M.PONNAN Vs. THE APPELLATE AUTHORITY (LAND REFORMS)

JUDGEMENT

(1.) As these matters are closely interlinked, they are disposed of by this common judgment. The parties are referred to in this judgment as they appear in the suit from which the second appeal arose.

(2.) The suit is one for partition. Three items of immovable properties are sought to be partitioned in the suit, of which the first is an item measuring 68 cents, the second is an item measuring 28 cents and the third is an item measuring 2 acres and 94 cents. The suit properties are part of a larger extent held by 4 persons viz, Appu, Theyyan, Muthu and Velayudhan in terms of Ext.A1 lease deed of the year 1946. The lessees under Ext.A1 lease deed have partitioned among them the properties covered therein orally in the year 1968. The plaintiff is the brother of Velayudhan. The case of the plaintiff is that Velayudhan obtained the lease evidenced by Ext.A1 on his behalf as well; that suit properties are properties kept in common at the time of the oral partition effected by lessees under Ext.A1 lease deed and that the plaintiff is therefore entitled to 1/8 share in the suit properties. Defendants 7 to 10 are the successors of Muthu. They contested the suit contending that 2 acres and 88 cents of property out of 2 acres and 94 cents shown as item No.3 in the plaint is the property allotted to Muthu in terms of the oral partition; that defendants 7 to 10 are in exclusive possession of the said property; that they have partitioned the said property among them by a registered instrument of the year 1973 and that the said 2 acres and 88 cents of property is, therefore, not partible.

(3.) Prior to the institution of the suit, at the instance of defendants 7 to 10, suo motu proceedings were initiated by the Land Tribunal, Palakkad in respect of 2 acres and 88 cents of property referred to by defendants 7 to 10 in their written statement under Section 72C of the Kerala Land Reforms Act and the Land Tribunal ordered assignment of the said land in favour of defendants 7 to 10. Ext.B1 is the common order passed by the Land Tribunal in this connection on 05/06/1989. The plaintiff intervened in the said proceedings before the Land Tribunal and contended that the property in respect of which proceedings are initiated is a property kept in common by the lessees under Ext.A1 lease and that defendants 7 to 10 are, therefore, not entitled to the assignment sought in the proceedings. The Land Tribunal ordered assignment of the property rejecting the said contention of the plaintiff. The trial court did not place any reliance on Ext.B1, taking the view that the said order has not become final. Despite the finding in Ext.B1, the trial court found that the suit properties are properties kept in common by the lessees under Ext.A1, and passed a preliminary decree in the suit on that basis declaring the 1/8 share of the plaintiff over the suit properties. Defendants 7 to 10 and others challenged the decision of the trial court in appeal. The appellate court, on a reappraisal of the evidence on record, affirmed the findings rendered by the trial Court and dismissed the appeal. Defendants 7 to 10 and others, who are aggrieved by the concurrent decisions of the courts below have come up in the above second appeal.