ALIYARU KUNJU ABDUL MAJEED v. ALIYARU KUNJU SULTAN PILLAI

R2 to R16 REP. BY ADV. SRI.G.UNNIKRISHNAN SHINOD.G.P AND D.V.RAMESH SHANKAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.146/96 IN AS 30/96 DISMISSED /2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ A.S.NO.30 OF 1996 ------------------------------------------ Dated 24th February 2009 JUDGMENT First defendant in O.S.273/1984 on the file of Sub Court, Thiruvananthapuram is the appellant. Respondent is the plaintiff. On his death additional respondents 2 to 16 were impleaded as legal heirs. Suit was filed for partition and separation of half share due to first respondent. Case of first respondent in the plaint is that plaint A schedule properties were purchased jointly by first respondent, appellant and second respondent under Ext.A1 sale deed dated 29-6-1960 with their joint funds and purchasers were thereafter in joint possession and enjoyment of the property and second respondent got himself divided from others by an oral partition and the share due to second defendant was separately allotted to him and the appellant and respondent are in joint possession of the rest of the properties which is included in plaint B schedule property. It was contended that second defendant sold the property allotted to him and AS 30/96 2 item No.2 in Ext.A1 sale deed was sold by all the joint owners before separation of share of second defendant and it was the remaining properties that were divided and second defendant was separated and only appellant and respondent are entitled to shares in the plaint A schedule properties. It was contended that in Ext.A1 sale deed, item No.2 of the plaint B schedule property was described as 3 acres 43 cents in resurvey No.2913/2 and at that time it was a government land and appellant being the younger brother of the respondent and was more educated than the other brothers, for the purpose of convenience, after due deliberation license from the Rubber Board was taken in the name of the appellant. But the properties were in joint possession and enjoyment of the co-owners. Contending that in spite of the demand for partition, appellant refused it on the ground that item No.2 of the plaint B schedule property, which is item No.3 of plaint A schedule property belongs to him absolutely and it was assigned in his favour by the government. It is contended that assignment in the name of appellant was obtained on the strength of joint possession and so it shall enure to the benefit of all the assignees under Ext.A1 and AS 30/96 3 therefore respondent is entitled to an equal share. It was contended that though item No.2 of plaint schedule property is described as in survey No.2913/2 it is situated in survey No.4607/1 and 2913/4 and properties are lying within the boundaries shown in Ext.A1 and therefore respondent is entitled to get his share separated.

2. Defendants together filed a joint written statement contending that neither the respondent nor the second defendant obtained joint possession of the properties under Ext.A1 and the consideration for the sale deed was negligible and even before the sale deed, second defendant has been in possession of 3 acres 43 cents in survey No.4607/1 and 2913/4 and the properties in Ext.A1 are situated near the above properties and defendants approached the jenmi and requested for formal sale deed so that they can evict the persons in actual possession of that properties and as respondent was very influential his name was also included in the sale deed though he did not derive any right in the property. It was contended that in order to mitigate the loss sustained by the defendants in the transaction, they had to release their jenm right over AS 30/96 4 a portion of item No.1 of plaint A schedule property and entire item No.2 to the persons in possession, who agreed to take it and jenm right of the respondent and defendants were transferred to the persons who are in actual possession of the property and the remaining portion of the properties included in Ext.A1 sale deed are in fact in the possession of strangers and item No.2 of the plaint B schedule property does not form part of the property covered by Ext.A1. It is contended that item No.1 of plaint A schedule property was in the possession of legal heirs of Madhavan Pillai and one Sulthan Pillai, son of Kochappu and item No.2 is in the possession of Sulthan Pillai Yousuf Pillai and Beevi Kunju Parathammal and item No.2 of plaint A schedule property comprised in re-survey 2913/2 did not have the extent mentioned in the plaint and that property is in the possession of Chellappan and item No.4 is in the possession of Bushra Ummal Pathummal and Krishna Kurup Madhavan Pillai and thus plaint schedule properties are not in the possession of respondent or the defendants and are in the possession of strangers. It is contended that the property in the possession of second defendant was transferred to first defendant, who AS 30/96 5 in turn applied for assignment of the property and the property comprised in survey No.2913/4 and 4607/1 was assigned in favour of the appellant in 1965 and obtained patta and thereafter with his own funds he converted it into rubber plantation and respondent has no right over the same and as it is not part of the property covered by Ext.A1, he is not entitled to a share. After item No.2 of plaint B schedule property got amended showing that it is in survey No.4607/1, 2913/4 and 2913/2 an additional written statement was filed contending that respondent is not entitled to any right in the said property also.

3. Subsequently second defendant died and as he did not claim any right, his legal heirs were not impleaded in the suit. Learned Sub Judge on the evidence of Pws.1 and 2 and Exts.A1 to A5 and Exts.C1 to C4 on the side of plaintiff and Exts.B1 to B14 and X1 series and Dws.1 to 4 on the side of defendants granted a decree finding that item No.2 of plaint B schedule property jointly belonged to appellant and respondent and each of them is entitled to one share. A preliminary decree was passed. Appeal is filed challenging the preliminary decree. AS 30/96 6

4. Learned Senior counsel appearing for the appellant and learned counsel appearing for respondent were heard.

5. Learned Senior counsel appearing for appellant argued that suit was instituted based on the contention that item No.2 of the plaint B schedule property is item No.3 of plaint A schedule property and it is part of the property obtained under Ext.A1 sale deed and evidence establish that item No.2 of plaint B schedule property does not form part of the property covered under Ext.A1 and therefore court below should not have granted a decree for partition. Learned Senior counsel pointed out that even though plaint A schedule properties consists of 4 items viz. 96 cents in R.S.No.2914/2, 1 acre 23 cents in R.S.No.2914/3, 3.43 acres in R.S.No.2913 and 1 acre 48 cents in R.S.2914/1 respondent has claimed partition of only item No.2 of the plaint B schedule properties and that too on the contention that it forms part of Ext.A1 property. It was pointed out that the said property covered under Ext.A1 is a plot which lies to the west of R.S.4606/1 and 5 and to the north of the property of Parameswaran, to the east of property of Abubacker and to the south of the AS 30/96 7 property of Parameswaran and Exts.C1 to C4 establish that the property claimed exclusively by the appellant under patta issued under Ext.X1 proceedings does not form part of the properties in Ext.A1 and therefore decree is unsustainable. Learned Senior counsel pointed out that Ext.X1 file shows that the total extent of 2913/1 is one acre two cents, R.S.No.2913/2 is 7 cents, 2913/3 is 80 cents and 2913/4 is two acre fifty six cents and they together form 4 acres 45 cents and Ext.B12 establish that 1 acre 2 cents in R.S.No.2913/1 has been the property of Ashraf and 7 cents in R.S.No.2913/2 is that of Gangadharan Sasidharan and 1 acre 2 cents in R.S.2913/1 is that of Mohammed Ashraf. It was also argued that Ext.B11 sale deed dated 15/6/1996 establish that 80 cents in R.S.2913/3, originally belonged to Musthaffa Kunju and it was assigned on 15/9/1969 to Saithul Beevi and therefore it is clear that on the date of Ext.A1 sale deed all those properties were outstanding in the possession of strangers and so possession was not obtained under Ext.A1. It was also pointed out that though Ext.A1 shows that portions of the property was outstanding in the possession of the mortgagee under mortgage deed of AS 30/96 8 1286/1952 and superior mortgage deed of 2081/1956, Ext.A4 shows that mortgage was redeemed and under Ext.A2 the properties were assigned on the same day and though Ext.A3 and Ext.A4 are only in respect of 75 cents, under Ext.A2 the total extent of 1 acre 23 cents in R.S.No.2913 is transferred. Learned Senior counsel argued that though court below relied on Exts.C1 to C4 to hold that item No.2 of the plaint B schedule property claimed by the appellant forms part of Ext.A1 sale deed, court below should not have relied on the identification as the Commissioner and the Taluk Surveyor did not identify the property with reference to either with reference to survey number or boundaries and therefore the decree is unsustainable.

6. Learned counsel appearing for respondent argued that Ext.X1 file shows that property was assigned on the application filed by the appellant based on the possession under Ext.A1 and the mahazars prepared shows that his assignor has been in possession of said property for 30 years. It was pointed out that Ext.A1 shows that on the date of Ext.A1 sale deed appellant was only aged 18 years and second defendant 30 years and if in 1962, when the property was AS 30/96 9 allegedly assigned in the name of the appellant by second defendant and the case of previous possession of the property by the second defendant is to be accepted he would only a small child at that time and therefore case of the appellant cannot be believed. Learned counsel also argued that appellant is only claiming possession of the property got assigned under Ext.X1, based on previous possession and his previous possession is traced out to the previous possession of second defendant and when evidence establish that that possession could only be under Ext.A1, court below rightly granted a decree. Learned counsel argued that even if the property is not properly identified, opportunity is to be granted for proper identification and for that purpose suit is to be remanded back to the trial court.

7. Suit being one for partition based on claim that item No.2 of plaint B schedule property forms part of the properties jointly obtained by the respondent, appellant and second defendant under Ext.A1, respondent is entitled to the decree only on establishing that the properties covered under Ext.A1 include the disputed property namely item No.2 of the AS 30/96 10 plaint B schedule properties. As rightly pointed out by learned Senior counsel, Ext.A1 shows that item No.3 of the said properties, which according to the respondent is item No.2 of the plaint B schedule property, is 3 acre 43 cents in R.S.2913. Separate boundary for said 3 acre 43 cents is not shown. Instead boundaries are given as the common boundaries for the four items of properties viz. 96 cents in R.S.2914/2, 1 acre 23 cents in 2914/3, 3 acres 43 cents in 2913 and 1 acre and 48 cents in 2914/1. Therefore, if item No.2 of the plaint B schedule property is to be divided as the property jointly belonging to the appellant and respondent, it should form part of the property covered under Ext.A1 and should lie within the common boundary. Even though survey number given for item No.3 of Ext.A1 properties is R.S.2913 subsequent to the submission of Exts.C1 report and C2 plan identifying the disputed property the plaint was amended stating that though survey number shown in Ext.A1 is R.S.2913, 2 acre 56 cents of that property is in R.S.2913/2, 87 cents in R.S.4607/1. As per findings of the court below item No.2 of plaint B schedule property is 87 cents in R.S.4607 and 2 acre 56 cents in R.S.2913/2. Evidence of Dws.2 and 4 show that AS 30/96 11 the said property was not properly identified with reference to the boundaries seen in Ext.A1. As stated earlier if item No.2 of plaint B schedule property forms part of the properties covered under Ext.A1, the property must be to the east of R.S.4606/1 and 4606/5 and to the north of property of Parameswaran and east of the property of Abubacker and south of property of Parameswaran. As per Ext.C4 plan, which was relied upon by the learned Sub Judge item No.2 of plaint B schedule properties which is comprised in 2913/2 and 4607/1 would be to the east of R.S.4606/1 and not to the west of R.S.4606/1. When Ext.A1 shows the eastern boundary as R.S.No.4606 it can never be to the east of R.S.No.4606. From the evidence of Dws.2 and 4 it is clear that Commissioner did not identify the property with reference to survey number or the persons in possession as referred in Ext.A1. Even at the time of evidence no attempt was made to explain the possession or ownership of the respective properties, with reference to Ext.A1 and to establish that the property identified by the Commissioner is the property which is comprised within the boundaries shown in Ext.A1. On the other hand, there is intrinsic evidence to establish that the AS 30/96 12 property as identified by the Commissioner and accepted by the learned Sub Judge could not be the property covered by Ext.A1.

8. As per Ext.C4 plan and the identification made by Dws.2 and 4 western boundary of R.S.No.2913/2 is 1 acre 2 cents of plot in R.S.No.2913/1. Ext.B12 establishes that said 1 acre 2 cents in 2913/1 is the property of Ashraf. Therefore when the western boundary of the property covered by Ext.A1, is the property of Aboobacker and western boundary of R.S.2913/2 the two acre fifty six cents plot identified by the Commissioner, is the property of Ashraf as proved by Ext.B12, this cannot be the property covered by Ext.A1. Similarly, when Ext.A1 shows that eastern boundary is R.S.4606/1 and R.S.4606/5, as per Ext.A4 survey plan R.S.4606/1 lies further to the west of 87 cents comprised in 4607/1. Ext.C4 shows that in between 87 cents plot in R.S.4606, a 10 cents plot in R.S.No.4607 is in the possession of a third party. In any case, when the property covered under Ext.A1 lies to the west of R.S.4606 and R.S.4607/1 lies to the east of 4606, item No.2 of plaint B schedule property cannot be the property covered by Ext.A1. Therefore, it is AS 30/96 13 absolutely clear that property claimed by the appellant as item No.3 of Ext.A1 property is not item No.2 of plaint B schedule properties which is identified by the Commissioner in Ext.A4 plan.

9. The trump card of the respondent is that total extent claimed by the appellant tallies with the remaining extent of 3 acre 43 cents in R.S.2914/3 and therefore it could only be the property covered under Ext.A1. Other argument is that when possession is claimed by the appellant from second defendant and possession could be traced out only from Ext.A1, the finding of learned Sub Judge that property got assigned by the appellant could only be 3 acres 43 cents covered as item No.3 of Ext.A1 property is to be accepted. For the sole reason that total extent covered by the assignment deed in favour of the appellant is the balance extent or that appellant could not establish the previous possession of the said 3 acres 43 cents, respondent cannot get the decree. Respondent could succeed only on establishing that the said property was the one obtained under Ext.A1. It is more so, because respondent has no case that the property obtained assignment by appellant is an additional extent, over AS 30/96 14 and above the property covered by Ext.A1. Respondent could either succeed or fall on his case that item No.2 of the plaint B schedule property forms part of Ext.A1 property. When the evidence establish that item No.2 of the plaint B schedule property could not be item No.3 of A schedule property covered under Ext.A1, respondent cannot be granted a decree for the failure of the appellant to conclusively establish his previous possession or even on the preponderance of probabilities.

10. Therefore analysing the entire evidence it can only be found that item No.2 of plaint B schedule property is not proved to be part of property covered under Ext.A1 and to establish that item No.2 of plaint B schedule property. Considering the facts and circumstances of the case it is not in the interest of justice to remand the suit when appellant has no case that opportunity was not granted for proper identification. On the other hand, respondent sought to prove the case based on identification made by DW2 and DW4. Evidence of Taluk Surveyor as DW4 establish that Taluk Surveyor did not properly identify the property covered under Ext.A1. In fact, no attempt was made to AS 30/96 15 get the property identified with reference to Ext.A1. On the other hand attempt was to identify item No.2 of plaint B schedule property and to show that it forms part of the property covered under Ext.A1. Plot of 2 acres 56 cents in R.S.2913/2 was fixed not based on the boundaries in Ext.A1 but on the alleged possession. On the evidence I do not find it necessary to remand the suit as sought for. As the respondent did not establish that item No.2 of plaint B schedule properties and instead is the property obtained by assignment by the appellant and it does not form part of Ext.A1 property, respondent is not entitled to the decree for partition of that property or for allotment of his share. Preliminary decree granted by learned Sub Judge is therefore set aside. Appeal is allowed. Decree and judgment in O.S.273 of 1984 is set aside. Suit stands dismissed. No costs. uj. M.SASIDHARAN NAMBIAR, JUDGE. AS 30/96 16 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT A.S.NO.30 OF 1996 24th February 2009 ============================