APPA Vs. MUTHANI

JUDGEMENT

(1.) This appeal by the defendant in a suit for partition arises under the following facts:

(2.) The suit property belonged to one Kunhithiyan, who sold it on 15-7-1960 to two persons, Appa and Paradeshi. On 21-11-1960 the defendant obtained an order Ext. B5 against Appa and Paradeshi from the Tahsildar that he was holding the suit property including the building therein under an oral lease granted by Kunhithiyan. Appa and Paradeshi thereupon filed a suit, O.S. 55 of 1961 in the Munsiff's Court, Hosdrug for cancelling the order Ext. B5 and for possession of the property alleging that the defendant was merely a tenant of the building under a rent chit of 1949 and that he had wrongfully trespassed on the land, in the wake of Ext. B5. After the suit Appa who was the first plaintiff died and his legal representatives were brought on record, as additional plaintiffs 3 to 6 and additional defendants 2, 3, 5, 7 and 10 to 12. Pending the suit the defendant purchased the half share of Paradeshi, who was plaintiff 2, as also the rights of certain heirs of Appa. Besides contending that he was a Kuzhikanamdar of the property and not merely a tenant of the building, the defendant set up these assignments, pleading that he was entitled to 17/22 shares in the property. The learned Munsiff found that the oral kuzhikanam was untrue and that the defendant was a mere trespasser. As to the subsequent assignments, it was held that they were vitiated by lis pendens and could not therefore be set up to defeat the lights of the plaintiffs. He also found that additional defendant 10, Choyichi was not the legally wedded wife of Appa. The learned Munsiff granted the plaintiffs a decree as prayed for, leaving the defendant to establish his rights in other appropriate proceedings. Exts. Al and A3 dated 26-2 -1964 being respectively the judgment and decree in that case. On appeal, the learned Subordinate Judge confirmed the finding, that the defendant was a trespasser and had no kuzhikanam. He however held that while defendants 10 to 12 were not the heirs of Appa defendant 10 not being the legally wedded wife and defendants 11 and 12 who are her children, not being the legitimate issue of Appa and that the assignment by them could convey no rights to the defendant, the other assignments in his favour were valid and not vitiated by lis pendens. As these shares outnumbered those of the plaintiffs and as the defendant was in possession, the Subordinate Judge thought that he should not be driven to a fresh suit. Plaintiffs 3 to 6 and defendant 5 - heirs of Appa who had not assigned their shares to the defendant - were thus given a decree for symbolical possession of the property with a direction that they should file a suit for partition. The appellate decree Ext.A4 (Ext. A2 is the judgment) is dated 20-7-1966.

(3.) In 1967 the five plaintiffs who were plaintiffs 3 to 6 and defendant 5 in O. S.55 of 1961 brought the present suit for partition and separate possession of 5/16 shares with mesne profits. The defendant resisted the suit contending that he was entitled in all to 18/22 shares including the shares of Choyichi, Madhavi and Sulochana (who were defendants 10 to 12 in O. S.55 of 1961) and the share of plaintiff 2 which he had purchased after the suit. By an additional written statement he put forward a further defence that he was entitled to the benefit of S.7 of the Land Reforms Act (Act 1 of 1964).