Kerala High Court
Chami Alias Ramachandran vs P.V.Venugopal
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
TUESDAY, THE 7TH DAY OF AUGUST 2012/16TH SRAVANA 1934
Ex.FA.No. 31 of 2012
-----------------------
AGAINST THE ORDER DATED 23.3.2012 IN E.A.NO.590/2008 IN EP.NO.76/2008
IN OS.337/1989 of PRINCIPAL SUB COURT, PALAKKAD
APPELLANT/CLAIM PETITIONER:
-----------------------------------
CHAMI ALIAS RAMACHANDRAN
S/O.LATE CHATHAN ALIAS CHAMUNNI
RESIDING AT HOUSE NO.6/425, THUPPALAMGADU
KARIMKARAPULLY AMSOM, PALAKKAD TALUK
PALAKKAD DISTRICT.
BY ADVS.SRI.T.P.KELU NAMBIAR (SR.)
SRI.K.P.BALASUBRAMANYAN
SRI.NIRMAL. S
RESPONDENTS/RESPONDENTS:
----------------------------------
1. P.V.VENUGOPAL
S/O.P.A.VENKITESWARA IYER, ASHIRWAD, 36/363
ST.FRANCIS XAVIER, CHURCH ROAD, CHAKKAMADOM LINE
KALOOR, COCHIN-682 017.
2. P.V.KRISHNAMOORTHY
S/O.P.A.VENKITESWARA IYER, OF DO. DO.
3. P.V.RANGANAYAKI,
W/O.N.DEVARAJAN, KAITHARATHU MADOM, EDAYAZHAM
VAZHIVECHOOR, VAIKOM.
4. P.V.SEETHALAKSHMI
W/O.S.K.MANI, XX/II VANDANA, PULINCHODU STOP
ALUVA.
5. VENIKTESWARAN ALIAS D.BALAJI,
S/O.P.V.DAMODARA SARMA, ASHIRWAD, 36/363
ST.FRANCIS XAVIER CHURCH ROAD, CHAKKAMADAM LINE
KALOOR, COCHIN-682 017.
(CNTD........2)
Ex.FA.No. 31 of 2012
::2::
6. P.V.RAMAKRISHNAN,
S/O.P.A.VENIKTARAMA IYER, 18/626, TALI ROAD
KOZHIKODE.
7. P.V.JAYARAMAN,
S/O.P.A.VENKTARAMA IYER, ST.BASANTH NAGAR
CHENNAI-600 090.
8. P.V.RANGANAYAKI
W/O.LATE T.G.SAHASRANAMA IYER
THIRUNELLAYI VILLAGE P.O., PALAKKAD-20.
9. P.V.ANANTHALAKSHMI
D/O.LATE I.V.ANANTHANARAYANAN, SREENIKETHAN
1/570(1), CHASTHAPURAM VILLAGE, PALAKKAD-3.
10. P.V.RADHAMANI
W/O.R.SESHAMANI, 9/351, INDIRA NAGAR
THARUVATHARPADI, PIRAYIRI P.O., PALAKKAD-19.
11. C.R.JANAKI
W/O.LATE P.V.DAMODARA SARMA, YES TEMPLE TOWERS
THIRUVENKAN NAGAR, AMPATHOOR, CHENNAI
TAMIL NADU STATE.
12. V.D.PRAKAS
S/O.LATE P.A.VISWANATHAN, 27/33, MARUTHAM NAGAR
VADAVALLI, COIMBATORE-41.
13. V.RAMAKRISHNAN (DIED)
S/O.LATE P.A.VISWANATHAN, OF DO. DO.
14. V.MEENAKSHI,
D/O.LATE P.A.WISWANATHAN, OF DO. DO.
15. V.MEENAKSHI GRANTHI
D/O.LATE P.A.VISWANATHAN, NEW NO.16, FLAT NO.3
PAPANASAM SIVAM ROAD, SANTHOMI, CHENNAI-4.
16. VIDHYA
D/O.R.SUKUMARAN, 3/4, 4TH SECTOR
13TH STREET, K.K.NAGAR, CHENNAI.
17. T.K.RATHNA BABU
S/O.KITTA ALIAS KRISHNAN, THUPPALAMGADU ALAM
KARIGARAPULLY AMSOM, PALAKKAD TALUK
PALAKKAD DISTRICT.
(CNTD....3)
Ex.FA.No. 31 of 2012
::3::
18. T.K.MOHAN BABU
S/O.KITTA ALIAS KRISHNAN, OF DO. DO.
19. T.K.PREMAKUMARI,
D/O.KITTA ALIAS KRISHNAN OF DO. DO.
BY ADV. SRI.P.B.KRISHNAN
BY ADV. SMT.GEETHA P.MENON
BY ADV. SRI.N.AJITH
BY ADV. SRI.P.B.SUBRAMANYAN
THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON
22-06-2012 AND/ALONG WITH O.P.(C) HAVING BEEN FINALLY HEARD ON
26.7.2012, THE COURT ON 7.8.2012 DELIVERED THE FOLLOWING:
Ex.FA.No. 31 of 2012
APPELLANTS' EXHIBITS:
I.A.NO.1314/2012
EXT.A13: CERTIFIED COPY OF THE JUDGMENT IN A.S.NO.372/1981 OF THIS
COURT.
..........
ORDER ON I.A.NO.871/2012
DISMISSED.
7.8.2012 SD/- HARUN-UL-RASHID, JUDGE.
// TRUE COPY //
P.A TO JUDGE.
HARUN-UL-RASHID, J.
------------------------
Ex.F.A.No.31/2012 & O.P.(C).No.2209 Of 2012
----------------------
Dated this the 7th day of August, 2012.
J U D G M E N T
The Execution First Appeal and the Original petition are connected cases and therefore, both cases are disposed of jointly by the common judgment.
Ex.F.A.No.31/2012
The claim petitioner is the appellant. The appeal is directed against the order dated 23.3.2012 in E.A.No.590/2008 in E.P.No.76/2008 in O.S.No.337/1989 on the file of the Principal Sub Court, Palakkad. By the impugned order, the execution court dismissed the claim petition finding that the applicant failed to make out a case that he has title and possession of the decree schedule property since 1963 as claimed. The parties hereinafter are referred to as the claim petitioner and respondents as arrayed in the impugned order.
2. The claim petition was once heard and dismissed by order dated 6.7.2010. Aggrieved by the order of dismissal the claim petitioner filed Execution First Appeal No.38/2010 before this Court. This Court by judgment dated 21.10.2010 remanded the case for fresh disposal with a direction to reconsider the ::2::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 matter afresh after affording an opportunity to the parties to adduce further evidence. The impugned order was passed after taking additional evidence and after hearing both sides.
3. The appellant is the claim petitioner in E.A.No.590/2008. O.S.No.337/1989 is a suit for partition filed by respondents 12 & 13 herein as plaintiffs. Respondents 1 to 11 and 14-17 herein are the defendants in the suit. Defendants 1- 14 are the members of the plaintiffs' family. Defendant No.15 is Ratnababu. Respondents 17 (Ratnababu) & 18 herein are parties in the connected suit tried along with the present suit in which they claim to have entered into an agreement to purchase the claim schedule property. The said connected suit was dismissed and the partition suit was decreed as per the preliminary decree dated 21.10.1991. Final decree was passed by the court below on 31.10.2007 in I.A.No.139/1992. Respondents 12 & 13 herein who were allotted 2/9 shares filed execution petition No.76/2008 on 10.4.2008. The balance shares belong to the defendants, who are also members of the plaintiffs' family. The claim petition was filed on 25.7.2008.
::3::
Ex.F.A.No.31/12 & O.P(C).No.2209/12
4. The plaint schedule property in O.S.No.337/1989 is three items of properties having a total extent of 7.97 acres.
Plaint schedule property includes 3.05 acres in R.S.No.126/5, 2.64 acres in R.S.No.126/2A and 2.28 acres in R.S.No.126/2C. The claim petitioner claims right, title and interest over the entire plaint schedule properties. In the final decree proceedings, the court below demarcated the portion of the plaint schedule property allotted to the plaintiffs in the suit, who are respondents 12 & 13 in the claim petition.
5. The claim petitioner's case in short is as follows: The petition schedule properties originally belonged to P.V.Ayya Pattar, the jenmi, who is the predecessor-in-interest of the plaintiffs and defendants 1 to 14 in the suit. The three items of properties described in the schedule attached to the claim petition is outstanding on lease with one Mallu. The claim petitioner on 12.4.1963 took possession of the properties from the said Mallu as an assignee. Lease deed was written on white paper. The claim petitioner put up a thatched shed, constructed well and improved properties. He has been paying rent to Kitta @ Krishnan, who is the son of original tenant, Mallu. It is ::4::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 pleaded that with the commencement of Kerala Land Reforms Act, the rights of the jenmi and intermediary vested with the Government and the claim petitioner is entitled to purchase the right, title and interest in the properties. It is pleaded that later, the legal heirs of Kitta @ Krishnan, namely, respondents 18 & 19 assigned their right in their properties in favour of the claim petitioner as per document No.4076/2007 and rectification deed No.5721/2008. It is also pleaded that the legal heirs of jenmi, namely, respondents 1 to 16, and the legal heirs of intermediary, namely, respondents 17 to 19, manage to obtain an order in the ceiling proceedings in favour of respondents 1 to 16. The claim petitioner is not a party to the proceedings and therefore, he is not bound by the order of the Taluk Land Board in S.M.No.1270/1997. It is also contended that suppressing the fact that the claim petitioner was in actual possession of the property, the members of the jenmi family, namely, respondents 1 to 16, obtained a preliminary decree and a final decree in O.S.No.337/1989. On the basis of the said decrees, it is stated that the properties which is in the exclusive possession of the applicant was ordered to be delivered. According to the claim ::5::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 petitioner, respondents 1 to 16 have no right over any portion of the properties claimed by the petitioner and the petitioner is entitled to purchase the said property since he is a tenant entitled to fixity of tenure under the Kerala Land Reforms Act.
6. Respondents 1 to 16 denied the averments in the claim petition and sought for dismissal of the same. According to them, the claim petitioner has no right, title or possession over the decree schedule properties, that the documents relied on by the claim petitioner are all false and fabricated, that respondents 18 & 19 are not parties to the suit and therefore, they are unnecessary parties in the claim petition, that they are arrayed in the claim petition only to protract the execution proceedings, that at the time of the alleged creation of lease deed dated 12.4.1963, the claim petitioner was a minor, that the claim petition is filed in collusion with and at the instigation of respondents 17 to 19 with a view to defeat the rights of the plaintiffs and defendants in the partition suit, that the assignment deed No.4076/07 and the rectification deed 5721/08 of S.R.O., Palakkad referred to in the claim petition are created after the final disposal of the appeal by this Court on 7.3.2007, that the lease deed of 1963 was created ::6::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 and fabricated after the disposal of the said appeal, that the properties claimed by the claim petitioner was also the subject matter in the Taluk Land Board proceedings, namely, S.M.No.1270/77, that the proceedings reached up to the High Court, that the said case was answered against Kitta @ Krishnan, S/o.Mallu and that the Taluk Land Board held that the entire 7.97 acres is owned and held by the members of the jenmi family. It is stated that the claim petition is filed without bonafides and the same was filed at the instigation and in collusion with respondents 17 to 19 and it is for the benefit of the said respondents. It is also contended that the tenancy right in favour of Mallu did not include the property involved in the property claimed in the claim petition. Respondents also denied the erection of shed, construction of well, pond, installation of pump etc. It is also pleaded that the commissioner inspected the site in 1994 and submitted the report in the final decree proceedings. On inspection he could not find any improvements including the shed claimed by the claim petitioner. Respondents denied the status of the applicant as a tenant of the property and contended that the right claimed is hit by the principles of lis pendens.
::7::
Ex.F.A.No.31/12 & O.P(C).No.2209/12
7. Parties adduced oral and documentary evidence.
Claimant was examined as PW1. PW2 is the attester to Ext.A12 lease deed. PW3 is the Secretary of the Kodumbu Panchayath and PW4 is the 1st Grade Draftsman attached to the office of the Resurvey Assistant Director. Exts.A1 to A12 were marked on the side of the claimant. Respondent No.12 was examined on the side of the respondent as RW1. Respondents produced Exts.B1 to B13. Exts.C1, C2, X1 and X2 were marked as court exhibits.
8. It is not disputed that the petition schedule property originally belonged to Ayya Pattar. Respondents 1 to 16 are the successors-in-interest of the deceased Ayya Pattar. The plaint schedule property in O.S.No.337/1989 is the three items of properties having a total extent of 7.97 acres. The extent of property in the claim petition is little more i.e., 8.32 acres. It is also not disputed that the deceased Ayya Pattar leased out certain items of properties to Mallu, who is the predecessor-in- interest of respondents 17 to 19. According to the claim petitioner, the petition schedule properties are also part of the properties leased out by Ayya Pattar in favour of Mallu. The claim petitioner's case is that he is in possession of the petition ::8::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 schedule properties since 12.4.1963 as per Ext.A12 lease deed executed by him in favour of Mallu. The contention is that he derived tenancy right from Mallu and Mallu, later assigned his intermediary right to his son Kitta @ Krishnan as per Ext.A3 assignment deed dated 7.2.1964. Thereafter, the claim petitioner has been paying rent to Kitta @ Krishnan. The claim petitioner further contended that he had erected thatched shed, later renovated it into a tiled house and constructed motor shed, installed pump set etc. It is also contended that the claimant is not a party in the ceiling proceedings and therefore, the decision is not binding on him. According to the claim petitioner no portion of the petition schedule property held by him as tenant since 1963 can be delivered to the decree holders in the execution proceedings in O.S.No.337/1989. The claim petitioner is claiming title by virtue of Ext.A12 lease deed. He contended that the petition schedule property was leased to Mallu by jenmi Ayya Pattar and the tenant Mallu assigned his tenancy right to the claim petitioner. If the petition schedule property was leased to Mallu by jenmi and if the petition schedule properties were assigned to the claim petitioner by virtue of Ext.A12 lease deed, ::9::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 the claim petition is liable to be allowed, therefore, the question to be examined is as to whether the claim petitioner has established his tenancy right over the petition schedule property. Respondents 1 to 16 denied the allegation in the claim petition and contended that the claim petition is filed at the instigation of Ratnababu (respondent No.17) and respondents 17 & 18, who failed to establish the title to the property even though they agitated litigations up to this Court. They have denied the case of the applicant stating that Mallu's tenancy did not take in the property mentioned in the petition schedule property and that no tenancy right was created in favour of the applicant by Mallu. It is also contended inter alia that Ext.A12 lease deed is false and is a fabricated document. In the light of the rival contentions, the question involved in the claim petition will have to be decided on the basis of the materials adduced by both sides. Primarily, the question to be decided is as to whether the tenant Mallu got the petition schedule property under lease arrangement from Ayya Pattar, the original owner. It is also not disputed that Mallu's tenancy right devolved upon his son Kitta @ Krishnan.
::10::
Ex.F.A.No.31/12 & O.P(C).No.2209/12
9. Ext.A6 is the certified copy of the partition deed executed between Mallu and his children. Ext.A6 is dated 20.1.1958. Item No.28 of Ext.A6 is the property obtained by Mallu on lease from Ayya Pattar. Item No.28 consists of a few items of properties having a total extent of more than 18 acres. The description of item No.28 in Ext.A6 partition deed does not show that the petition schedule property is also included in the property let out to Mallu. Ext.A3 is the certified copy of the assignment deed dated 7.2.1964 executed by Mallu in favour of his son by name Kitta @ Krishnan. Mallu assigned several items of properties to his son Kitta @ Krishnan. The said items include the property obtained by Mallu from Ayya Pattar. The property included as item No.28 in Ext.A6 was also assigned by Mallu in favour of his son Kitta @ Krishnan. In Ext.A3 assignment deed there is no mention of Ext.A12 lease deed which is a document by which the claim petitioner alleged to be in possession and enjoyment of the properties as of right. In Ext.A3 deed the leasehold right enjoyed by Mallu was assigned to his son Kitta @ Krishnan. In page 2 of Ext.A3, there is mention about the lease of properties by jenmi Ayya Pattar. What is assigned is the ::11::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 leasehold right of Mallu. The entire leasehold right of Mallu was assigned in favour of his son and possession was handed over on the said date. If the leasehold right of Mallu was assigned in favour of the claim petitioner as per Ext.A12 lease deed, definitely the said fact would have been stated in Ext.A3. The non-mention of Ext.A12 in Ext.A3 assumes importance in the light of the contentions raised by respondents 1 to 16 that Ext.A12 is a false and fabricated document. What was assigned under Ext.A3 is the entire leasehold right of Mallu. There is no indication in Ext.A3 that the right assigned is only an intermediary right.
10. Ceiling proceedings No.1270/77 was initiated against Kitta @ Krishnan under Section 85(A) and 85(2) of the Land Reforms Act. The assessee is none other than Kitta @ Krishnan, S/o.Mallu, who is the father of respondents 17 to 19. He is the assignee under Ext.A3 assignment deed. The disputed property which is scheduled in the petition schedule herein was also included in the draft statement in the account of the assessee.
Kitta @ Krishnan contended that the disputed property of 7.97 acres of land comprised in survey Nos.126/5, 126/2C and ::12::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 126/2A, which is the subject matter of the present suit, was not held by the assessee and that they are in the possession of P.V.Damodara Sharma, S/o.Ayya Pattar, and requested the Taluk Land Board to exclude the said items from the account of the assessee. In the original order of the Taluk Land Board dated 29.3.80, marked as Ext.B8, exemption claimed was not allowed.
The assessee produced certified copy of the partition deed of 1958 (Ext.A6) and the certified copy of the assignment deed No.403/64 (Ext.A3) and contended that 7.97 acres of land included in his account has not been included in any of the aforesaid documents. One of the legal heirs of Ayya Pattar, P.V.Damodara Sharma, was also examined in the ceiling case. He had testified before the Taluk Land Board that the said items of properties have not been given on lease to the assessee's father Mallu and that the lands are in his own possession and enjoyment. The Taluk Land Board vide order dated 29.3.80, marked as Ext.B8, rejected the contention and directed the assessee to surrender possession of and extent of 9.40 acres including the disputed property. P.V.Damodara Sharma, who is one of the members of the jenmi family, had filed a claim petition ::13::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 claiming title and possession over the disputed property. Both the assessee and claimant filed Civil Revision Petitions before this Court. This Court set aside Ext.B8 order of the Taluk Land Board and directed the Board to dispose of the matter afresh after giving the assessee and the claimant an opportunity to file objections and permitting both of them to adduce evidence. After remand, the Taluk Land Board revised Ext.B8 order and issued fresh proceedings dated 24.9.1982 marked as Ext.A10. In Ext.A10 order, the Taluk Land Board upheld the claim of the land owner P.V.Damodara Sharma holding that 7.97 acres of land in survey Nos.126/5, 126/2C and 126/2A is owned, held and possessed by jenmi family and that the assessee namely, Kitta @ Krishnan has no tenancy right over the land. The relevant extract from Ext.A10 order reads as follows:
"The properties held by Mallu were partitioned between Mallu and his son assessee and two brothers as per partition deed No.161/58 of S.R.O, Palghat. The properties in question have not been included in the partition deed. The verumpattom right held by late Mallu was transferred to the assessee as per sale deed No.403/64. The properties in dispute have not been included in the sale deed also. All the transactions are ::14::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 long before the KLR Act come in to force. The assessee had filed a J form application before the Land Tribunal, Kollengode to get assigned the properties u/s 72 of the KLR Act. The lands in question have not been included in the J form also. The authorised Officers have reported together with the written statement of adjacent cultivators that the lands are owned, held and possessed by the land owner P.V.Damodara Sharma. The assessee Krishnan @ Krishnan has no tenancy right over the lands. The Taluk Land Board after careful examination came to a conclusion that the lands are owned, held and possessed over the lands and decided to exclude the lands 126/5, 126/2C and 126/2A measuring an extent of 7.97 acres from the ceiling case of Kitta @ Krishnan".
11. The claimant produced certified copy of the decree dated 29.6.1981 in O.S.No.258/77 on the file of the Sub Court, Palakkad and is marked as Ext.A4. Ext.A5 is the judgment in the said suit. The suit was filed by Mallu's son, Velayudhan against the wife and other children of Mallu including Kitta @ Krishnan. In that suit, Kitta @ Krishnan was the 2nd defendant. The property obtained by Mallu from the jenmi family is also scheduled as item No.28. Suit was filed for partition and separate possession of plaintiff's 1/4th share over A & B schedule ::15::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 properties and for other reliefs. In the said case, the 2nd defendant Kitta @ Krishnan inter alia contended that item Nos.25 to 28 exclusively belongs to him by virtue of the assignment deed in his favour executed by deceased Mallu and therefore, those items are not available for partition. The assignment deed referred is Ext.A3 assignment deed of 1964 produced in this case. The contention of the 2nd defendant was that Mallu has assigned some items (25-28) in his favour in 1964 as per Ext.A3 assignment deed and that he is in possession of the same since the date of assignment. The issue No.2 framed in the said suit was as to whether the suit items 25-28 belongs to the 2nd defendant exclusively by virtue of assignment deed in his favour executed by deceased Mallu. The contention was seriously opposed by the other sharers and the matter was decided on merits after an elaborate consideration of the evidence on record. The registered copy of the assignment deed of 1964 executed by Mallu in favour of Kitta @ Krishnan was produced and marked as Ext.B7 in the said suit. The learned Sub Judge held that items of 25-28 properties exclusively belongs to the 2nd defendant, that the assignment deed (Ext.B7) relied on by the 2nd defendant is ::16::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 not vitiated by any infirmities, that it was executed with free will and consent of the deceased at a time when he was having a sound disposed state of mind, that the properties available for partition are plaint 'A' & 'B' schedule items excluding items 25-28 in plaint 'A' schedule etc. Suit was filed for partition and the parties are the legal heirs of deceased Mallu. They have no case that the leasehold right of Mallu was assigned at any point of time in favour of the claim petitioner and that the deceased Mallu parted with the disputed properties to the claim petitioner. But, the case is that the leasehold property was obtained by Mallu and other items of properties owned by him are assigned to his son Kitta @ Krishnan by virtue of Ext.B7 assignment deed dated 7.2.1964 (Ext.A3 in the present case) and Kitta @ Krishnan is in enjoyment of the disputed property. In O.S.No.258/1977 none of the parties who are the legal heirs of Mallu has a case that the disputed property is in the possession and enjoyment of the claim petitioner as a lessee with effect from Ext.A12 lease deed.
12. Plaintiffs 2 in number and defendants 1 to 14 in the present suit (O.S.No.337/1989) are the members of the jenmi family. Suit was filed claiming 2/9 shares. The other sharers are ::17::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 defendants 1 to 14. Three items of properties, namely, 7.97 acres of land comprised in survey Nos.126/5, 126/2C and 126/2A are the plaint schedule items. The very same properties are scheduled in the claim petition. There was a connected suit namely, O.S.No.267/1989 filed by Ratnababu, S/o.Kitta. He is the 15th defendant in O.S.No.337/1989 and 17th respondent in the claim petition. Respondents 18 & 19 are the other legal heirs of Kitta, S/o.Mallu. Ratnababu filed O.S.No.267/89 against 14 defendants who were the very same defendants in O.S.No.337/1989 on the allegation that defendants failed to execute sale deed pursuant to an agreement of sale dated 31.7.1982 agreeing to sell the plaint schedule properties to the plaintiff Ratnababu. Suit was filed for specific performance of the contract of sale. Ext.B9 is the copy of the plaint in O.S.No.267/1989. Plaint schedule property in O.S.No.267/89 is the 7.97 acres of land which is the plaint schedule property in O.S.No.337/89. The trial court dismissed O.S.No.267/89. The plaintiff in O.S.No.267/89 filed A.S.No.546/90 before this Court challenging the dismissal of the suit. This Court confirmed the findings of the trial court and dismissed the appeal. Ext.B10 is ::18::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 the certified copy of the judgment in A.S.No.546/90. In the said suit filed by Ratnababu, who is one of the legal heirs of Kitta @ Krishnan, the contention raised was that he is in possession of the property by virtue of agreement for sale. In the said suit also there was no contention that the petition schedule properties were assigned by Mallu in favour of the claim petitioner.
13. The case of the claim petitioner is that he is in possession and enjoyment of the petition schedule property on the strength on Ext.A12 lease deed dated 12.4.1963. As per the provisions of the Kerala Land Reforms Act, right, title and interest of the land owner and intermediary is vested in the State of Kerala with effect from 1.1.1970. The tenants entitled to fixity of tenure are entitled to apply for purchase certificate. The fact that the claim petitioner did not approach the Land Tribunal claiming tenancy right for the last more than four decades is one of the circumstances which would go to show that Ext.A12 lease deed is not a genuine document. The claim petitioner also produced Ext.A1 certified copy of the assignment deed No.4076/07 alleged to be executed by the two children of Kitta, namely, Mohan Babu and Premakumari (respondents 18 & 19) in favour of the claim ::19::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 petitioner. Ext.A2 is the certified copy of the rectification deed No.5721/08. The petitioner claimed that by Ext.A1 deed, Mallu's two children assigned their right in the property in favour of the claim petitioner. A preliminary decree in O.S.No.337/1989 was passed on 21.10.1991 and a final decree was passed on 31.10.07. E.P.No.77/08 was filed on 10.4.08. The claim petition was filed on 24.7.2008. Ext.A1 document is dated 11.5.2007 and the same was executed pending final decree proceedings in E.A.No.139/1992 in O.S.No.337/89. The appeal preferred by one of the legal heirs of Kitta @ Krishnan was dismissed by this Court on 7.3.07. Exts.A1(a) and A2(a) are the original of Exts.A1 & A2.
Ext.A1(a) assignment deed was executed immediately on 11.5.2007 i.e., within two months from the dismissal of the appeal. Ratnababu is not a party to Ext.A1(a). The other two legal heirs of Kitta @ Krishnan purported to release the intermediary right to the claim petitioner. After coming into force of the Kerala Land Reforms Act, the right, title and interest of the landlord and intermediary are vested in the State of Kerala. By Ext.A1 deed, the other two legal heirs of Kitta @ Krishnan purported to convey their intermediary right to the claim ::20::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 petitioner, who is described as the tenant in possession of the property. The executants have no right over the property after coming into force of the Kerala Land Reforms Act. In the said circumstances, execution of Ext.A1(a) and A2(a) deeds are not in good faith and was done with ulterior motive of executing some documents evidencing title in favour of the claim petitioner.
14. Ext.A2 deed is a correction deed dated 24.6.08.
According to the parties to Ext.A1, father's name of the claim petitioner was wrongly entered in Ext.A1 and for correcting the name, Ext.A2 deed was executed. The claim petition was filed on 24.7.2008. Exts.A1 & A2 are certified copies. Exts.A1(a) and A2
(a) are the original deeds. The original deeds (Exts.A1(a) and A2
(a)) were produced along with the claim petition on 24.7.2008. The original documents were taken back from the court. Subsequently, the claim petitioner produced certified copies of Exts.A1(a) and A2(a) (Exts.A1 & A2) before the court in the place of originals. The claim petition was originally dismissed by order dated 6.7.2010. In the appeal preferred against the said order, this Court by order dated 21.10.2010 remanded the case for fresh disposal directing the court below to afford an opportunity ::21::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 to the claim petitioner to substantiate his case by adducing additional evidence. Finding that the claim petitioner produced only certified copies (Exts.A1 & A2) and smelling some foul play respondents filed E.A.No.671/2011 for a direction to the claim petitioner to produce the originals of Exts.A1 & A2. In compliance with the order in E.A.No.671/2011 the claim petitioner produced originals, Exts.A1(a) & A2(a), on 31.11.2010. The claim petitioner's name is Chami @ Ramachandran, S/o.Chathan @ Chami. It is admitted by PW1 that his 1st cousin's name is Chami @ Ramachandran, S/o.Chathan @ Raman. The respondents contended that Ext.A1 document was executed by two legal heirs of Kitta @ Krishnan in favour of Chami @ Ramachandran, S/o.Chathan @ Raman. They have produced Ext.B2 series alleged to be the photocopies of Ext.A1(a) and A2
(a) deeds. In Ext.B2 photocopy of Ext.A1(a), the photograph shown is that of the 1st cousin of the claim petitioner, whose name is Chami @ Ramachandran, S/o.Chathan @ Raman.
According to the respondents, the photograph of Chami @ Ramachandran, S/o.Chathan @ Raman (cousin) was removed and the photograph of the applicant was pasted on the original.
::22::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 Removal of the photograph of the original assignee was carried out after taking back the original Ext.A1(a) from the court and in the place of his photograph, claim petitioner's photograph was pasted. Respondents have obtained a copy of Ext.A1(a) at a time when Ext.A1(a) was produced along with the claim petition in the court. Respondents also pointed out that after taking Exts.A1(a) and A2(a) from the court, the claimant had produced the certified copies of Exts.A1(a) and A2(a). Only when the court directed production of Exts.A1(a) and A2(a) (original documents), the claimant produced the same before the court. Respondents submits that on perusing Exts.A1(a) and A2(a), produced as directed by the court, they came to know that the claimant had tampered with Exts.A1(a) by replacing the photograph of the original assignee. Ext.A1(a) was executed in favour of Chami @ Ramachandran S/o. Chathan @ Raman. Since the assignee is not the claim petitioner, replacing the photograph of his cousin and pasting the photograph of the claim petitioner alone will not serve the purpose. That may be the reason why Ext.A2(a) rectification deed was executed. In the rectification deed, the name of the father was corrected. The name of the cousin's ::23::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 father was replaced by the name of the claim petitioner's father. In Ext.A2(a) execution deed the thandaper account is also seen corrected. On a perusal of original deeds (Exts.A1(a) and A2(a)), photocopies of original deeds (Exts.A1 & A2), Ext.B2 series and the facts and circumstances leading to the production of the original deeds before the court will lead to the conclusion that Ext.A1(a) document was executed in favour of the cousin of the claim petitioner and not in favour of the claim petitioner. Evidently, there is a clear manipulation or apparent forgery practiced by the claim petitioner in order to appear that the documents were executed in his name. The trial court also considered the very same question and reached the very same conclusions.
15. Respondents 17 to 19 are the legal heirs of Kitta @ Krishnan. Though they are respondents 17 to 19 in the claim petition, they have no case that the claim petitioner has got assignment of tenancy right from their grandfather Mallu and that the claim petitioner is a tenant of the property. The very same persons contended in the ceiling proceedings that the properties are in the possession and enjoyment of the jenmies. Admitting ::24::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 the respondents' right, title and interest, respondent No.17 entered into an agreement with the members of the jenmi family for the purchase of the very same properties. The said suit namely, O.S.No.267/89 was dismissed and the matter was taken up in appeal before this Court and the appeal was also dismissed on 7.3.2007. The said respondents did not raise any contention in this claim case probably due to their stand in the ceiling proceedings and in O.S.No.267/89. When the claimant was examined as PW1, he testified before the court that all the documents in the claim petition, namely, Exts.A1 to A11 are in fact produced by Ratnababu, who is the 17th respondent. When examined he also testified that there was no necessity to take back the original deeds (Exts.A1(a) and A2(a)) from the court. He also testified that Ratnababu and Mohanbabu (respondents 17 & 18) were present in the trial court during the course of hearing. Before this Court also the 18th respondent was present on all days when the case was heard. All the facts and circumstances would lead to the conclusion as contended by the respondents that the claim petition was set up by the legal heirs of Kitta @ Krishnan, namely, respondents 17 to 19. The evidence of the claim ::25::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 petitioner as PW1 is also not inspiring. The testimony of PW1 would show that the claim petitioner has no idea about the property for which he maintained this action. His evidence as PW1 also would appear that the present claim petition is filed at the instigation and dictate of respondents 17 to 19 and the claim petitioner was only a name lender. PW2 is the attester to Ext.A12. He testified before the court that at the time of execution of Ext.A12 lease deed, the claim petitioner was aged 16 and PW2 18. The fact that the claim petitioner is a minor aged 16 also improbabalise the case set up by him on the strength of Ext.A12. The court below rightly disbelieved the versions of PWs 1 & 2.
16. The definite case of the claim petitioner is that he is holding the property as tenant under intermediary Mallu. As to whether the claim petition schedule property is also included in the items of properties leased out by Ayya Pattar to Mallu, there is no evidence. The claim petitioner failed to prove that the claim petition schedule properties are also properties leased out in favour of Mallu. So long as there is no evidence to prove that the claim petition schedule properties are also part of the properties ::26::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 leased out in favour of Mallu, the case set up by the claim petitioner is devoid of any merit.
17. The learned counsel for the claimant placed reliance on the decision reported in Babu Raj v. Vasanthi Devi (2008(4) KLT 761) and contended that the burden is on the respondents/decree holders to prove their title over the petition schedule property. The learned counsel for the respondents brought to the notice of this Court the decisions reported in Kunjumol C. Immanuel v. Shibu (2011(1) KLT 232), Unnikrishnan v. Kunhibeevi (2011(1) KLT 508), Ittiyachan v.
Tomy (2001 (3) KLT 117) and Ghasi Ram and others v. Chait Ram Saini and others (1998 (6) SCC 200) and contended that it is for the claimant to prove that he has got title and possession over the petition schedule property. In this case both sides adduced oral and documentary evidence in support of their contentions and therefore, not much significance can be attached to the burden of proof.
18. The claimant produced certain documents in support of his case that he is in possession and enjoyment of the property from the date of Ext.A12 lease deed. The present suit was tried ::27::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 simultaneously with O.S.No.267/1989 filed by Ratnababu, the 16th respondent. Ext.B9 is the certified copy of the plaint and Ext.B10 is the copy of the judgment in A.S.No.546/1992. Suit filed by Ratnababu for specific performance against the vendors was tried along with the present suit, namely, O.S.No.337/1989. O.S.No.267/89 was dismissed and confirmed in appeal by this Court in A.S.No.546/1992. The contention of the claimant that he is in possession of the property was examined in detail by the court below. The claimant relied on Ext.X1, copy of the building assessment register of Kodumbu Grama Panchayath. Respondents relied on Exts.B3 to B5, information furnished under Right to Information Act. Exts.B3 to B5 would show that building with door No.6/25 of Kodumbu Panchayath is seen registered in the name of one Sukumaran. The commissioner in Ext.C1 report reported that he could not find door number of the building except a writing with chalk 6/25 and that the building appears to be only 6 years old. The said fact probabalise the contention of the respondents 1 to 16 that only after the disposal of Ext.B10 appeal by this Court in 2007, he manipulated the situation and created certain documents. It is to be noted that there is no ::28::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 corresponding entry in the building assessment register with respect to the tiled building. Though the tiled house is situated in the same survey number, it lies outside the property sought to be delivered. The three items of properties were identified as decree schedule property. Exts.B3 to B5 evidently shows that the owner of the building situated in the properties is one Sukumaran. In the circumstance, the court below observed that there is some strange suspicious circumstances surrounding the filing of the claim petition.
19. Ext.B6 is the certified copy of the order dated 18.3.1978 in O.A.No.2867/76 of the Land Tribunal, Kollengode. The said O.A was filed by the father of respondents 17 to 19, namely, Kitta @ Krishnan. He submitted the application under Section 72B of the Kerala Land Reforms Act for the assignment of right, title and interest of the land owner and intermediaries of the holding measuring 11.86 acres of land in different survey numbers. Evidently, it includes the properties now scheduled in the claim petition. The Land Tribunal dropped the proceedings with a direction to the parties to approach it again as soon as the decision of the Taluk Land Board is rendered for further ::29::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 assignment proceedings under Section 72C of the Act. The father of respondents 17-19 filed O.A against 14 members of the jenmi family who are the respondents in the claim petition.
20. Respondents produced Ext.B13 basic tax receipt issued by the Village Office, Kodumbu, which would show that the members of the jenmi family has remitted the basic tax for the property. The claim petitioner's case is that he got lease from Mallu as per Ext.A12 lease deed. The legal heirs of Mallu, who are respondents 17 to 19, did not support the case of the claim petitioner and they did not raise the contention that the claim petitioner is in possession and enjoyment of the properties as a tenant.
21. Ext.C1 is the report submitted by the commissioner and Ext.C3 is the plan. There is no proof to show that the property described in Ext.A3 is the property shown in Ext.A12 or the property scheduled to the claim petition. The claimant failed to prove that the property covered by Ext.A3 is the property attached to the claim petition. Thus the applicant miserably failed to prove that the disputed property is the property by which Mallu was the tenant under Ayya Pattar and that he failed ::30::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 to prove the correctness and genuineness of Ext.A12 on the basis of which he claimed tenancy right. The claim petitioner also failed to prove his possession since 1963. Thus, the contention of the claimant and respondents are examined in detail. This Court finds that the claim petition is devoid of any merit. O.P(C).No.2209/2012
22. The original petition is filed under Article 227 of the Constitution of India. Ratna Babu is the petitioner. The petitioner is the 15th defendant in O.S.No.337/1989 and the 12th judgment debtor in E.P.No.76/2008 in O.S.No.337/1989. The petitioner is the 17th respondent in E.A.NO.590/2008 in E.P.No.76/2008 in O.S.No.337/1989 filed by a third party. The claim petition filed by the third party claiming right, title and interest over the plaint schedule property in O.S.No.337/1989 on the file of the Principal Sub Court, Palakkad, was dismissed on 23.3.2012. The appeal preferred by the claim petitioner, namely, Ex.F.A.No.31/2012 was finally heard on 22.6.2012 and the case was reserved for judgment. The petitioner herein is the 17th ::31::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 respondent in the Ex.F.A. The original petition was filed on 23.7.2012. The respondent in the O.P filed counter affidavit.
23. The petitioner filed objections to the execution petition. Ext.P6 is the copy of the objection filed in February, 2009. The claim petition was filed as E.A.No.590/2008 in the year 2008. The first order in E.A.No.590/2008 was passed on 6.7.2010. Aggrieved by the said order the claimant filed Ex.F.A.No.38/2010 before this Court. This Court by judgment dated 21.10.2010 remanded the case for fresh disposal with a direction to reconsider the matter afresh after affording an opportunity to the parties to adduce further evidence. After remand the execution court again considered E.A.No.590/2008 and by order dated 23.3.2012 dismissed the claim petition. The said order is the subject matter of Ex.F.A.No.31/2012, which was finally heard on 22.6.2012.
24. The petitioner filed the O.P after final hearing of the Ex.F.A.No.31/2012. The petitioner filed another objection on 10.2.2012 as additional objection. The additional objection was filed long after the dismissal of the claim petition by order dated 6.7.2010 and ordering delivery of the petition schedule property.
::32::
Ex.F.A.No.31/12 & O.P(C).No.2209/12
25. I have in detail considered the context under which the claim petition was filed and the persons who are behind the filing of the claim petition in the connected Ex.F.A.No.31/2012. In O.S.No.337/1989, a preliminary decree for partition was passed allotting 2/9 shares to the plaintiffs in the suit. They were found entitled to partition and separate possession of 2/9 shares in the property. A final decree allotting 1.77 acres was passed in their favour. The petitioner was the 15th defendant in the suit and 15th respondent in the final decree application. The appeal filed by the petitioner as A.S.No.318/1992 against the preliminary decree was dismissed by this Court. The case set up by the petitioner based on the alleged agreement for sale has also failed as evidenced by the judgment in O.S.No.267/1989 & A.S.No.318/1992.
26. The grievance of the petitioner is that while dismissing E.A.No.590/2008, without considering Exts.P6 & P6(a) objections of the petitioner, the court ordered delivery of the property. The objection raised in Exts.P6 & P6(a) are that there is no decree in O.S.No.337/1989 for recovery of property and there is only a decree for partition. It is contended that this fact is fortified ::33::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 further by the institution of O.S.No.15/2008 by the decree holders themselves for recovery of possession. It is contended that the execution petition was filed misquoting Order XXI Rule 35, which is not applicable to the facts of the case. The relief sought for in the original petition is to set aside E.P.No.76/2008 in O.S.No.337/1989 on the file of the Principal Sub Court, Palakkad as not maintainable and to direct the Sub Court, Palakkad, to consider Exts.P6 & P6(a) objections filed by the petitioner in the E.P.No.76/2008 and to pass a speaking order.
27. Considering the facts and circumstances of the case, this Court heard the objections raised by the petitioner in Exts.P6 & P6(a) objections. I have examined the preliminary decree passed in O.S.No.337/1989. The plaintiffs are allowed to get metes and bounds partition and separate possession of 2/9 shares over the plaint schedule property. Subsequently, a final decree allotting 2/9 shares was passed in favour of the plaintiffs.
The petitioner was the 15th defendant in the suit and 15th respondent in the final decree application. The appeal filed as A.S.No.318/1992 against the preliminary decree was dismissed by this Court. Ext.P4 is the plaint in O.S.No.15/2008. The plaint ::34::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 schedule property in O.S.No.337/1989 is 7.97 acres. A final decree allotting 1.77 acres was passed in favour of the plaintiffs. The suit, O.S.No.15/2008 is filed for recovery of possession of the balance extent of 6.20 acres i.e., 7.97 acres minus 1.77 acres covered by E.P.No.76/2008 in O.S.No.337/1989. It is seen that the extent of 1.77 acres as per the final decree and allotment of shares to the decreeholders is not the subject matter of O.S.No.15/2008. The decreeholders are plaintiffs 1, 2 and 13 in that suit. They claimed share in the interest of their deceased father, P.A.Vishwanathan, who is the 1st defendant in O.S.No.337/1989.
28. The case of the petitioner based on an alleged agreement for sale has also failed as evident from the judgment in O.S.No.267/1989 and A.S.No.318/1992. The petitioner has no right, title or interest to resist the execution proceedings. This Court is of the view that the objections preferred against the execution petition are without any substance and merit, therefore liable to be dismissed.
::35::
Ex.F.A.No.31/12 & O.P(C).No.2209/12 In the result, the Ex.F.A.No.31/2012 filed challenging the findings in E.A.No.590/2008 of the trial court is dismissed with costs. O.P.(C).No.2209/2012 is also stands dismissed.
HARUN-UL-RASHID, Judge.
bkn/-