Judgment · High Court · 2012

A.S. 67/19967.P.K.VENUGOPAL, S/O.P.LAKSHMIKUTTY AMMA,KARUVAMBRAM AMSOM, MELAKKAM DESOM,P.O.KARUVAMBRAM , MANJERI, MALAPPURAM DISTRICT.LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED ASADDITIONAL APPELLANTS 2 TO 7 AS PER ORDER DTD. 6.6.11 IN IA. 4188/09. BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) ADDL.A2 TO A4 BY ADVS. SRI.K.M.SATHYANATHA MENON SRI.M.V.ANANDAN SRI.C.J.SOLOMONRESPONDENT(S):-------------------------1.P.SARADAMMA, W/O.LATE KUTTY SANKARAN NAIR,POOKKATTU KAMPURATH HOUSE,PANGATTU, KARUVAMBRAM AMSOM.2.GOURI, D/O.LATE KUTTY SANKARAN NAIR,RESIDING AT DO.DO.3.PANDALADASAN @ HARI, S/O.LATE KUTTY SANKARAN NAIR,RESIDING DO. DO.4.GIRIJA, RESIDING DO. DO. R1 TO R4 BY ADV. SRI.K.P.DANDAPANI (SR.) R1 TO 4 BY ADV. SRI.MILLU DANDAPANI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:tss P.N.RAVINDRAN, J.---------------------A.S. No. 67 of 1996---------------------------Dated this the 25th day of September , 2012 J U D G M E N TThis appeal arises from the decree and judgment passed by theCourt of the Subordinate Judge of Manjeri in O.S.No.43 of 1994. Thebrief facts of the case are as follows:2. Appellant No.1, the predecessor-in-interest of additionalappellants 2 to 7 instituted the suit for a declaration that thecertificate of purchase obtained by late Kuttisankaran Nair, thepredecessor-in-interest of the respondents/defendants as per Ext.P4order issued by the Land Tribunal, Manjeri in S.P.5401/1973 inrespect of the property described in Schedule II-B of the plaint is forand on behalf of the plaintiff as a co-owner thereof, that the plaintiffhas acquired jenm right in respect of the said properties and forpartition of the said properties into two equal shares and allotment ofone such share to the plaintiff. The plaint schedule property is aparcel of land 52 cents in extent, situate in re-survey No.21/2 ofManjeri Village, Eranad Taluk, Malappuram District. The plaintiffcontended that the suit properties together with an additional extentof 18 cents of land which was later acquired for widening a road, belonged in jenm to Manjeri Kovilakam, that late Ayyappan Nair AS No.67/962father of the plaintiff and her brother late Kuttisankaran Nair obtainedit on an oral lease in the year 1124 ME and was in possession of thesaid property, and that on his death on 24.1.1972 it devolved on theplaintiff and her brother Kuttisankaran Nair. It was further alleged thatlate Kuttisankaran Nair had in his capacity as a co-owner of theproperty obtained a certificate of purchase from the Land Tribunal, Manjeri in S.P.5401/1973 and that the suit property belongs to and isin the joint possession of the plaintiff and her brother KuttisankaranNair. It was further alleged that a portion of the property belonging tothe plaintiff and Kuttisankaran Nair was acquired for the purpose of aroad, that the plaint schedule property is the balance extent remainingafter such acquisition and that as a co-owner, the plaintiff is entitled tohalf share in the suit property. 3. The defendants filed a written statement resisting the suit. They contended interalia that late Ayyappan Nair had no right over theplaint schedule property, that late Kuttisanakran Nair, husband of thefirst defendant and father of defendants 2 to 4 obtained the suitproperty on lease from Manjeri Kovilakam in Medam 1124 and thateversince he was in possession and enjoyment thereof. The defendantscontended that though the plaintiff had filed an application inS.P.5401/1973 under section 72 F(4) of the Kerala Land Reforms Act AS No.67/963read with rule 8(1) of the Kerala Land Reforms (Vesting andAssignment) Rules 1970, contending that the property was taken onlease by her father and not by late Kuttisankaran Nair, the saidapplication was dismissed and thereupon, by Ext.B4 order passed on10.4.1974 a certificate of purchase was issued in favour of lateKuttisankaran Nair and therefore, the present claim is barred byresjudicata. The defendants also contended that 18 cents out of the 50cents of land which was taken on lease by late Kuttisankaran Nair wasacquired for the purpose of a road and the compensation in respect ofthe said parcel of land was granted only to Kuttisankaran Nair. Theyalso contended that after the death of Ayyappan Nair on 24.1.1972 thejoint properties were partitioned as per Ext.B1 partition deed dated28.1.1975.4. On the side of the plaintiff, PW's 1 and 2 were examined andExts.A1 to A4 were marked. On the side of the defendants, the firstdefendant was examined as DW-1 and Exts.B1 to B14 were marked. The documents produced by the Manager of Manjeri Kovilakam, examined as DW-2 were marked as Exts.X1 to X8. The trial court onan analysis of the evidence oral and documentary available in the caseheld that in view of Ext.B4 order, the present suit is barred byresjudicata, that the plaintiff has no right over the suit property and AS No.67/964that her right, if any, was lost by adverse possession and limitation. The suit was accordingly dismissed. Hence this appeal.5. I heard Sri.S.V.Balakrishna Iyer, learned Senior Advocateappearing for the appellants and Smt. Sumathi Dandapani, learnedSenior Advocate appearing for the respondents. I have also gonethrough the pleadings and the materials on record. The court belownon-suited the appellant mainly on two grounds. The first ground isthat in view of Ext.B4 order passed by the Land Tribunal, Manjeri inS.P.5401/1973, the present suit is barred by resjudicata. The secondground is that after the death of late Ayyappan Nair on 24.1.1972, theplaintiff and the predecessor-in-interest of the defendants hadexecuted Ext.B1 partition deed dated 28.1.1975 as per which, theimmovable properties belonging to late Ayyappan Nair werepartitioned, that the suit properties were not partitioned, nor was anystipulation made to effect that any other item of immovable property isavailable for partition and therefore, the plaintiff cannot be heard tocontend that the suit properties are available for partition. The learnedsenior counsel appearing for the appellant vehemently contended thatthe evidence in the case on hand will show that the entrustment of theplaint schedule property was to late Ayyappan Nair and not to thepredecessor-in-interest of the defendants, and therefore, the court AS No.67/965below erred in holding that the entrustment was to the predecessor-in-interest of the defendants. A reading of Ext.B4 order passed by theLand Tribunal, Manjeri on 10.4.1974 in S.P.5401/1973 discloses thatthough the appellant/plaintiff had filed an application in form F undersub section (4) of section 72F of the Kerala Land Reforms Act readwith rule 8(1) of the Kerala Land Reforms (Vesting and Assignment)Rules, 1970 and intervened in S.P.5401/1973 contending that thelease was in favour of late Ayyappan Nair, she did not let in anyevidence in support of her claims and contentions and consequentlythat application in form F was rejected, that thereafter a preliminaryfinding was recorded that the predecessor-in interest of the defendantsis the tenant of the property and after the preliminary finding wasrecorded, notice in form H was duly served on all the parties includingthe plaintiff, but no objection was raised as regards the preliminaryfinding. It is also not in dispute that challenging Ext.B4 order theappellant/plaintiff had filed A.A.No.210 of 1997 before the AppellateAuthority (Land Reforms), Kannur accompanied by an application tocondone the delay of more than 19 years in filing that appeal. Theapplication to condone delay was dismissed and consequentlyA.A.No.210 of 1997 was also dismissed by order passed on 28.3.2000.A certified copy of the order passed by the Appellate Authority (Land AS No.67/966Reforms), Kannur dismissing A.A.No.210 of 1997 is produced alongwith I.A.No.631 of 2012 filed by the respondents under Order XLI rule27 of the Code of Civil Procedure to receive the said order as additionalevidence. The respondents have in the affidavit filed in support of thesaid application positively averred that Ext.B4 order has attainedfinality with the dismissal of A.A.No.210 of 1997 and that the judgmentdismissing A.A.No.210 of 1997 has also attained finality. In suchcircumstances, having regard to the findings and observation in Ext.B4order and the fact that Ext.B4 order has attained finality with thedismissal of A.A.No.210 of 1997 filed by the appellant before theAppellate Authority (Land Reforms), Kannur, the plaintiff cannot beheard to contend that late Kuttisankaran Nair, predecessor-in-interestof the respondents was not the cultivating tenant of the holding. ThisCourt cannot in this appeal examine the correctness of the findingentered by the Land Tribunal in Ext.B4 order or the judgment of theAppellate Authority (Land Reforms), Kannur dismissing A.A.No.210 of1997. As rights of parties stand settled by the findings andobservations in Ext.B4 order which has attained finality, it has to benecessarily held that the claim made by the appellants is barred byres-judicata. Such being the situation, I find no grounds to interferewith the judgment under challenge. AS No.67/967The appeal fails and is accordingly dismissed. However havingregard to the relationship between the parties, I direct that the partiesshall bear their respective costs. P.N.RAVINDRAN, (JUDGE)rkc/vps AS No.67/968