MEENAKSHI AMMA Vs. EAPPEN

JUDGEMENT

(1.) THIS appeal is by the plaintiffs in a suit for declaration or title and recovery of property. According to the plaintiffs, the suit property, comprising 3 acres 82 cents in S. No. 318/1 of Kozhimukku village and the contiguous north-western 2 acres 18 cents of S. No. 317/1, 6 acres in cumulo, formed part of their ancestors' purchase under Ex. D in 1055 m. E. and have been allotted to them in their family partition evidenced by Ex. VI dated 26 91101; but the pattah for the property had been mistakenly issued in favour of the 4th defendant's tarwad which mistake came to their knowledge only in 1116 when the 2nd defendant, having taken a conveyance from the 4th defendant, tried to take forcible possession of the property. Summary proceedings instituted by the plaintiffs under Chapter XII of the Criminal procedure Code having ended in favour of the 2nd defendant, they have instituted the present suit for declaration of their title to and recovery of the property with all the profits collected by the receiver appointed by the magistrate, and further mesne profits if the defendants assume possession from the receiver. Defendants 1 and 4, the latter being the wife of the former, contended that the suit property formed part of the properties of the 4th defendant's tarwad, that at the Settlement, pattah had been rightly issued to the tarwad, that in partition of the tarwad evidenced by Exs. G and H of the years 1092 and 1114 the suit property and contiguous lands had been allotted to the 4th defendant, who assigned them under Ex. J to the 3rd defendant from whom the 2nd defendant has purchased them under Ex. X and that thus the suit property belongs to her and was in her possession till the receiver in the summary proceedings assumed possession thereof. The Subordinate Judge found the suit property involved in Exs. D and VI to belong to the plaintiffs and in the possession of the plaintiffs' lessees till the receiving order of the magistrate and therefore decreed the suit. On appeal, the District Judge reversed him, holding that the suit (property was not included in Ex. D or Ex. VI but was the subject of partition in the 4th;defendant's tarwad under Exs. G and H, and that the property being Kandukrishi land the grant of pattah for it to the 4th defendant's tarwad extinguished any prior title thereto in any other person and that its possession was with the 4th defendant and his alienees and therefore dismissed the suit. Hence this second appeal.

(2.) EX. D of 1055 does not give survey numbers for the properties covered by it. But EX. VI the deed of partition on which the plaintiffs base their claim, being dated 26 91101, does give the survey numbers of the properties involved therein and yet does not include either S. No. 317 or S. No. 318. The allotment to the 1st plaintiff as per schedule F in the deed includes 70 parahs of paddy land being 5 acres 16 cents in S. No. 293/1a and 7 cents of garden land in S. No. 293/1 B; the allotment to the 2nd plaintiff as per schedule G and to the 3rd plaintiff as per schedule I include 1 acre 27 cents each in 50 parahs of paddy land being 3 acres 81 cents in S. No. 292/1b (the remaining 1 acre 27 cents of the latter survey number being allotted to another sharer as per schedule E ). Admittedly the above said are properties, and are the only properties included in EX. VI out of those purchased under EX. D. In EX. VI. , S. Nos. 293/1 and 292/1b are together described as 120 parahs in extent, though EX. D describes the same as 135 parahs. Thus there appears a deficiency of 15 parahs in the lands included in EX. VI wherein one parah of land is reckoned as equivalent to 7 cents. At that rate the deficiency would be about an acre only; but the suit property is 6 acres in extent.

(3.) COUNSEL for the plaintiffs-appellants pointed out that kandukrishi lands were of two kinds, Kandukrishi Thanathu lands and Kandukrishi pattom lands and that the rights of the holders might vary according to the kind of the land held. Even so, in Kuncheria Kuncheria v. Ouseph Abraham (48 tlr. 262 F. B.) where the property concerned was a Kandukrishi Pattom land, as the present suit properties are, a Full Bench of the Travancore High Court have unanimously adopted the decision in 29 TLR. 100 as applying to that property and held that the grant by the Government of pattah to a purchaser from an incompetent guardian of the minor heir of the former holder could not be avoided or the property recovered from the purchaser by the minor on attaining majority as the Government's right of disposal of the property was absolute. The grant of pattah to the 4th defendant's tarwad in the Settlement proceedings particularly when pattah for some properties admittedly purchased under the same conveyance had been taken by the plaintiffs tarwad must, in the wake of the rulings cited above, be held to conclude their rights as has been held in this case by the District Judge. The fact that in the partition of the plaintiffs' tarwad in 1101 (Ex. VI) the suit property was not included corroborates that inference. Ex. XII, the thandaper for S. Nos. 317/1 and 318/1, shows that from 1102 to 1114 it was the 4th defendant's tarwad that had been paying the kandukrishi tax on the suit property which was well over Rs. 100/-per annum. That is also corroborative of the inference of plaintiffs' non-possession of the suit property.