Kerala High Court
P.K. Abdul Khader vs G.P. Selvaraj on 14 February, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:12233
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 14TH DAY OF FEBRUARY 2025 / 25TH MAGHA, 1946
RFA NO. 540 OF 2013
AGAINST THE DECREE AND JUDGMENT DATED 12.04.2013 IN OS NO.408
OF 2009 OF SUB COURT, OTTAPPALAM
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APPELLANTS/PLAINTIFFS:
1 P.K. ABDUL KHADER, AGED 43 YEARS,
S/O.HAMASAKKUTTY HAJI,
RESIDES IN POLLAKKUNNAN HOUSE NO.8/965, NELLIPUZHAKKAL,
ARAKKURISSI,MANNARKKAD TALUK,
PALAKKAD DISTRICT - 678 582.
2 P.K.SAKEENA,
AGED 47 YEARS,
D/O.HAMASAKKUTTY HAJI,
RESIDES IN POLLAKKUNNAN HOUSE NO.8/965, NELLIPUZHAKKAL,
ARAKKURISSI, MANNARKKAD TALUK,
PALAKKAD DISTRICT - 678 582.
3 P.K.SULAIKHA,
AGED 46 YEARS,
D/O.HAMASAKKUTTY HAJI,
RESIDES IN POLLAKKUNNAN HOUSE NO.8/965, NELLIPUZHAKKAL,
ARAKKURISSI, MANNARKKAD TALUK,
PALAKKAD DISTRICT - 678 582.
4 P.K.MAIMUNA,
AGED 45 YEARS,
D/O.HAMASAKKUTTY HAJI,
RESIDES IN POLLAKKUNNAN HOUSE NO.8/965, NELLIPUZHAKKAL,
ARAKKURISSI, MANNARKKAD TALUK,
PALAKKAD DISTRICT - 678 582.
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RFA NO. 540 OF 2013 -2-
5 P.K.RAMLA,
AGED 43 YEARS,
D/O.HAMASAKKUTTY HAJI,
RESIDES IN POLLAKKUNNAN HOUSE NO.8/965, NELLIPUZHAKKAL,
ARAKKURISSI, MANNARKKAD TALUK,
PALAKKAD DISTRICT - 678 582.
BY ADVS.
S. RANJIT
GOKUL DAS V.V.H.
ABHILASH BHASKAR
BINU JOHN
J.ARUN
RESPONDENTS/DEFENDANTS:
1 G.P. SELVARAJ, [DIED; LRs IMPLEADED]*
S/O.PONNUSWAMY NAIDU, KOTTATHARA, NAICKERPADI,
AGALI VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT - 678 582.
2 G.P.SOUNDARARAJ,
S/O.PONNUSWAMY NAIDU, H.NO.27, THADAGAM ROAD,
G.C.T.P.O., COIMBATORE -13.
3 G.K.SREENIVASAN, SO.NARAYANASWAMY NAIDU,
43-A, NRG STREET, K.K.PUDUR, COIMBATORE - 38.
4 G.V.JAYAKUMAR,
S/O.LATE G.N.VENUGOPAL, NAICKERPADI, KOTTATHURAI P.O.,
AGALI - 678 581.
5 G.V.ASHOK KUMAR,
S/O.LATE G.N.VENUGOPAL, NAICKERPADI, KOTTATHURAI P.O.,
AGALI - 678 581.
6 G.V.RAJAKUMAR,
S/O.LATE G.N.VENUGOPAL, NAICKERPADI, KOTTATHURAI P.O.,
AGALI - 678 581.
7 E.MOIDEEN,
S/O.ALAVIKUTTY, KOTTAKKAL AMSOM & DESOM, ERNAD TALUK,
MALAPPURAM DISTRICT - 676 503.
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RFA NO. 540 OF 2013 -3-
8 K.N.MANYAN NAMBOODIRIPPAD,
S/O.NARAYANAN NAMBOODIRIPPAD,
IRUMBILIYAM VILLAGE, TIRUR TALUK, VALIYAKUNNU P.O.,
MALAPPURAM DISTRICT - 676 552.
9 K.PRAVEEN, S/O.KUMARASWAMY NAMBOODIPPAD,
IRUMBILIYAM VILLAGE, TIRUR TALUK, VALIYAKUNNU P.O.,
MALAPPURAM DISTRICT - 676 552.
10 P.V.VISHNUPRASAD,
S/O.DURGADATHAN NAMBOODIRI, VANIYAMKULAM VILLAGE,
THRIKKANDODE AMSOM, OTTAPPALAM.
11 JIGIVIN,
S/O.GANAPATHI NAMBOODIRI,
THONGAN KULANGARA AVALUKUNNU P.O., ALAPPUZHA.
12 SHINY, W/O.JAYAN,
ORUVANNOOR MALA, AGATHIYOOR VILLAGE, THRISSUR DISTRICT.
13 SAVITHRI,
W/O.KRISHNAN NAMBOODIRI, MULLAMANGALATH MANA,
VADAKKEKKAD VILLAGE, CHAVAKKAD TALUK,
THRISSUR DISTRICT.
14 JAYAN, S/O.SANKARAN NAMBOODIRIPPAD,
AGATHYOOR VILLAGE
ORUVANNOORMALA P.O., THALAPPILLY TALUK,
THRISSUR DISTRICT.
15 K.N.NARAYANA SHARMA,
S/O.V.NARAYANAN POTTI, NANDENAM, 13/545, KAVU STREET,
SHEKHARIPURAM, PALAKKAD - 10.
16 P.V.CHACKO,
S/O.KUNJAKKO, PALLIPADAM HOUSE,
KIZHAKKUMBHAGAM VILLAGE, ALUVA TALUK, ERNAKULAM.
17 P.V.DEVASSYKUTTY,
S/O.KUNJAKKO, PALLIPPADAM HOUSE,
KOZHAKKUMBHAGAM VILLAGE, ALUVA.
18 KURIKKAL MOHAMMED HAJI,
KURIKKAL HOUSE, ANGADIPPURAM, PERINTHALMANNA,
MALAPPURAM DISTRICT.
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RFA NO. 540 OF 2013 -4-
19 STATE OF KERALA,
REP. BY THE DISTRICT COLLECTOR,
PALAKKAD, CIVIL STATION.
20 R.VIJAYARAJ,
W/O.RAJA & D/O.LATE PONNUSWAMI NAIDU, B-42,
SREEVASTHA GARDEN, METTUPPALAYAM ROAD, THODIYALLOOR,
COIMBATORE - 08.
21 KAMALA VENKITASWAMY
W/O.VENKITASWAMY & D/O.LATE PONNUSWAMI NAIDU, THADAKAM,
PAPPANAIKAMPALAYAM, THADAKA, P.O., COIMBATORE - 08.
* ADDL. RESPONDENT NO.22
ADDL. R22 JOTHIMANI,
W/O LATE G.P.SELVARAJ, AGED ABOUT 60 YEARS, DOOR NO.27,
THADAKAM ROAD, GCT POST, COIMBATORE, PIN-641013.
[THE LEGAL REPRESENTATIVE OF THE DECEASED 1ST RESPONDENT IS
IMPLEADED AS ADDITIONAL RESPONDENT NO.22 AS PER ORDER DATED
15/01/2025 IN IA 2/2019 IN RFA 540/2013]
BY ADVS.
SRI.K.MOHANAKANNAN
T.C.SURESH MENON
SRI.N.AJITH
SMT.GEETHA P.MENON
SRI.P.B.KRISHNAN
SRI.V.C.MADHAVANKUTTY
SMT.A.R.PRAVITHA
SRI.A.N.RAJAN BABU
SMT.K.SUNITHA VINOD
SRI.P.B.SUBRAMANYAN
B.DEEPAK
ANNA ROSE
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
14.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
SHOBA ANNAMMA EAPEN, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.540 of 2013
= = = = = = = = = = = = = = = = = =
Dated this the 14th day of February, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for partition was dismissed by the trial
court. The plaintiffs and the 1st defendant
respectively, are in appeal and cross objections.
2. The plaint schedule property having an extent of
68.28 acres originally belonged in jenmom to one
Mannarkkad Mooppilsthanam. Describing the extent of
property as 100 acres, one Narayanaswamy Naidu took it
on lease under Ext.A1 lease deed dated 25.06.1953.
According to the plaintiffs, Ext.A1 lease was on his
behalf and on behalf of his family members consists of
brothers, paternal uncle and their sons.
3. On the advent of the Kerala Land Reforms Act(KLR
Act), ceiling proceedings were initiated against eight
persons. Their names and the extent of property held by
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them are as under :-
Sl. Name Extent of
No. property held
(in acres)
1 Narayanaswamy 12.09
2 Sreenivasan 11.65
8 Bangaru Ammal, W/o Narayanaswamy Nil
As per the Revenue Inspector's report, the total extent
of property available was only 68.28 acres.
4. As per the plaint averments, the first plaintiff
obtained the entire share of Narayanaswamy Naidu as per
a sale deed obtained from his legal heirs. The rights of
Nagarajan was got assigned by the first plaintiff's
brother viz. Rafeeq. Later Rafeeq assigned his rights to
plaintiffs 2 to 5. Selvaraj is the first defendant in
the suit. Soundararaj is the second defendant in the
suit. Defendants 18 and 19 are their assignees.
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Sreenivasan is the third defendant in the suit.
Venugopal died and his wife and children are defendants
4 to 7. The suit is filed claiming partition and
separate possession of their respective shares of the
parties.
5. The third defendant raised a plea of oral
partition. Defendants 1 and 2 raised a plea of adverse
possession and limitation.
6. The trial court found that the materials on
record indicates earlier division of the properties and
that there is no co-ownership property liable to be
partitioned. Accordingly the suit was dismissed. The
plea of adverse possession and limitation was negatived.
7. We have heard learned counsel on either side.
8. The first respondent in the appeal died pending
the appeal. His wife was impleaded as additional
respondent No.22. Claiming rights under a Will allegedly
executed by the first respondent, an application has
been filed by the legatee under the will as IA No.1 of
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2025, seeking to get himself impleaded as additional
respondent, as legal representative of the deceased
first respondent. The application is pending
consideration.
9. That the jenmom right over the property
originally vested with Mannarkkad Mooppilsthanam, is not
in dispute. As evidenced by Ext.A1 lease deed, the
property was taken on lease by Narayanaswamy Naidu. On
the advent of the Kerala Land Reforms Act, it is seen
that ceiling proceedings were initiated against eight
persons including Narayanaswamy Naidu. Ext.A2 is the
order in the ceiling proceedings. As was noticed in
paragraph 3 of the above, ceiling proceedings were
initiated in favour of eight persons treating it to be
their holdings. As per Ext.A2 order, Selvaraj alone was
liable to surrender 5.50 acres. There was no order for
surrender against the others. The plaintiffs and the
defendants have obtained properties from such
declarants.
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10. Though the plaintiffs allege joint holding and
seek partition and separate possession, as is evident
from the ceiling proceedings, the properties were not
held jointly but separately. The subsequent assignments
are also in respect of specific extents and not
undivided areas. A reading of Ext.A1 lease deed
indicates that the lease deed permitted assignment/
transfer by the lessee. It is probable that pursuant
thereto there had been assignments and ceiling
proceedings against the eight individuals. This was
followed by the assignments by the respective declarants
of specific portions. Therefore, the trial court was
right in holding that there is no co-ownership property
to be partitioned in a suit for partition.
11. Learned counsel for the appellants would argue
that the appellants-plaintiffs may be granted an
opportunity to amend the plaint to incorporate the
proper reliefs. A reading of the averments in the plaint
indicates that the plaint has proceeded as if it were a
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co-ownership property. We have already found that the
said claim is unsustainable. On the pleadings as it
stands, the mere incorporation of additional reliefs
alone would not be sufficient. Hence we do not think
that there is any point of remanding the suit granting
opportunity to amend the plaint to incorporate
additional reliefs. It is for the plaintiffs to seek
appropriate reliefs in a properly constituted suit.
Hence the dismissal of the suit is only to be affirmed
but leaving open the said right.
12. Coming to the cross objection filed by the
first defendant, since the suit itself is being
dismissed, the plea of adverse possession has no
relevance. Such contention of the first defendant is
also to be left open to be pleaded and proved in
appropriate proceedings.
13. As regards the impleadment sought in IA 1/2025,
as the legal representative of the deceased first
respondent-first defendant, since the appeal is being
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dismissed we do not think that any adjudication on the
same is necessary. They could also be made parties in
the subsequent proceedings if any and have the rights
agitated.
Resultantly, leaving open the rights and rival
contentions of the parties the appeal is dismissed
affirming the judgment and decree of the trial court. No
costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
kns/-
//True Copy//
P.S. To Judge
RESPONDENT ANNEXURES
Annexure A TRUE COPY OF THE WILL VIDE., NO.137/2017
EXECUTED BY THE DECEASED 1ST RESPONDENT,
DATED 7.9.2017.
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