DEVU Vs. K. SAKUNTHALA

JUDGEMENT

(1.) THESE Second Appeals arise from the judgment and decree of learned Munsiff, Palakkad in O.S. No.253 of 2004 and 674 of 2005 as confirmed by the learned District Judge, Palakkad in A.S. Nos.197 and 138 of 2008. Parties are referred as plaintiffs and defendants as arrayed in O.S. No.253 of 2004. O.S. No.253 of 2004 is a suit for partition. Plaintiffs claimed that the suit property belonged to Raman, predecessor in interest of plaintiffs and defendants, he having obtained oral lease of the said property. The said Raman died about 30 years back. On the death of Raman the said property devolved on plaintiffs 1 to 3, Kambayi and Kalyani. Kambayi, the eldest son of Raman, died about 6 years back. Defendants 1 to 6 are the legal heirs of Kambayi while defendants 8 to 10 are the legal heirs of Kalyani. In the year, 1976 Kambayi got purchase certificate concerning the suit property, according to the plaintiffs on behalf of all legal heirs of Raman and who according to the plaintiffs are co -owners of the suit property. They demanded partition of the said property.

(2.) DEFENDANTS 1, 3, 5 and 7 contended that Raman had no right over the property and that he died about 70 years back. Property was obtained on lease by Kambayi from his Jenmy, Narayana Iyer. Kambayi constructed a shed in the property and was residing there with family. He constructed a tiled house as well. In the suo moto proceedings initiated in 1975, by virtue of Ext.B1, order dated 07.02.1976, Ext.B2, purchase certificate dated 04.05.1976 was issued to Kambayi. Later, Kambayi dealt with that property as if it is his absolute property. It is the further case of defendants 1, 3, 5 and 7 that Kambayi assigned the property to his son, 1st defendant as per Ext.B5, assignment deed dated 10.08.1993. Thereafter first defendant was exercising power and control over the property as if it is his absolute property. It is also the contention of defendants 1, 3, 5 and 7 that plaintiffs were able to make some corrections in the revenue records to facilitate their case for partition. First plaintiff had quarreled with her husband and came to the house of Kambayi. Kambayi allowed her to reside in the tilled shed in the suit property.

(3.) LEARNED counsel contended that finding that suit property was acquired by Kambayi on lease is unsustainable and it is without evidence. It is contended that Ext.X1 is sufficient indication that property was acquired on lease by Raman. Learned counsel submitted that finding entered by the courts below that Ext.X1 came into existence after 1992 -93 is not correct. It is submitted by the learned counsel that resurvey was effected much prior to 1992 -93 though details of resurvey may have been entered in Ext.X1 later. A further contention is that at any rate, there is a rival claim of tenancy made by parties and in the circumstances it was necessary that the issue regarding tenancy should have been referred to the Land Tribunal for a decision. Next argument is that at any rate decree for mandatory injunction given in O.S. No.674 of 2005 cannot be sustained since it is about 20 years after plaintiffs 1 and 2 and others started occupation of the house in the suit property that a decree for mandatory injunction is being given as if they are only permissive occupants of the said house. According to the learned counsel, plaintiffs 1 and 2 and others are in settled possession of the suit property and hence mandatory injunction is not the appropriate remedy.