.DO.
6. BHAGAVAN PRASAD, RESIDING AT DO.DO.
Vs
1. BALAKRISHNAN P., POOSARI HOUSE,
... Respondent
2. P.PUSHPALATHA, C/O.P.BALAKRISHNAN,
3. RADHAKRISHNAN, SPINNER, RESIDING AT
4. NARAYANI, R/AT DO.DO.
5. P.PREMALATHA, D/O.LAKSHMANAN,
6. SISTER SHAKUNTHALA, RESIDING AT
7. SISTER NALINI BAI, NURSE,
8. EERAYI SUJA, D/O.KOUSALLIA,
9. PARAPRATH JAYASREE,
10. CHAKKAPOYYAN PADMAJA,
11. CHAKKAPOYYAN MALLIKA,
12. CHAKKAPOYYAN NISHA BABY,
13. POOSARI AMMA, W/O.KRISHNAN,
14. N.C.SEETHAMMA, D/O.KRISHNAN,
15. N.C.GANESHAN, S/O.KRISHNAN,
16. N.C.PRAKASHAN, S/O.KRISHNAN,
17. N.C.VIJAYALAKSHMI,
18. PUSHPA, D/O.KRISHNAN, RESIDING AT DO.DO.
19. MANOJ KUMAR, S/O.KRISHNAN, RESIDING
20. RAJAMMA, W/O.N.C.NARAYANAN,
21. N.C.HARIHARAN, S/O.N.C.NARAYANAN,
22. THARA, D/O.DO.DO.DO.
23. BINDU ALIAS INDIRA, D/O.DO.DO.DO.
24. VARUN, DO.DO.DO.
25. ANION, S/O.NARAYANAN, DO.DO.DO.
26. UNNI, S/O.DO.DO.
27. VENUGOPAL P.,
28. PUSHPA P., D/O.LATE KRISHNAN WARDR,
29. JAYASREE POOSARI, D/O.DO.DO.DO.
30. POOSARI NARAYANAN, S/O.POOSARI GOVINDAN,
31. POOSARI RAMAN,
32. ANNAMALA SREEDEVI, D/O.DO.
33. POOSARI AKHIL, S/O.POOSARI KRISHNAN,
34. POOSARI ANJU (MINOR),
35. POOSARI BALAGOPALAN,
36. SEETHALAKSHMI, W/O.N.C.VELAYUDHAN,
37. N.C. VARUN, S/O.N.C.VELAYUDHAN,
38. N.C.VIVEK, S/O.N.C.VELAYUDHAN,
39. N.C.VIPIN, S/O.N.C.VELAYUDHAN, DO.DO.
For Petitioner :SRI.M.C.SEN (SR.)
For Respondent :SRI.ANTONY MATHEW
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :08/07/2011
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A. No. 164 OF 2005
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Dated this the 8th day of July,2011
JUDGMENT
Defendants 22 and 24 to 28 in O.S.72/1982 on the file of Sub Court, Thalassery are the appellants. Plaintiffs 2 to 4, defendants 4 and 6 to 14 and 16 to 21 and legal heirs of defendants 3 and 5 and 15 are the respondents. First plaintiff and the second defendant died during the pendency of the first appeal. Plaintiffs instituted the suit for partition and separation of their shares in the plaint schedule properties. Item No.1 of the plaint schedule properties is 50 cents in R.S.No.10/1, item No.2, 61 cents in R.S.No.10/1 and item No.3 961/2 cents in R.S.No.9/4 of Puzhalur village of Kannur Taluk. Properties admittedly originally belonged to Chirakkal Kovilakam on jenm right. Under Ext.B36 registered marupat R.S.A.164/2005 2 the properties were obtained by the first defendant and mother Chinnathayi from Padinhare Pockiarath tarwad, who had kanam right under the jenmi kovilakam. Chinnathayi admittedly died in 1960. Apart from first defendant, Chinnathayi had two sons and one daughter. Defendants 1 and 2 and Lakshmanan are her sons and Savithri the daughter. When the second defendant died, defendants 22 and 24 to 28 were impleaded and defendant No.10 was recorded as his legal heirs. Lakshmanan admittedly died in 1968 and plaintiffs and defendants 6 to 8 are his legal heirs. Savithri admittedly died in 1975 and defendants 3 to 5 and deceased Krishnan were her legal heirs. Defendants 14 to 21 are the legal heirs of deceased Krishnan. Plaintiffs contended that under Ext.B36 marupat, mother Chinnathayi and the first defendant were in possession of the plaint schedule properties and on the death of Chinnathayi, her one half right devolved on her legal heirs and plaintiffs and defendants 6 to 8 are entitled to 1/4 shares over the one half share of Chinnathayi in the plaint R.S.A.164/2005 3 schedule properties and first defendant is entitled to the remaining one half share and also the 1/4 share of one half share of Chinnathayi. It was also contended that subsequent to the death of Chinnathayi, properties have been in the joint possession of the first defendant and other legal heirs of Chinnathayi, including the plaintiffs, and plaintiffs are entitled to get their 1/8 share separated with share of profits, contending that till two years prior to the institution of the suit, they were given the share of profits. First defendant filed a written statement admitting the rights under Ext.B36 registered marupat, but contending that there was an oral partition between the mother and the first defendant in 1956 and the southern portion of the properties viz R.S.10/1 was taken by the first defendant and he has been in possession of that property since then and he constructed a three roomed tiled shop building and also effected improvements and item 1 and 2 of the plaint schedule properties are therefore not available for partition as it has been in the R.S.A.164/2005 4 exclusive possession of the first defendant under the oral partition. It was also contended that if it is found that the oral partition cannot be accepted, the said properties are to be allotted to him, without valuing the improvements. First defendant contended that on the death of Chinnathayi, second defendant was managing the northern portion of the properties obtained under Ext.B36 and he is entitled to 1/4 share therein and if the oral partition is not accepted, he is entitled to 5/8 shares. Later he filed an additional written statement contending that the plaint schedule properties do not exclusively belonged to the second defendant and the properties were in his joint possession along with the mother till her death and the plea of defendants 22 to 28 that second defendant was in exclusive possession of the properties for the last 30 years and therefore the rights of others was lost by ouster and adverse possession is not correct.
2. Second defendant in his written statement contended that plaint schedule properties were R.S.A.164/2005 5 originally obtained on lease by Pockiarath tarwad from Chirakkal Kovilakam and they granted a lease in favour of Chemminiyan Koren as per registered marupat 558/1899 with liability to pay pattom of 400 Edangazhies of paddy. On the death of Koren, it was in the possession of Chemmaniyan Bappu Vaidyar, who surrendered the property under Ext.B2 registered surrender deed dated 6.2.1941. While Pockiarath tarwad was in the possession of the properties, Chinnathayi and the first defendant obtained the properties on lease for a period of four years under Ext.B36 marupat on 6.2.1941 agreeing to pay the same pattam. It was contended that though first defendant and Chinnathayi were in possession of the properties on verum kozhu right, they could not raise cultivation and failed to pay the pattam promptly and for the pattam due to Chirakkal Kovilakam, a suit was instituted by the Chirakkal Kovilakam against the karnavan of Pockiarath tarwad, first defendant and his mother Chinnathayi. Later first defendant and Chinnathayi failed to pay the pattam and therefore in Kanni R.S.A.164/2005 6 1128 M.E, the properties were surrendered to the Pockiarath Padmavathi Amma to whom the properties were allotted by the Pockiarath tarwad. It was contended that after the said surrender, second defendant obtained the properties from Padmavathi Amma under an oral lease on first Dhanu 1128 for a period of four years, with liability to pay an annual pattam of 400 Edangazhies of paddy, providing that out of that paddy 265 edangazhies of paddy are to be paid to the Kovilakam on behalf of Padmavathy Amma and the remaining is to be paid to Padmavathi Amma directly. It was contended that since 1128 Dhanu first defendant has been in exclusive possession of the plaint schedule properties as a tenant under her and neither the first defendant nor Chinnathayi has been in joint possession of the properties and the second defendant has been paying the pattam and also assessment and while so he purchased the jenm right from the Land Tribunal under Ext.B3 order of the Land Tribunal, Kannur in O.A.477/70. Ext.B4 purchase certificate was also issued to him. It R.S.A.164/2005 7 was contended that therefore second defendant alone has right to the plaint schedule properties and they are not available for partition. It was also contended that while the second defendant has been in possession of the properties, first defendant was permitted to construct a shop building on the southern portion of the properties in 1964 and first defendant has no right over the remaining portion of the properties. Later five cents, being the south eastern portion of the properties was assigned by the second defendant to 'Cannanore Ceramics' as per registered sale deed dated 11.2.1982. Defendants 9 to 13 are the partners. The said five cents are not in the possession of the second defendant. It was also contended that the second defendant is not liable to pay any share of profits. The wife and children of deceased Krishnan, brother of defendants 3 to 5, are necessary parties and the plaintiffs are not entitled to any share. Second defendant later filed an additional written statement contending that defendants 14 to 21 the legal heirs of R.S.A.164/2005 8 Krishnan who were later impleaded, also had no right or possession to the plaint schedule properties and therefore they are not entitled to any share.
3. Defendants 3 to 5 filed a joint written statement admitting the rights under Ext.B36 marupat and contending that in 1956 the properties were already divided by Chinnathayi and first defendant and first defendant has been in possession of the southern portion exclusively and the northern portion was in the possession of Chinnathayi and it is available for partition between the legal heirs of Chinnathayi and they are entitled to get 1/4 share in item No.3 of the plaint schedule properties, being the legal heirs of deceased Savithri and item No.1 and 2 of the plaint schedule properties are not available for partition. Defendants 6 to 8 filed a joint written statement admitting the plaint allegations and claiming 1/8 share. Defendants 9 to 13 filed a joint written statement adopting the contentions of the second defendant. Defendant 14 to 21 filed a R.S.A.164/2005 9 written statement claiming 1/8 share due to Krishnan namely 1/32 shares. Defendants 3 to 8 and 14 to 21 filed a written statement contending that second defendant had no exclusive right and the plea of ouster and adverse possession is not sustainable.
4. Defendants 22 to 28, after they were impleaded as legal heirs of the second defendant, filed a written statement adopting the contentions raised by the second defendant. Later the written statement was got amended inserting a plea of ouster and adverse possession contending that second defendant has been in exclusive possession of the plaint schedule properties openly and uninterruptedly for a period of more than 30 years ousting the rights, if any, of the plaintiffs and other defendants.
5. Learned Sub Judge referred the claim for tenancy raised by the second defendant to the Land Tribunal under section 125(3) of the Kerala Land Reforms Act. Land Tribunal rendered a finding that the second defendant is a cultivating tenant R.S.A.164/2005 10 entitle to fixity of tenure. As the Sub Judge is bound by the said finding, it was accepted and the suit was dismissed. Plaintiffs challenged the judgment before District Court, Thalassery in A.S.214/1989. Learned District Judge on reappreciation of the evidence found that reference to the Land Tribunal was uncalled for as second defendant was not claiming tenancy from the ancestors of any of the co-owners and the actual dispute is whether there was a separate entrustment in favour of the second defendant and whether there was a surrender of Ext.B36 lease. Learned District Judge on the evidence found that there is no evidence to prove the surrender or a subsequent oral lease and therefore held that the plaint schedule properties have been in the possession of the first defendant and Chinnathayi under Ext.B36 lease and they continued in the joint possession of the legal heirs of Chinnathayi and the first defendant, and therefore plaintiffs, second defendant, the legal heirs of Savithri and Lakshmanan are entitled to their shares. A R.S.A.164/2005 11 preliminary decree was passed. It was challenged before this court in S.A.566/1992. This court as per judgment dated 10.12.2003 set aside the judgment of the learned District Judge holding that first appellate court was not justified in ignoring the findings of the Land Tribunal and when there was reference under section 125(3) of the Kerala Land Reforms Act and the findings forms part of the finding of the trial court, first appellate court though competent to set aside, modify or vary the findings, is bound to consider the findings and directed the first appellate court to dispose of the appeal afresh. Learned District Judge thereafter by judgment dated 27.10.2004, allowed the first appeal and passed a preliminary decree holding that plaint schedule properties are available for partition and they are to be divided into eight equal shares and the legal heirs of the first defendant are entitled to five shares and plaintiffs and defendants 6 to 8 together are entitled to one share and defendants 3 to 5 and 14 to 21 together are entitled to one share and R.S.A.164/2005 12 defendants 22 to 28 (must be defendants 10 and 22 to 28) jointly are entitled to one share and five cents assigned by the second defendant is to be allotted to the share of defendants 22 to 28 and the reservation claimed is to be decided in the final decree proceedings. The said judgment is challenged by the legal heirs of deceased second defendant in this appeal.
6. The second appeal was admitted formulating the following substantial questions of law.
1) Is the lower appellate court having found that Exts.B3 and B4 are not vitiated by fraud or collusion justified in holding that the half right of the first defendant was available for partition?
(ii) Are not Exts.B3 and B4 in the facts and circumstances of the case conclusive in view of Section R.S.A.164/2005 13 72 K of the K.L.R Act?
(iii) Is not the conduct of the first defendant in having not applied for the assignment of the jenmi's right in respect of the plaint schedule properties while applying for and obtaining certificate of purchase in respect of other items of properties held by him under the jenmi relevant to indicate that he did not exercise any manner of right over the properties in dispute?
(iv) Does not the receipt of the land acquisition compensation by the 2nd defendant in respect of a portion of the plaint schedule property to the R.S.A.164/2005 14 exclusion of the first defendant and plaintiffs fortify the contentions of the 2nd defendant?
v) When admittedly the demand for a share by the plaintiffs was not acceded to by the 2nd defendant after the death of Govindan, the father of the plaintiffs in the year 1968, is not the plea of adverse possession and ouster set up by the 2nd defendant proved since the suit has been filed only 12 years thereafter?
7. Learned senior counsel, Sri.M.C. Sen appearing for the appellants Sri.Gopikrishnan Nambiar appearing for respondents 9 to 13 who supports the appellants, and Sri.O.Ramachandran Nambiar, learned counsel appearing for the contesting respondents were heard.
8. Learned senior counsel appearing for the R.S.A.164/2005 15 appellants argued that first appellate court grossly erred in appreciating the evidence and also the law. Learned counsel relying on the decision of the Apex Court in Chandy Varghese v. Abdul Khader (2003(3) KLT 553)argued that Ext.B4 purchase certificate conclusively establish the independent title of the appellants and the first appellate court was not justified in considering the correctness of the oral lease, in the light of the purchase certificate, in view of Section 72K of Kerala Land Reforms Act. Learned counsel also argued that Land Tribunal on a reference under section 125(3) of Kerala Land Reforms Act, based on the evidence, entered a factual finding that second respondent was the cultivating tenant entitled to fixity of tenure and the said finding should not have been reversed in the light of Ext.B3 purchase certificate and Ext.B4 order of the Land Tribunal which has become final. Learned counsel also argued that though the surrender of Ext.B36 lease obtained by the first defendant and the mother was not evidenced by any documentary evidence, the R.S.A.164/2005 16 evidence and the attending circumstances establish the surrender and a subsequent lease in favour of the second defendant. Learned senior counsel pointed out that under Ext.B1, Padmavathi Amma who was examined as DW1, obtained the intermediary right of Padinhare Pockiarath tarwad and her evidence establish the oral surrender as well as the oral lease and the fact that subsequent to 1952 the pattam was being paid by the second defendant and he has been paying the basic tax from 1969 onwards would establish that there was a surrender of the original lease in favour of the first defendant and the mother and a subsequent oral lease in favour of the second defendant. Learned senior counsel also argued that payment of the pattam to the ultimate jenmi kovilakam is proved as Ext. B9 to B12 receipts were obtained by the second defendant from the kovilakam and they establish that subsequent to the oral lease of 1952 it was the second defendant who was paying the pattam and in such circumstances first appellate court should have upheld the defence case that Ext.B36 lease R.S.A.164/2005 17 obtained by the first defendant and Chinnathayi was surrendered in 1952 and when DW1 Padmavathi Amma was in possession of the properties second defendant obtained the properties on oral lease in 1952 and since then he has been in exclusive possession and enjoyment of the properties and neither first defendant nor the legal heirs of Lakshmanan or Savithri are entitled to any share.
Learned senior counsel argued that the admitted fact that under Ext.B8 partition deed entered into by Chinnathayi and her children, the joint properties were divided and plaint schedule properties are not included therein would establish that all the joint properties were divided and if the plaint schedule properties were outstanding under Ext.B36 lease, they also would have been divided at the time of Ext.B8 partition and it also probabilise the case of exclusive possession and enjoyment by the second defendant under the oral lease of 1952. Learned senior counsel argued that Ext.B5 notice issued under section 3 of the Kerala Land Acquisition Act for Pazhassi Project R.S.A.164/2005 18 only to the second defendant and compensation was received by the second defendant alone would further establish that second defendant alone is having right over the plaint schedule properties. It was argued that first defendant was permitted to construct a shop building by the second defendant on the southern portion of the properties and he is in possession of that portion alone and he has not been in possession of the remaining portion of the plaint schedule properties and therefore it is to be found that plaint schedule properties are not available for partition. Learned counsel then argued that in any case, even if it is to be found that Ext.B36 lease was subsisting and the respondents are co-owners, as the evidence establish that second defendant has been in exclusive possession and enjoyment of the properties, the title of the co-owners was lost by ouster and adverse possession. It was pointed out that evidence of PW1 establish that subsequent to the death of the mother in 1960, second defendant denied the rights of the plaintiffs and was R.S.A.164/2005 19 asserting his independent right and has been in exclusive possession of the properties and therefore there was ouster and adverse possession and on that ground also, it is to be found that plaint schedule properties are not available for partition. Learned counsel appearing for respondents 9 to 13 reiterated the same arguments.
9. Learned counsel appearing for the contesting respondents pointed out that Ext.B36 lease was created under a registered document and therefore if there was any surrender of the lease, it would have been evidenced by a registered surrender deed as is the case with the surrender by the earlier tenant evidenced by Ext.B2 and there is no evidence to prove the surrender of Ext.B36 lease. Learned counsel relying on Section 114(d) of Indian Evidence Act and the decisions of the Apex Court in Nathoo Lal v. Durga Prasad (AIR 1954 SC 355), Ambika Prasad Thakur v. Ram Ekbal Rai (AIR 1966 SC
605) argued that the possession proved under Ext.B36 is presumed to be continued. The argument is that if a thing or a state of things is shown to R.S.A.164/2005 20 exist, an inference of its continuity within a reasonably proximate time, both forward and backwards could be drawn. Learned counsel also pointed out that evidence of DW1 does not establish either an oral surrender by the first defendant and Chinnathayi or a subsequent oral lease in favour of second defendant,as according to DW1 she has no personal knowledge of the alleged oral surrender or subsequent oral lease. Learned counsel pointed out that till 1960, when mother Chinnathayi died, the property has been in the joint possession of first defendant and Chinnathayi and on the death of Chinnathayi, her rights devolved on all her children including the second defendant and therefore possession of the second defendant subsequent to 1960 could only be as a co-owner and for and on behalf of all the co-owners. Learned counsel also pointed out that though second defendant contended that there was an oral lease obtained from Padmavathi Amma, no rent receipt was produced to establish payment of pattam to Padmavathi Amma and the rent receipts produced R.S.A.164/2005 21 evidence payment of pattam to the ultimate jenmi payable by Padmavathi Amma and even if the amounts were paid by the second defendant, it could only be for and on behalf of Chinnathayi and first defendant and will not establish either a surrender or a subsequent oral lease. Learned counsel argued that the question of a subsequent oral lease would arise, only if there was an earlier surrender and when there is no evidence to prove the surrender, the alleged oral lease must necessarily fall. Relying on the decisions of the Honourable Supreme Court in L.N.Aswathama and another v. P. Prakash (2009) 13 SCC 229), MD.Mohammad Ali v. Jagadish Kalita and others (2004)1 SCC 271), Darshan Singh v. Gujjar Singh(2002) 2 SCC 62), Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri (2000) 6 SCC 735), Annasaheb Bapusaheb Patil v. Balwant alias Balasaheb Babusaheb Patil(AIR 1995 SC
895) and Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan(2008(4) KLT 357) learned counsel argued that plea of adverse possession will not lie. Learned counsel pointed out that second R.S.A.164/2005 22 defendant either in the original written statement or in the additional written statement, did not raise a plea of ouster and adverse possession and the plea of ouster and adverse possession was raised for the first time at a later stage by the appellants who were impleaded as the legal heirs of deceased second defendant. Learned counsel argued that when there is no case for the second defendant that there was any ouster or adverse possession, it is clear that he had no animus possidendi, to hold the properties against the other co-owners and therefore the plea of ouster and adverse possession raised by the appellants could only be rejected. Learned counsel also argued that Ext.B3 order of the Land Tribunal and Ext.B4 purchase certificate also will not establish any exclusive right of the second defendant. The argument is that being a co-owner when second defendant obtained a purchase certificate, it shall enure to the benefit of not only the second defendant but all the co-owners and based on the purchase certificate, second defendant cannot set R.S.A.164/2005 23 up any exclusive right. The argument is that when there is no evidence to prove the oral lease set up by the second defendant and instead the evidence establish that there was no oral surrender, there could not have been an oral lease in favour of the second defendant and the independent claim for tenancy right by the second defendant will not lie and Ext.B4 would enure to the benefit of all the co-owners. It was also pointed out that Ext.B3 order was passed without notice to all the co- owners and the purchase certificate was obtained committing fraud on the Tribunal, if it was obtained by the second defendant on his name alone claimed on a lease in his favour, the order is a nullity. The argument is that if the case is that second defendant obtained exclusive title under Ext.B4 purchase certificate, Ext.B4 purchase certificate would be vitiated by fraud as according to the learned counsel, fraud was committed on the Tribunal by setting up an independent exclusive title when to the knowledge of the second defendant, there was no such lease, suppressing the R.S.A.164/2005 24 registered lease in favour of his mother and the first defendant and therefore second defendant cannot set up any right based on Ext.B3 and B4 and first appellate court rightly found that plaint schedule properties are available for partition and they are to be divided. Reliance was placed on the following decisions in V.V.Janaki v. P.P.Paru (AIR 1986 Kerala 110), Kundathodi Saidali v. Kappil Amina Umma and another (1984 KLJ 764), Kunhambu Nair v. Kunhammaru Amma & Others (1973 KLT 1048), Sharada v. Narayanan (1979 KLT SN 69 Case No.151), George v. State of Kerala (1987(1) KLT SN 50 Case No.67) Shahul Hameed v. Lakshmi (1987(1) KLT SN 17 Case No. 31), Kunhi v. Ammu Amma(1990(2) KLT SN 49 Case No.68) Kochu Lakshmi v. Velayudhan (1981 KLT 639), Mohammed Koya v. Bichikoya (ILR 2004(2) Kerala 223).
10. All the parties are admitting that the plaint schedule properties originally belonged to Chirakkal kovilakam and they were outstanding in the possession of the first defendant and R.S.A.164/2005 25 Chinnathayi under Ext.B36 registered marupat dated 6.2.1941. The said lease was granted by Padinhare Pockiarath tarwad, who in turn was holding the lease-hold right under Chirakkal Kovilakam. When the plaintiffs and the supporting defendants contended that Ext.B36 lease continued and the first defendant and Chinnathayi, the lessees under the lease, were in joint possession of the property till 1960 when Chinnathayi died and her one half right devolved on all the children and they were in joint possession and therefore plaint schedule properties are available for partition, appellants and the supporting defendants contended that Ext.B36 lease was later surrendered by Chinnathayi and the first defendant in 1952 and thereafter the properties were obtained by the second defendant under an oral lease from Padmavathy Amma. It cannot be disputed that the oral lease set up by the second defendant, could only be accepted, if there was a surrender of Ext.B36 lease. Ext.B36 establishes that the property covered under Ext.B36 lease was R.S.A.164/2005 26 outstanding in the possession of Chemmaniyan Bappu Vydiar, who surrendered the lease under Ext.B2 registered surrender deed in favour of Padmavathi Amma. Ext.B2 establishes that, the lease surrendered thereunder was the one obtained by Bappu Vaidyar for a period of four years under registered marupat 558 of 1899. Ext.B2 with Ext.B36 would establish that even in 1899 when a marupat was granted in favour of Bappu Vydiar it was granted under a registered deed and later when the lease was surrendered on 6.2.1941 it was also by a registered surrender deed. Later when the properties were granted on lease in favour of the first defendant and Chinnathayi, it was also under Ext.B36 registered marupat executed. It is thus absolutely clear that Padinhare Pockiarath tarwad was granting lease and obtaining surrender of the lease only by registered documents. If that be the case, if there was a surrender of Ext.B36 lease in 1952, as claimed by the second defendant, it would have been only by a registered surrender deed. The very fact that there is no case for the second R.S.A.164/2005 27 defendant that Ext.B36 lease was surrendered by a registered document, it is clear that there was no such surrender. Moreover, in view of section 42 of the Malabar Tenancy Act a surrender of the lease could only be by a registered document. Section 42 reads:-
42. Surrender of holdings--A kanamdar, kanam-kuzhikanamdar, kuzhikanamdar, customary verumpattamdar or cultivating verumpattamdar may, at the end of any agricultural year, surrender his holding to his immediate landlord, by a registered document.
Such a landlord shall not be bound to accept the surrender unless notice has been given in writing to him by the tenant of R.S.A.164/2005 28 his intention to do so three months prior to the date of the expiry of the agricultural year, and unless it be in respect of the entire holding. Nor shall the landlord be bound to refund the kanartham or to pay the value of the improvements which he would have been otherwise bound to pay under the Improvements Act. The tenant shall, after the surrender, remain personally liable for the arrears of rent, if any, payable by him in respect of the holding but he shall be entitled to set off against such arrears the kanartham and R.S.A.164/2005 29 the value of the improvements, if any, made by him in the holding.
When the Malabar Tenancy Act mandates that there cannot be a surrender of the kuzhikanam right by a tenant in favour of the landlord other than by a registered document and a landlord is not competent to accept the surrender except by a registered document, it is futile for the appellants to contend that there was an oral surrender of Ext.B36 lease. Though the learned senior counsel appearing for the appellants and the counsel appearing for the supporting respondents vehemently argued that continuous possession of the second defendant and payment of pattam by the second defendant, eventhough Lakshmanan was the eldest son of Chinnathayi, would establish that there was a surrender of lease and a creation of an independent lease in favour of the second defendant, on the facts, I cannot agree. When the properties were obtained by Chinnathayi, even if the pattam payable to the landlord was paid by one R.S.A.164/2005 30 of the sons and not by the mother or the son who obtained the properties along with the mother, under the registered marupat, it cannot be said that the payment made by the other son was under a separate lease and not for and on behalf of the mother. When the pattam is payable by the mother as well as one of the sons, there is nothing unusual in one of the sons obtaining receipts for payment of pattam. It could only be treated as a payment made by the tenant under Ext.B36 and not for an independent lease. As rightly pointed out by the learned counsel appearing for the contesting respondents, eventhough the second defendant examined DW1,the landlady, her evidence only establishes that she has no personal knowledge with regard to either the alleged surrender or the alleged oral lease. Her evidence is that it was all done by her husband. It is clear from her evidence that she has given evidence only to support the second defendant due to her closeness with the wife of the second defendant. Added to this, Ext.B26 and B37 levy notices produced by the R.S.A.164/2005 31 first defendant also disprove the alleged surrender. Ext.B26 notice was served on the first defendant directing him to pay the levy in respect of 3.15 acres of paddy land, which includes item No.1 of the plaint schedule properties namely 85 cents in Survey No.10/1. That notice was dated 26.10.65. Ext.B37 is another similar notice obtained by the first defendant on 15.9.1966 directing to pay levy in respect of 3.33 acres including 73 cents in Sy.No.9/4 and 80 cents in Sy.No.10/1 which are admittedly the plaint schedule properties. Both the notices were issued under Order 4 of the Kerala Paddy Levy Collection Order. Learned counsel appearing for the appellants argued that though levy notices were produced, no receipt for payment of levy was produced and therefore based on the notices it cannot be found that first defendant was in possession of the properties. True, no receipt is produced to prove that levy as demanded under Ext.B26 and B37 notices were paid by the first defendant. But the second defendant has no case R.S.A.164/2005 32 that he had received any such notice directing him to measure paddy in respect of plaint schedule properties. When those notices were issued based on the cultivation register prepared by the Village Officer, as the records show that first defendant was cultivating those paddy fields, Ext.B26 and B37 would definitely establish that even after 1952 first defendant has been in possession of the properties, which will not be the case if there was a surrender and a fresh oral lease in 1952 as claimed by the second defendant. It is also pertinent to note that the fact that first defendant constructed a shop building on the southern portion of the plaint schedule properties was not disputed. First defendant in his written statement contended that the shop building was constructed in 1957 by him. Though it was deposed by DW4, who was examined on behalf of the contesting defendants that the shop building was constructed in 1964, as pleaded by the second defendant in the additional written statement, the evidence of DW1 that the shop building was in R.S.A.164/2005 33 existence in 1957 was not challenged in cross examination. In such circumstances, the case of the second defendant that he permitted the first defendant to put up a shop building on the southern portion of the plaint schedule properties cannot be accepted as the alleged permission was in 1964 when the building was constructed in 1957. The case of the first defendant that he constructed the shop building in the lease hold property obtained by himself and the mother can only be accepted.
11. As rightly argued by the learned counsel appearing for the contesting respondents, when Ext.B36 lease is admitted and possession of the lessees from 1941 till 1952 is also admitted, in the absence of evidence of surrender of the lease, the presumption provided under Illustration (d) to Section 114 of Indian Evidence Act would definitely apply. As declared by the Apex Court in Ambika Prasad Thakur v. Ram Ekbal Rai (AIR 1966 SC 605)in appropriate cases, an inference of the continuity of a thing or state of things is to be taken. When there is no evidence to prove the oral surrender R.S.A.164/2005 34 which could not have been there as provided under section 42 of Malabar Tenancy Act and the evidence probabilise the continuation of the lease even during 1965 and 1966, it can only be found that there was no surrender of the lease created under Ext.B36.
12. In the light of th evidence, it can only be found that the lease created under Ext.B36 registered marupat was never surrendered and the tenancy continued till the death of Chinnathayi and their joint possession as the lessees continued till the death of Chinnathayi in 1960. On her death her half right definitely devolved on her children Lakshmanan and defendants 1 and 2 and Savithri. The finding of the first appellate court on this aspect is perfectly correct and is in accordance with the evidence.
13.Then the question is whether appellants are entitled to claim exclusive title by virtue of Ext.B4 purchase certificate obtained by the second defendant. Ext.B3 order of the Land Tribunal shows that the application before the Land Tribunal was R.S.A.164/2005 35 filed by second defendant for purchase of jenm right and Padmavathi Amma did not dispute the tenancy. When the suit was referred to the Land Tribunal under section 125(3) of Kerala Land Reforms Act, the Land Tribunal rendered a finding that "second defendant is deemed to the cultivating tenant entitled to fixity of tenure." As is clear from the findings of Land Tribunal, the case accepted by the Land Tribunal was not the alleged oral lease of 1952. Instead the finding was that second defendant is a deemed tenant as provided under section 7 of Kerala Land Reforms Act. Even second defendant has no such case. The claim for fixity of tenure set up by the second defendant could be upheld only if it was proved that there was an oral lease in his favour. Such an oral lease was possible, only if there was a surrender of Ext.B36 lease. The evidence establish that there was no such surrender. Hence the oral lease of 1952 set up by the second defendant can only be found against. If that be so, it can only be found that there was no independent lease in R.S.A.164/2005 36 favour of the second defendant. Hence he cannot claim exclusive title based on Ext.B4.
14. As rightly pointed out by the learned counsel appearing for the contesting respondents subsequent to Ext.B36 lease Chinnathayi, one of the lessees died and her right devolved on all the children including the second defendant. Therefore the purchase certificate obtained by the second defendant shall enure to the benefit of all the co- owners. In the absence of a separate lease in favour of the second defendant, when the second defendant is a co-owner, eventhough the application was filed before the Land Tribunal for purchase of jenm right, only by the second defendant and pursuant to Ext.B3 order, purchase certificate was granted in favour of the second defendant, being a co-owner it shall necessarily enure to the benefit of all the other co-owners. It is more so, when the Land Tribunal has not considered the question whether Ext.B36 lease obtained by the first respondent along with Chinnathayi was surrendered and it was also not found that the oral lease of R.S.A.164/2005 37 1952 is correct. In such circumstances, based on Ext.B4 second defendant cannot claim exclusive title to the properties.
15 .Then the only question is regarding the plea of ouster and adverse possession. When the second defendant and on his death his legal heirs are co-owners, along with the first defendant and the other children of Chinnathayi and their legal heirs, unless there is a specific plea of ouster, a mere plea of adverse possession will not be sufficient to successfully establish adverse possession against the co-owners. In law possession of a co-owner could only be treated as possession for and on behalf of the non possessing co-owners also, unless there was an ouster. Hence possession by one of the co-owners, for any number of years by itself will not constitute adverse possession unless there was ouster of the non possessing co-owner to his knowledge. Appellants were impleaded after the institution of the suit. They are claiming only the right which was available to the second defendant. Second R.S.A.164/2005 38 defendant in his written statement has no case that he has ousted the other co-owners or has been in exclusive possession of the property, with the animus possidendi as against the other co-owners. His only case is that Ext.B36 lease was surrendered in 1952 and he obtained an independent oral lease in 1952. Both the contentions were found to be untenable. Therefore possession of the second defendant could only be treated as that of one of the co-owners. When he is a co-owner, his possession, for any number of years would not operate as adverse to the other co-owners, unless there was an ouster. When the second defendant did not raise such a contention, even in the additional written statement, plea of ouster and adverse possession raised by his legal heirs and that too by an amendment to their written statement subsequently can only be rejected. In order to constitute ouster and adverse possession animus possidendi of the person who claims exclusive possession is the most important aspect. When the second defendant has no such case during his life R.S.A.164/2005 39 time, appellants the legal heirs cannot successfully plead or prove that the rights of the other co-owners have been lost by ouster and adverse possession. Eventhough they raised such a contention there is no evidence to support the plea. Though learned counsel appearing for the appellants and the supporting respondents vehemently argued that the evidence of PW1 would establish that after the death of Chinnathayi rights of the plaintiffs, the legal heirs of Lakshmanan, were denied by the second defendant and therefore there was ouster, when second defendant has no case of ouster and adverse possession, based on the evidence of PW1 alone case of ouster and adverse possession cannot be upheld. Moreover, at best, it would only operate as against the plaintiffs and not against the first defendant or the other legal heirs. There cannot be an ouster and adverse possession against one of the co-owners alone. Moreover, a proper appreciation of the evidence of PW1 would establish that PW1 did not admit that plaintiffs have demanded partition and R.S.A.164/2005 40 it was denied by the second defendant, and that too 12 years prior to the institution of the suit so as to bar their claim for partition. Added to this, evidence would establish that a portion of the plaint schedule properties is admittedly in the possession of the first defendant. Though second defendant sought to explain it by contending that the said shop building was put up by the first defendant with his permission, the evidence of DW4 who was examined on behalf of the appellants, establish that the said plea is incorrect and the building was not put up in 1964 as per the alleged permission granted by the second defendant, but in 1957. When the second defendant has no case that he had granted permission to the first defendant to put up building in 1957, the construction could not be based on the alleged permission granted. In such circumstances, on the evidence, plea of ouster and adverse possession raised by the appellants can only be found against, as has been rightly held by the first appellate court.
16.Learned District Judge passed a preliminary R.S.A.164/2005 41 decree for division of the plaint schedule properties into 8 equal shares. The one half share due to the first defendant under Ext.B36 lease and 1/4 share of one half share due to Chinnathayi as her legal heir (together five shares) due to the first defendant was declared. One share due to the legal heirs of Lakshmanan namely plaintiffs and defendants 6 to 8 and one share due to the second defendant (as second defendant died during the pendency of the suit due to the legal heirs viz defendants 22 to 28 and defendant No.10) and one share due to the legal heirs of Savithri viz defendants 3 to 5 and 14 to 21 were also declared. Learned District Judge also provided that the five cents assigned by the second defendant in favour of Cannanore Ceramics (defendants 9 to 13 being the parties)shall be allotted to the share of the legal heirs of deceased second defendant, as far as is feasible. The question of reservation was left open to be decided in the final decree proceedings. The preliminary decree is perfectly legal and correct.
R.S.A.164/2005 42
17. The substantial questions of law are answered as follows:-
Q.1 to 3:- When Ext.B4 purchase certificate was issued pursuant to Ext.B3 order of the Land Tribunal, and the claim of tenancy raised by the second defendant could only be under Ext.B36 lease, as there was no surrender of that lease and consequently there could not be an oral lease in favour of the second defendant, Ext.B4 purchase certificate could only be treated as one obtained by one co-owner which shall enure to the benefit of all the co-owners.
Q.No.(iv):- The receipt of the compensation for the acquisition of land was only subsequent to the institution of the suit and in any case it is insufficient to R.S.A.164/2005 43 prove the exclusive right claimed by the second defendant.
Q.No.(v) As found in the earlier part of the judgment, there is no evidence to prove an ouster. There is no evidence to prove a demand for partition and denial of right by the other co-owners.
Even if there is denial of right
as against one co-owner that by
itself will not establish ouster
of all the other non-possessing
co-owners. It is more so when
first defendant has been in
possession of part of the plaint
schedule properties.
I find no merit in the appeal. Appeal is
dismissed. No cost.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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/06
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JUDGMENT
SEPTEMBER,2006