CHANDRAMATHI Vs. MAMMU

JUDGEMENT

(1.) SIXTH defendant in O.S.25 of 1983 on the file of Munsiff Magistrate Court, Pattambi is challenging the preliminary decree passed by Sub Court, Ottapalam in A.S.127 of 2004, in reversal of the decree passed by the Munsiff in O.S.25 of 1983. Plaintiff contended that the plaint schedule property was obtained by Kunhunni as per an oral lease from Punnassery Mana in 1129 agreeing to pay an annual pattom of Rs.4/- and Kunhunni has been in possession of the property effecting improvements and on the death of Kunhunni, his wife Ammukutty continued possession of the property and Ammukutty died ten years prior to the institution of the suit and on the death of Ammukutty, her right devolved on her husband's brothers, viz, plaintiff, deceased Chenu and defendants 1 to 3. Defendants 4 and 5 are the legal heirs of deceased Chenu. Thus plaintiffs sought separation of his 1/5 share contending that they are in joint possession of the property. On the death of the first defendant, defendants 7 to 12 were impleaded as his legal heirs. Defendants 1, 2 and 10 filed a written statement supporting the plaintiff. Fourth defendant did not file a written statement. Defendants 5, 7 to 9, 11 and 12 were set exparte. Third defendant filed a written statement admitting the relationship but contending that the property scheduled in the written statement was obtained by the third defendant under an oral lease in 1945 from Punnassery Illam for a pattom of Rs.10/- and since then she has been in possession and enjoyment of the property effecting improvements. On 18.7.1981, under Ext.B8 assignment deed, she transferred the right in favour of 6th defendant and 6th defendant has been in possession and enjoyment of the same since then. Plaintiffs or others have no right to claim partition of the property. It was contended that there are vast extent of properties known as oottuparamba and the third defendant is not sure whether deceased Kunhunni obtained the plaint schedule property and the property obtained by third defendant is not available for partition. The 6th defendant who was impleaded later filed a written statement reiterating the contentions raised by the third defendant and claiming absolute right to the property. Defendants 13 to 15 were subsequently impleaded, after remand, as the assignees of the plaintiff and defendants 1 and 2 under Ext.A4 assignment deed.

(2.) LEARNED Munsiff originally granted a decree for partition. It was challenged in A.S.133 of 1985 before Sub Court, Ottapalam. LEARNED Sub Judge set aside the judgment and remanded the suit for fresh disposal after framing an issue on the rival tenancy claimed, with a direction to refer the question of tenancy to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. Issue No.5 was thereafter framed and the issue was referred to Land Tribunal, Ottapalam under Section 125 (3) of Kerala Land Reforms Act. Land Tribunal rendered a finding based on Ext.B1 purchase certificate and Ext.B2 order, granted in favour of third defendant in O.A.5941 of 1976, and the tax receipts produced before the Land Tribunal upholding the tenancy claimed by the third defendant. As the finding is binding on the trial court, learned Munsiff accepted the finding and dismissed the suit. It is challenged before Sub Court, Ottapalam in A.S.127 of 2004 by defendants 13 to 15 the assignees of the plaintiff and defendants 1 and 2. LEARNED Sub Judge, on reappreciation of the evidence set aside the finding of the Land Tribunal holding that there is no evidence to prove the lease set up by the third defendant and instead evidence of PW4, who granted the lease and PW2 to whom the property was alloted on partition in the family of the landlord, with the entries in Ext.X1 and X2 establish the lease in favour of Kunhunni and passed a preliminary decree holding that plaint schedule property is available for partition and it will be divided into five equal shares and appellants are entitled to 3/5 shares and 6th defendant is entitled to 1/5 share and defendants 4 and 5, the legal heirs of Chenu are entitled to the remaining 1/5 share. It is challenged in the second appeal.

(3.) THOUGH under Section 72K of the Kerala Land Reforms Act, purchase certificate is conclusive evidence of title, when the legal heirs of Kunhunni are not parties to Ext.B2 order of the Land Tribunal, pursuant to which Ext.B1 purchase certificate was issued. As no notice was issued to the legal heirs of Kunhunni, in the O.A proceedings, Ext.B1 purchase certificate is not binding on the legal heirs of Kunhunni. If so, based on Ext.B1, it cannot be found that third defendant was the tenant and not Kunhunni. It is more so, when the evidence establish that there was no oral lease in favour of third defendant and Kunhunni was the tenant and on his death, his rights devolved on his widow Ammukutty and on the death of Ammukutty, the rights devolved on the brother and sisters of Kunhunni viz plaintiff, defendants 1 to 3 and deceased Chenu. In such circumstances, the preliminary decree granted by first appellate court is perfectly correct. As the actual extent of the property is to be determined in the final decree proceedings, it is not necessary to consider the actual extent of the property to be divided and that question is to be settled in the final decree proceedings. As no substantial question of law is involved in the appeal, appeal is dismissed.