Research › Search › Judgment

Kerala High Court · body

2008 DIGILAW 641 (KER)

V. P. Pathu v. Tharamakkandy Ayishu

2008-10-16

PIUS C.KURIAKOSE

body2008
Judgment : The defendants 4 to 6, 8, 9, 12 to 19, 22 to 29, 31 and the legal representatives of the deceased defendant 32 are the appellants in this appeal which is directed against a decree of partition passed by the Subordinate Judges Court, Vadakara in a suit which was filed by the first respondent. Respondents 3 to 8 are respectively defendants 1 to 3, 7, 10, 11 and 20. On the basis of the rival pleadings, the learned Subordinate Judge formulated the following issues for trial; 1. Whether the plaintiff has got any right over the plaint schedule property and the house therein on the basis of the lease deed mentioned in the plaint ? 2. Whether the oral lease mentioned in the said lease deed is true? 3. Whether the executant of the lease deed had any right or possession to grant the lease ? 4. Whether the deceased Kadeesa was over in possession on the basis of the lease deed? 5. Whether defendants 4 to 15 are in occupation of the house as mentioned in the plaint ? 6. Whether the plaintiff is entitled to recovery of possession or partition as prayed in the suit ? 7. Whether the shares claimed in the plaint are correct ? 8. Whether the right of plaintiff and D1 to 3 if any is lost by adverse possession and limitation ? 9. To what relief if any the plaintiff and D1 to 3 are entitled ? 10. What equities and reservation the parties are entitled to in the event of partition? 11. Whether the suit is bad for non-joinder of necessary parties ? 12. What is the proper order as to costs?" 12. The parties did not adduce any oral evidence. On the side of the plaintiffs Ext.A1 was the solitary item of documentary evidence and on the side of the defendants (the present appellants) Exts.B1 to B2 were marked. Ext.A1 was a certified copy of the Kuzhikanam deed executed by Ammanath in favour of Kadeesa. Ext.A1 pertains to the plaint schedule property. Ext.B1 is a certified copy of the partition karar to which Mariyomma, mother of Ammanath is a party. Ext.B2 is a post suit document executed between some of the defendants interse. Ext.A1 was a certified copy of the Kuzhikanam deed executed by Ammanath in favour of Kadeesa. Ext.A1 pertains to the plaint schedule property. Ext.B1 is a certified copy of the partition karar to which Mariyomma, mother of Ammanath is a party. Ext.B2 is a post suit document executed between some of the defendants interse. The learned Subordinate Judge would answer the preliminary issue as to whether the suit is bad for non joinder of necessary parties on account of the non junction of the other legal heirs of the Ammanath in favour of the plaintiff observing as follows; "I do not find any force in this contention because as it is the validity of Ext. A1 lease deed is not challenged and there is no property to be devolved upon the other heirs of Ammanath and therefore I find that other heirs of Ammanath viz. Mammu, Hamsa and Mariyomma or their legal representatives are not necessary parties to this suit." 3. Issue Nos. 1 to 4 were considered together by the learned Sub Judge. Under these issues, the learned Judge found that there was no dispute as regards Mariyommas title over the plaint schedule property. On the death of Mariyomma, her interest in the property devolved in the ratio of 2/3 : 1/3 upon her son Ammanath and daughter Aliyumma. The learned Judge reiterated his finding that Ext.A1 is a valid lease of the entirety of Ammanaths rights in favour of Kadeessa and held that Kadeessa had thus obtained 2/3rd share which Ammanath was originally having over the property. It was accordingly held that the plaintiff and defendants 1 to 3, being children and legal heirs of Kadeesa who is no more, have acquired co-ownership interest in the property. Thus issue Nos. 1 to 4 were answered in favour of the plaintiff. Considering issue Nos. 5 and 6, the learned Judge has observed that it was admitted that plaintiff and defendants 4 to 15 continued to live in the house on the plaint schedule property and that since parties are co-owners, question of recovery of possession cannot arise. Issue Nos. 5 and 6 were answered accordingly. Issue No. 8 as to whether right of the plaintiff and defendants 1 to 3 have been lost to them by adverse possession and limitation, it was held that in the absence of evidence these issues are to be answered in the negative. Issue Nos. 5 and 6 were answered accordingly. Issue No. 8 as to whether right of the plaintiff and defendants 1 to 3 have been lost to them by adverse possession and limitation, it was held that in the absence of evidence these issues are to be answered in the negative. Coming to issue No. 7, the learned Judge found that the plaintiff and defendants 1 and 3 are descendants of Ammanath while defendants 4 to 32 are descendants of Aliyumma. On the demise of Mariyumma, Ammanath inherited 2/3rd right and Aliyumma inherited 1/3rd right. Since 2/3rd right of Ammanath had been conveyed to Kadeesa, the predecessor-in-interest of plaintiff and defendants 1 to 3, the total number of shares are 15, out of which Kadeesa will have 10/15 and defendants 4 to 32 together will have 5/15. It was accordingly, held that upon demise of Kadeesa, the plaintiff came to have 2/15 shares and defendants 1 and 2 came to have 2/15 share and defendant No.3 came to have 4/15 shares. It was also held that defendants 4 to 32 together came to have 5/15 shares. Ext.B2 is a document by which the 21st defendant assigned his right to defendants 4, 13 and 14 and it was held that the defendants 4, 13 and 14 will be entitled for the right of 21st defendant also. Issue No.10 regarding equities and reservations was relegated to the final decree proceedings. Issue No.12 was answered on the basis of the findings on issue No.7. 4. I have heard the submissions of Sri. C. Vathsalan, the learned counsel for the appellant, Sri. K.Lakshminarayanan, the learned counsel for the first respondent and Sri.C.M.Sajeev, the learned counsel for respondents 5 to 7. Sri. Vathsalan, argued that the finding of the court below regarding the validity of Ext.A1 is erroneous. Ext.A1 contains statements which are per se, incorrect and in the absence of documents to corroborate the correctness of the statements therein Ext.A1 should have been ignored by the learned Judge. The learned counsel argued that the court below has proceeded as though Ext.A1 lease deed has been accepted by the appellants. He drew my attention to the pleadings and submitted that the observation to that effect in the judgment is wrong. The learned counsel argued that the finding of the court below regarding the issue of non joinder of necessary parties was erroneous. He drew my attention to the pleadings and submitted that the observation to that effect in the judgment is wrong. The learned counsel argued that the finding of the court below regarding the issue of non joinder of necessary parties was erroneous. He submitted that some of the legal heirs of Ammanath have assigned their interest in the property in favour of some of the appellants. He produced before me a certified copy of the Assignment Deed No.194/1962 of the Sub Registry, Vadakara to support the above submission. According to him, the court below did not grant opportunity to the appellants to produce the above document. Once that document is produced, it would be seen that Ext.A2 lease deed is not a valid one and also that the allotment of shares made by the court below is erroneous. The learned counsel submitted that documents like electoral card, ration card, etc. will clearly show that the suit property had been in the possession of the appellants for the past more than 30 years. Since opportunity was not given by the court below for producing such documents, the learned counsel fervently requested that the suit may be remanded to the court below so that the appellants get sufficient opportunity for producing all the relevant documents and substantiate their contentions. .5. Sri. K.Lakshminarayanan, the learned counsel for the contesting respondents would support the judgment of the court below. According to the learned counsel, the appellants, who are defendants 4 .to 6, 8, 9,12 to 19, 22 to 29, 31 and legal heirs of defendant 32, do not have to worry about the non impleadment of the legal heirs of Ammanath. The appellants can raise their title only through Aliyumma. conjunction or otherwise of all the legal heirs of Ammanath can not have bearing regarding the shares which are due to the appellants. Sri.Lakshminarayanan submitted that Ext.A1 lease deed was allowed to be proved in evidence by the appellants without any opposition. No counter evidence was adduced by the appellants to challenge the recitals in Ext.A1. The appellants are not entitled to challenge Ext.A1 before the court of appeal. The prominent contention raised by the appellants was one of deprivation of the title of plaintiffs and defendants 1 to 3 by adverse possession and limitation. No counter evidence was adduced by the appellants to challenge the recitals in Ext.A1. The appellants are not entitled to challenge Ext.A1 before the court of appeal. The prominent contention raised by the appellants was one of deprivation of the title of plaintiffs and defendants 1 to 3 by adverse possession and limitation. Since the parties are tracing title to a common ancestors property, it has to be taken that the parties are co-owners. Possession by one co-owner will be possession on behalf of all the co-owners. Even if it is seen that these appellants are in possession of the properties such possession is to be deemed as possession on behalf of the other co-owners. Since parties are co-owners, mere adverse possession is not sufficient to defeat the title of the respondents. What is necessary is ouster. No plea of ouster has been raised, so submitted Sri.Lakshminarayanan. 6. I have anxiously considered the submissions addressed at the bar. I have gone through the entire evidence on record. Answering the issue No. 11 regarding the non joinder of necessary parties, the learned Subordinate Judge has observed that the validity of Ext.A1 lease deed has not been disputed. The above observation is clearly erroneous. It has been specifically contended in paragraph 2 of the written statement filed by the appellants and Kadeesa-the mother of the plaintiffs and defendants 1 to 3 did not obtain any title to the plaint schedule property under the lease deed in question and that the executant of the lease deed had no right to execute the lease deed. It is further contended that the recitals in the document that the property is already under the possession of Kadeesa under a oral lease is a false statement. Written statement proceeds to deny almost all the recitals in Ext.A1. Elsewhere, it is specifically contended that the suit is a collusive suit filed by the plaintiffs and defendants 1 to 3 for defeating the rights of the appellants. I do not know how in the teeth of such contentions, the learned Sub Judge could observe that the validity of Ext.A1 lease deed is not in dispute. It is true that the marking of Ext.A1 lease deed was not opposed to by the appellants. I do not know how in the teeth of such contentions, the learned Sub Judge could observe that the validity of Ext.A1 lease deed is not in dispute. It is true that the marking of Ext.A1 lease deed was not opposed to by the appellants. But, mere marking of a document does not amount to proof regarding the recitals contained therein especially in this case where serious contentions had been raised regarding the correctness of the recitals. Moreover, as submitted by Sri.Vathsalan, it is very difficult to accept the claims of the executant contained in Ext.A1 in the absence of corroborative evidence. Sri.Ammanath claims his title to a Karar. But, significantly no details of the karar, date, number, whether it was registered or unregistered, etc. are given in Ext.A1. In Ext.A1 Ammanath claims absolute ownership upon devolution of the entirety of his mothers interest also. No details regarding how Ammanath mothers interest was obtained by him are given in Ext.A1. Similarly, Ext.A1 recites that the properties were already in the possession of Kadeesa on the basis of the oral lease. No details regarding this oral lease are seen given in Ext.A1. According to me, the learned Sub Judge was not justified in placing reliance on Ext.A1 though the same is a registered document especifically when the same was seriously disputed by the appellants. So also, in my opinion, the learned sub Judges finding on the issue regarding the non joinder of necessary parties is not correct. The learned Judge as already indicated proceeds on the basis that Ext.A1 is not disputed and hence the legal heirs of Ammanath need not be on the array of parties in the suit. But, in my opinion, the issue as to whether Ext.A1 is a valid document is an issue in which the other legal heirs of Ammanath are vitally interested and their presence is necessary for deciding that issue. Document No.194/1962 of the Sub Registry, Vadakara which was shown to me by Vathsalan is executed by some of the legal heirs of Ammanath. That document will militate against Ext.A1. .7. On reading through the judgment of the court below, it is seen that the court has proceeded on the basis that it is admitted that Kadeesa and the plaintiffs is in possession of the plaint schedule property. That document will militate against Ext.A1. .7. On reading through the judgment of the court below, it is seen that the court has proceeded on the basis that it is admitted that Kadeesa and the plaintiffs is in possession of the plaint schedule property. In fact, there is contention that since 1955 Kadeesa was residing in her husbands house at Tharamakkandy and that she died in 1984 at Tharamakkandy. The very circumstance that the .plaintiffs themselves sued for recovery of possession also will indicate that the plaintiffs concede that they are out of possession. Of course, the learned Judge is correct in observing that there was no evidence to substantiate the appellants plea of adverse possession and limitation. 8. The appellants have a grievance that the learned Sub Judge did not grant them adequate opportunity for adducing evidence. Having gone through the proceedings paper of the court below, I am of the view that this complaint, which the appellants levelled against the learned judge, is without basis. If the appellants did not adduce the evidence, they themselves are to blame. However, I feel that in the interest of justice opportunity should be given to the appellants for adducing whatever evidence they have for substantiating their contention regarding Ext.A1 lease deed, the correct share due to them and also the one regarding adverse possession and limitation. But, I am not inclined to grant such opportunity unless the same is on imposition of heavy cost. The observation, I have already entered into regarding the interest of the other legal heirs of Ammanath before the court while deciding the genuineness and value of Ext.A1 also persuades me to pass an order of remand. 9. The result of the discussion is that the judgment and decree of the court below are set aside and the suit is remanded back to the court below. The appellant is directed to pay Rs. 10,000/- by way of cost to the respondents through their counsel in this court within one month from today. Once cost is paid, the judgment will become operative. Transmit the records back to the court below. 10. Appellant is permitted to produce the certified copy of assignment deed No. 194 of 1962 of Sub Registry, Vadakara and any other evidence which the appellant is desirous of adducing. Once cost is paid, the judgment will become operative. Transmit the records back to the court below. 10. Appellant is permitted to produce the certified copy of assignment deed No. 194 of 1962 of Sub Registry, Vadakara and any other evidence which the appellant is desirous of adducing. If the appellant adduces evidence, the court below will permit the respondents to adduce counter evidence and the learned Subordinate Judge will pass revised judgment on evaluation of the evidence already on record and the evidence which is adduced pursuant to this order of remand. 11. Parties will enter appearance before the court below pursuant to the order of remand on 15-12-2008. Being an old suit, the learned Subordinate Judge will expedite matters. Accordingly, appeal and cross objection allowed by way of remand. No costs. REFUND OF COURT FEES The appeal is being disposed of by a detailed judgment allowing both the appeal as well as the memorandum of cross objections by passing an order of remand. The question which now arises is as to whether the court fee which has been remitted on the appeal memorandum and on the memorandum of cross objections can be ordered to be refunded to the appellant/the cross objectors. Section 67 of the Kerala Court-Fees and Suits Valuation Act, 1959 is the relevant statutory provision. Section 67 is extracted below: “67. Refund in cases of remand: (1) Where a plaint or memorandum of appeal which has been rejected by the lower court is ordered to be received, or where a suit is remanded in appeal for a fresh decision by the lower court, the Court making the order or remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of appeal; and, if the remand is on second appeal, also on the memorandum of appeal in the first appellate Court. (2) Where an appeal is remanded in second Appeal for a fresh decision by the lower appellate Court, the High Court remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of Section Appeal if the remand is in Second Appeal: Provided that, no refund shall be ordered if the remand was caused by the fault of the party who would otherwise be entitled to a refund: Provided further that, if the order of remand does not cover the whole of the subject-matter of the suit, the refund shall not extend to more than so much fee as would have been originally payable on that part of the subject-matter in respect whereof the suit has been remanded.” I am finding in my judgment in the appeal that the remand has been necessitated due to the fault of the appellant. The first proviso to the Section is a mandatory provision, which says that no refund shall be ordered if the remand was caused by the fault of the party who would otherwise be entitled to a refund. Mr. Vathsalan argued that the two provisos apply only to Section 67(2) and has no application to Section 67(1). I cannot agree. A reading of the entire Section and a conjoint reading of the first and second provisos will show that the provisos apply to all orders of remand passed under Section 67. In fact, the second proviso can have application only to orders of remand passed in first appeals to the trial court and not to orders of remand to the lower appellate court covered by Section 67(2) in Second appeals. A purpose interpretation of the provisos is made, it will have to be held that the first proviso will apply to all remand orders whether they be under Section 67(1) and 67(2) since the intention of the legislature in enacting the first proviso is to ensure that the defaulting party is not benefited by his own fault. Hence, it is ordered that the court fee paid on the appeal will not be refunded to the appellant. 2. The question which arises next for consideration is whether the court fee paid on the memorandum of cross objections can be refunded to the cross objectors. Mr. Hence, it is ordered that the court fee paid on the appeal will not be refunded to the appellant. 2. The question which arises next for consideration is whether the court fee paid on the memorandum of cross objections can be refunded to the cross objectors. Mr. D. Anilkumar, Senior Government Pleader would cite the judgment of the Supreme Court in Hari Shankar Rastogi v. Sham Monohar & Ors. (JT 2005 (3) SC 431) and submit that a cross object is like an appeal and has all trappings of an appeal. According to him, even where the appeal is withdrawn or dismissed, the cross objection can still be heard and determined. The above proposition advanced by the learned Senior Government Pleader on the strength of the judgment of the Supreme Court in Hari Shankar Rastogi’s case (supra) can never be any doubt. But the above judgment does not specifically answer the question whether there is justification for ordering refund of court fee paid on the memorandum of cross objections to the cross objectors in the event of an order of remand being passed. Both the sub-sections in Section 67 deals specifically with orders of remand passed in appeals or second appeals and do not deal with orders of remand passed pursuant to a memorandum of cross objections. 3. A Division Bench of this court in Balan Nair v. Kesavan Nambissan (1973 K.L.T. 280) had occasion to consider the implications of Section 67(1) though in a different context. Their Lordships observed at paragraph 6 of the judgment after quoting Section 67(1) of the Kerala Court Fees and Suits Valuation Act, 1969 as follows: “S.67(1) we think, is attracted and if court fee had been paid on the memorandum of cross objections the plaintiff would have been entitled to a direction for the refund under the section.” In that case where the suit had been remanded to the trial court, the Division Bench had sought the assistance of Sri. K.S. Paripoornan, then Government Pleader as amicus curiae and this is what is stated in the judgment in that context: “But Sri. K.S. Paripoornan, then Government Pleader as amicus curiae and this is what is stated in the judgment in that context: “But Sri. K.S. Paripoornan, Government Pleader who at our request assisted us and assisted us ably we should say, contended that this section will have application only in cases where the court fee had been paid on an appeal or memorandum of cross objections and that the section would not be attracted at all to cases where there had been appeal memorandum and memorandum of cross objections, instituted in forma pauperis on which no court fee had been paid. We must say that a literal grammatical reading of the section fully supports this contention and there can be no question of ordering refund under S.67 when no court fee had actually been paid. But as soon as payment is made according to the direction of this court or the amount is recovered by the State, the section would be attracted. We do not think that if the payment had been only pursuant to an order under Rule 10 of Order XXXIII no refund can be ordered under S.67 of the Act.” The Division Bench has clearly taken the view that refund of the court fee paid on the memorandum of cross objections also can be ordered if when an order of remand is made to the trial court. Significantly, the Government did not canvas before the Division Bench for the position that Section 67(1) and 67(2) does not apply to refund of court fee paid on the memorandum of cross objections. 4. Following the principles emerging from the judgment of the Supreme Court in Hari Shankar Rastogi’s case (supra) and the judgment of the Division Bench of this court in Balan Nair’s case (supra), I hold that Section 67(1) enables the court to order refund of full court fee paid on the memorandum of cross objections to the cross objector if it is seen that the remand order is necessitated not due to the fault of the cross objector. It is being found in the judgment that the cross objector is not to blame for the order of remand which has become necessary. I therefore order that the court fee paid on the memorandum of cross objections be refunded to the cross objectors.