George Paul @ Rajan, vs John

George Paul @ Rajan, vs JOHN

Type Court Judgment Court Kerala Decided Feb 25, 2020

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https://sooperkanoon.com/case/1813916

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Citation: sooperkanoon.com/1813916
Court: Kerala High Court
Judge: Honourable Mr. Justice P.Somarajan
Decided On: Feb 25, 2020
Case Number: SA/528/2000

Parties & Advocates

Appellant / Petitioner

George Paul @ Rajan,

Respondent

JOHN

Excerpt

.....the 8th defendant is the appellant. a suit for partition and injunction dismissed by the trial court, but in appeal it was decreed against which the 8 th defendant came up with this appeal.2. the plaintiffs are claiming co-ownership rightover the property based on 2 documents, a gift of the year 1125me and a document of the year 1950. item nos.2 and 3 properties were obtained by one ulahannan by virtue of gift of the year 1125me. his son luke obtained item no.1 property by virtue of document of the year 1950. the prior document of the said property is the partition of the year 1124me. the 8th defendant in the suit is the brother-in-lawof the 2nd plaintiff. according to the plaintiff, he was permitted to manage the property.3. the 8th defendant inter alia contended that, hesa.no.528 of 2000(d) 5 obtained the property by virtue of ext.a1, assignment of lease from one govindan, who obtained an oral lease of the property in the year 1950, and hence claimed fixity of tenure over the property. the question was referred under section 125 (3) of the kerala land reforms act, and land tribunal decided the question in favour of the 8th defendant, which was accepted by the trial court and the suit wasdismissed. in appeal, the finding rendered by the land tribunal was reversed. consequently a preliminary decree for partition was granted, by rejecting the claim of 8 th defendant. aggrieved by the said decree and judgment, the 8th defendant came up with this appeal.4. at the second appellate stage, application in i.a.no.1/2020 filed for accepting an additional evidence under order 41 rule 27 of the cpc and a purchasecertificate was produced along with the application. the purchase certificate now produced is admittedly obtained during the pendency of the first appeal, after the issue was answered by the land tribunal on a reference under section 125(3) of the kerala land reforms act. that would sa.no.528 of 2000(d) 6 show what is behind in obtaining a subsequent purchase .....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941 SA.No.528 OF 2000(D) AGAINST THE DECREE AND JUDGMENT IN AS 231/1994 DATED 29-07-1999 OF DISTRICT COURT, KOTTAYAM AGAINST THE DECREE AND JUDGMENT IN OS 424/1986 DATED 15-11-1993 OF MUNSIFF COURT, KANJIRAPPALLY APPELLANT/9th RESPONDENT/8TH DEFENDANT: GEORGE PAUL @ RAJAN, HEAD CONSTABLE, RESIDING AT POLICE QUARTERS, F.24, MUTTAMBALAM, VIJAYAPURAM, KOTTAYAM. BY ADVS. SRI.SHAJI THOMAS SRI.JEN JAISON SRI.K.RAMACHANDRAN RESPONDENTS/APPELLANTS AND DEFENDANTS: 1 JOHN, S/O.AVIRAH, THOTTUVAYIL HOUSE, RESIDING AT CHEMPERY, ERUVESHI AMSOM, THALIPARAMBU REPRESENTED BY POWER OF ATTORNEY HOLDER ABRAHAM MATHEW, POOVATHANIYIL, VADAKKUMBHAGAM, CHIRAKADAVU, KOTTAYAM. 2 CHANDY, S/O.AVIRAH, THOTTUVAYIL HOUSE, NADUVIL VILLAGE, THALIPARAMBA, KANNUR. 3 ANNAMMA, W/O.SCARIA, SA.No.528 OF 2000(D) 2 ALUMKAL KAROTTU, ANIKKADU, AKALAKUNNAM, KOTTAYAM. 4 JOSEPH, S/O.AVIRAH, THOTTUVAYIL, CHEMPERI KARA, ERUVESHI VILLAGE, THALIPARAMBA, KANNUR. 5 ABRAHAM, S/O.AVIRAH, OF .DO. 6 ALEYKUTTY, ANADABHAVAN, EDAMATTOM, POOVARANI, KOTTAYAM. 7 ALEYKUTTY, D/O.THOMMEN, ELANGIKKAL HOUSE, MEVADA, MEENACHIL, KOTTAYAM. 8 PAPPACHAN, S/O.THOMMEN, OF .DO. .DO. 9 MATHEW, S/O.THOMMEN OF .DO. .DO. ADDL. 10 THE ST.ANTONYS CATHOLIC CHURCH, VANCHIMALA, KALAKETTY, KOTTAYAM, REPRESENTED ITS TRUSTEE TOMY THOMAS, AGED 36 YEARS, S/O.THOMAS, RESIDING AT OTTAPLACKAL VANCHIMALA, KALAKETTY, KOTTAYAM. (ABOVE RESPONDENT IMPLEADED AS ADDL.10TH RESPONDENT AS PER ORDER DATED 23.11.2007 IN IA.1952/2007 IN RSA.) ADDL. 11 A.K.VASU PILLAI AGED 73 YEARS, S/O.SIVARAMA PILLAI, R/AT AZHEECKAL HOUSE, SA.No.528 OF 2000(D) 3
KAVUMBHAGAM P.O., CHERUVALLY, KOTTAYAM DISTRICT-686 519. (ADDL.RESPONDENT NO.11 IS IMPLEADED BEING THE PENDENTE LITE TRANSFEREE AS PER ORDER DATED 12.02.2020 IN IA.2/2020.) R10 BY ADV. SMT.RUBY K.JOSE R1 BY ADV. SRI.H.B.SHENOY R10 BY ADV. SRI.B.RAJESH (KOTTAYAM) R1, R11 BY ADV. B.ASHOK SHENOY R11 BY ADV. SMT.C.G.PREETHA R11 BY ADV. SRI.P.S.GIREESH R11 BY ADV. SRI.RIYAL DEVASSY R11 BY ADV. SHRI.DR.ABHILASH O.U. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.02.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No.528 OF 2000(D) 4

JUDGMENT

Dated this the 25th day of February, 2020 The 8th defendant is the appellant. A suit for partition and injunction dismissed by the trial court, but in appeal it was decreed against which the 8 th defendant came up with this appeal.

2. The plaintiffs are claiming co-ownership right

over the property based on 2 documents, a gift of the year 1125ME and a document of the year 1950. Item nos.2 and 3 properties were obtained by one Ulahannan by virtue of gift of the year 1125ME. His son Luke obtained item no.1 property by virtue of document of the year 1950. The prior document of the said property is the partition of the year 1124ME. The 8th defendant in the suit is the brother-in-law

of the 2nd plaintiff. According to the plaintiff, he was permitted to manage the property.

3. The 8th defendant inter alia contended that, he

SA.No.528 OF 2000(D) 5 obtained the property by virtue of Ext.A1, assignment of lease from one Govindan, who obtained an oral lease of the property in the year 1950, and hence claimed fixity of tenure over the property. The question was referred under Section 125 (3) of the Kerala Land Reforms Act, and Land Tribunal decided the question in favour of the 8th defendant, which was accepted by the trial court and the suit was

dismissed. In appeal, the finding rendered by the Land Tribunal was reversed. Consequently a preliminary decree for partition was granted, by rejecting the claim of 8 th defendant. Aggrieved by the said decree and judgment, the 8th defendant came up with this appeal.

4. At the second appellate stage, application in I.A.No.1/2020 filed for accepting an additional evidence under Order 41 Rule 27 of the CPC and a purchase

certificate was produced along with the application. The purchase certificate now produced is admittedly obtained during the pendency of the first appeal, after the issue was answered by the Land Tribunal on a reference under Section 125(3) of the Kerala Land Reforms Act. That would SA.No.528 OF 2000(D) 6 show what is behind in obtaining a subsequent purchase

  certificate   under   a   parallel       proceedings   by   the   8 th
  defendant.     The same was produced as an additional
  evidence at the second appellate stage.          When there is a

reference under Section 125(3) of Kerala Land Reforms Act to decide the benefit conferred under the Act and when it was answered by the Land Tribunal, the parties would stand bound by the same. It is not permissible to have a parallel proceedings on the same matter which would result in conflicting decisions and it is not permissible to have a parallel proceedings with respect to the matter already referred under Section 125 (3) of Kerala Land Reforms Act, after the adjudication of the issue raised by the concerned

Land Tribunal. Issuance of a purchase certificate during the pendency of the first appeal is really impermissible and it has no legal validity in view of the decision rendered on a reference under Section 125(3) of the Kerala Land Reforms

  Act.   The said document cannot be accepted in evidence
  under Order 41 Rule 27 CPC.              Hence the application in
  I.A.No.1/2020 is here by rejected.          The non production of

the said document in the first appellate court will not SA.No.528 OF 2000(D) 7 constitute any substantial question of law. As such the present appeal cannot be sustained on the said ground.

5. As per Ext.A1 document of the year 1975, the 8th

defendant came into possession of the property. Ext. A1 is an unregistered assignment of lease by one Govindan, who had obtained an oral lease from the family of the plaintiffs in the year 1950, for which no documentary evidence adduced. Admittedly the value of lease comes to more than

Rs.100 and as such it requires registration. The first appellate court rejected Ext.A1 on the ground of its non- registration. But the legal position was very much settled that when Ext.A1 document was found to be genuine, duly executed by the parties concerned and the same can be used for collateral purpose showing the relation between the parties to the document. Ext.A1 document should be appreciated in the light of document produced by the 8 th defendant showing payment of tax, though stands in the

name of its original owner Ulahannan Luke. Tax receipt pertaining to the property for the last several years (17 Nos.) were produced by the 8 th defendant, which would SA.No.528 OF 2000(D) 8 prima facie show the possession over by the property atleast for the period wherein they have paid the Basic Tax in respect of the property, can safely be accepted. Ext. A1, if it is found to be executed by Govindan as on the date of the execution would show the relationship and diversion of possession under the document. To that extent the document can be relied on and when coupled with payment of tax for several years as evident from 17 receipts it would show that the 8th defendant was in possession of the

property. He is not a sharer, but there is no prayer for recovery of possession incorporated in the suit for partition from the 8th defendant. The possession of the 8 th defendant is somewhat admitted by the plaintiff by advancing a case that he was managing the property under a permission. Necessarily there should be a prayer for recovery of possession, otherwise a simple suit for partition will not stand and it is not possible to pass a final decree without the possession of the property by any of the co-owners. The legal position may be different in the case of a permissive possession as in the case of a subsisting lease or mortgage.

SA.No.528 OF 2000(D) 9

6. The claim of the 8th defendant that they are

possessing the property in derogation of the right of original owner and claiming provisions contained in the KLR Act would itself show that unless there is a prayer for recovery of possession, a simple suit for partition cannot be maintained. At this juncture, the learned counsel for the respondent pressed for a remand of the matter to the trial court so as to enable the plaintiff to incorporate a prayer for recovery of possession.

7. The first appellate court has not considered the

impact of Ext.A1 document based on the settled legal position and set aside the order passed by the land tribunal. The decree and judgment of both the courts below hence

are set aside. The matter is remanded back to the trial court for fresh disposal, so as to permit the parties to amend the pleadings and to incorporate the prayer for recovery of possession. The trial court shall refer the issue regarding the benefit conferred under Section 125(3) of the Kerala Land Reforms Act to the Land Tribunal for fresh

SA.No.528 OF 2000(D) 10 consideration. The parties shall appear before the trial court on 03.04.2020. The appeal is allowed in part accordingly. No costs. Sd/- P. SOMARAJAN JUDGE SR

Same Court & Year Kerala · 2020 Same Parties George Paul @ Rajan, vs JOHN Same Judge Honourable Mr. Justice P.Somarajan