KUNDATHODI SAIDALI Vs. KAPPIL AMINA UMMA

JUDGEMENT

(1.) The Ist defendant in O.S. 52 of 1977 is the appellant. The plaintiff and the 2nd defendant in the suit are the respondents. The suit was one for partition. Plaintiff claimed 32/288 share in the plaint item. According to the plaintiff the properties were taken on lease by the Ist defendant and his brother, one Kunhahammed in 1118. Kunhahammed died leaving behind him, Ayissa, Pathunni, Kadeeja. Amina and Muhammed. Ayissa, Pathunni, Kadeeja and Pathumma Umma wife of Muhammed sold their shares to the 2nd defendant. Amina's share came to the plaintiff by assignment. On this basis the plaintiff laid the suit for partition. The Ist defendant contested the suit. In brief, his contention was, that Kunhahamed was not a joint lessee. Items 1 and 2 were taken on lease by the Ist defendant on 21-8-1118 and item 3 was leased to him orally in 1117. The Ist defendant further claimed that he obtained the jenmom right regarding items 1 and 2 in O.A. No. 508 of 1970 with jenmi in the party array. The order of the Land Tribunal is Ext. B14 dated 29-2-1972 and the purchase certificate relevant thereto is dated 28-10-1972, Ext. B7. Regarding item No. 3 the Ist defendant would have it that he purchased the rights of jenmi under Ext. B8 document dated 23-5-1969, and the remainder, over and above this, two acres, were obtained by him by purchase certificate, Ext. B13 dated 28-10-1972. The 2nd defendant filed the suit for partition, O. S. No. 33 of 1972 impleading the 1st defendant as a party. The suit was decreed by Ext. B49 judgment of the Trial Court dated 29-1-1973. By Ext. B50 dated 21-1-1976 the suit was remanded directing to implead the other heirs of Kunhahamad. Thereafter the suit was dismissed for default. According to the Ist defendant the suit for partition will not lie. The plaintiffs arc not entitled to any share in the plaint items.

(2.) The Trial Court after an exhaustive review of the evidence found that the case set up by the plaintiff that there was a lease in favour of Kunhahammad and Ist defendant is not true. In appeal, the lower Appellate Court after a review of the entire evidence in the case and laying particular emphasis on Ext. B2 document held that the original lease was in favour of Kunhahammed and thereafter it was held by Kunhahammed and Ist defendant. The lower appellate Court has also held that the plaintiff was entitled to 32/288 share in the plaint item and the 2nd defendant is entitled to 108/288 share. Aggrieved by the B judgment of the lower Appellate Court the Ist defendant has come up in second appeal. At the time of the admission of the appeal the following substantial question of law has been formulated for consideration:

(3.) Counsel for the appellant argued that in view of the purchase certificates obtained by the Ist defendant, evidenced by Exts. B7 and B13, the Ist defendant alone is entitled to the property. The claim of the plaintiff that Kunhammad was originally a joint lessee and so the plaintiff is entitled to share therein cannot hold good after the issue of the purchase certificates. This argument cannot hold good for more reasons than one. Firstly, in the proceedings which culminated in Ext. B14, and the issue of certificates, Exts. B7 & B13, the plaintiff was not a party. Those proceedings will not bind the plaintiff. That apart, once it is admitted or proved or found that the original lease of the plaint items was in favour of Kunhammad and the renewal was in favour of Kunhammed and Ist defendant, Kunhammed and his heirs will be coowners along with the 1st defendant. Even though the heirs of Kunhahammed (plaintiffs) were not eo nominee parties to the proceedings evidenced by Ext. B14, as long as the certificates evidenced by Exts. B7 and B13 were obtained by the Ist defendant, who was only a coowner, the rights obtained will certainly enure to the benefit of the heirs of Kunhahammed as well. This follows in view of the fact that a coowner possession will be treated as a trustee as held by the Supreme Court in the decision reported in Karbalai Begum v. Mohd. Sayeed ( AIR 1981 SC 77 ). In the light of the above, it follows that whatever rights were obtained in pursuance to Ext. B14, and the consequential Exts. B7 and B13 proceedings, will enure to the benefit of the plaintiff and the 2nd defendant as well and the suit for partition claiming rights in the plaint properties filed by the plaintiff is competent and proper. The judgment and decree of the lower Appellate Court are confirmed.