BEEPATHUMMA Vs. THANKAMMA

JUDGEMENT

(1.) These.two revision petitions are arising from suit O.S.No.105/86 on the file of the Munsiff's Court, Parappanangadi. It is a suit for partition. Petitioners in these revisions are not parties to the suit. They filed two separate interlocutory applications, one for impleadment and other for the issue of a commission. Both these petitions were dismissed by the court below as per the common order dated 1-9-1987, which is challenged in these petitions. C.R.P.No.1711/87 is against the order in I.A. 2248/86 and C.R.P. 2345/87 is against the order in I.A.1415/87. The plaintiff is figured as first respondent in both the revisions and the defendants 1 to 8 as respondents 2 to 9.

(2.) The facts of the case can be summarised thus: One of the items of properties comprised in R.S.451/2 is the plaint schedule property which is sought to be partitioned in O.S. 105/86. It was originally belonged to Guruvayoor Devaswom injenmom rights. It was held by one Unichira Amma on kanam rights as per kanam chit dated 31-1-1927. Guruvayoor Devaswom filed O.S.No. 80/81 in the Munsiff's Court, Parappanangadi against the legal heirs of Unichira Amma in realisation of the arrears of rent due under the kanam chit. In execution of the decree in O.S.80/81 Guruvayoor Devaswom brought all the properties under kanam chit to court sale. In E.P.137/above properties were sold in court auction on 17-9-1964. The sale was duly confirmed and the sale certificate was issued to auction purchaser. The auction purchaser took delivery of the properly on 8-12-1964. While so, second petitioner herein had obtained assignment of the rights of the auction purchaser. In the meanwhile Kerala Stay of Eviction Proceedings (Amendment) Act of 1969 came into force. The first petitioner claimed that she had the leasehold right over the properties under kanam rights. The tenancy right of the 1st petitioner was later recognised by the Land Tribunal, Chavakkad and issued Certificate of Purchase. In view of the provisions of the above Act of 1969 an order for redelivery was passed in E.A.418/69 and the Amin came to the property for effecting re-delivery. At that time there was a mediation talk through Advocate Sri. Raman Kutty Menon, who was appearing for the applicant in the matter and as a result thereof an agreement was executed (Ext. A1). As per this agreement northern half of the property was allowed to be in possession of the petitioners while the possession of southern half of property was to be with defendants 4 to 8. Since the matter was thus settled, neither of the parties thereafter appeared before the Munsiff's Court in the suit O.S.85/80 and the suit was thus allowed to be dismissed for non prosecution. The suit O.S.85/80 was the one filed by petitioners for declaration that they had become the owners of the property on the basis of the certificate of purchase obtained by them. The petitioners have thus been in continuous possession of .the northern half of the property pursuant to the aforesaid settlement. However the present suit O.S.105/86 was filed by one of the successors in interest of Unichira Amma for partition of the property. No reference was made in the plaint O.S.105/86 as to the agreement. When the petitioners came to know about the institution of the suit, they filed I.A 2248/86 praying that they may be impleaded as parties to the suit in as much as they are vitally interested in contesting the claim for partition in respect of the northern portion of the property. I.A.1411/87 was also filed by them for. the issue of a commission for preparing a plan and report in respect of the plaint schedule property. While deciding these two petitions, the court below framed four issues. The first issue among them relates to the question whether the petitioners have got any title or possession over the plaint schedule property before the disputed delivery. Without taking any oral evidence the court below passed an order that the petitioners are not in possession of the plain schedule property. Therefore in view of this finding, the court below dismissed both the petitions. It is against that common order the present revision petitions are filed.

(3.) The petitioners filed the application for impleadment under O.1 R.10(2) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') which runs thus: