The suit before the court below is one for partition and separate possession of the plaint schedule property having an extent of 3 acres and 84 cents in Re-Survey No.24 of Kooveri Padappengadu Desom of Taliparambu Taluk. The sole defendant before the court below, is the appellant herein. 2. The original plaintiff is the son of late Kollanambu Raman Nair born in his first wife. On the death of his first wife, late Kollanambu Raman Nair married Parvathy Amma, in whom the defendant Gopalan, Janaki Amma and Krishnan were born.
3. The case of the plaintiff, who is the original respondent herein, was that the plaint schedule property was assigned in favour of the plaintiff and the defendant jointly, by their father late Kollanambu Raman Nair, through Ext.A1 Assignment Deed dated 12.9.1966 of Taliparamba Sub Registry. It is his further case that, the said property originally belonged to Padappengad Devaswom, was taken on oral lease by late Kollanambu Raman Nair and thereafter, he was in absolute possession and enjoyment of the same. It is his further case that in the year 1967, he along with the defendant jointly executed a Marupattam deed as document No.3520 of 1967, in favour of the Devaswom thereby attorning to the original title of the Devaswom over the the property, and agreeing to pay the rent without fail. According to the plaintiff, the plaintiff is entitled to ½ share over the said property, and hence the suit.
4. The sole defendant, who is the appellant herein, contended that the alleged derivation of the property in favour of late Kollanambu Raman Nair, is not correct and that no such property, as the plaint schedule property having an extent of 3 acres and 84 cents in Re-Survey No.24, is in existence. Another contention is that Ext.A1 was a document executed just as an experiment to see whether they could snatch away some property of the Devaswom. Admittedly, Kollanambu Raman Nair had no title over any such property and it is alleged by Kollanambu Raman Nair that he had obtained the property through oral lease. It is also pointed out that Ext.A2 Marupattam deed executed in the year 1967 by the plaintiff and defendant also could not have created any title over such an imaginary property in their favour. It is further contended that in Re-Survey No.24, the plaintiff, the defendant and the other legal heirs of Kollanambu Raman Nair were jointly entitled to 50 cents of property. On 6.12.1986 all the legal heirs of Kollanambu Raman Nair had executed Ext.B1 Partition Deed in respect of all his available properties. The said 50 cents of property in Re-Survey No.24 was also included in Ext.B1 and the said 50 cents was divided into two equal shares of 25 cents each and the same were allotted to the present appellant and his brother Krishnan. It is contended that no such property as claimed as the present plaint schedule property is in existence or available for any partition.
5. The court below through the impugned judgment found that 50 cents of property out of 3 acres and 84 cents of property in Re-Survey No.24, was included in Ext.B1 in which the plaintiff was also a party and therefore, an extent of 3 acres and 34 cents of property in Re-Survey No.24 is still available for partition. Even though the defendant has been all along clamoring that there was no such property in existence, the court below has proceeded to find that an extent of 3 acres and 34 cents of property in Re-Survey No.24, is still available for partition. The court below has ordered a partition by metes and bounds of such an extent of property and the plaintiff is allowed to realise the future mesne profits also from the date of suit.
6. Heard the learned counsel for the appellant, Shri.Cibi Thomas. There is no representation for any of the respondents. It seems that during the pendency of the appeal, the original plaintiff who was the original respondent herein died and consequently, his legal heirs were impleaded as additional respondents 2 to 6.
7. Learned counsel for the appellant has argued that the court below has proceeded with a mistaken impression that Ext.A1 Assignment deed executed by late Kollanambu Raman Nair in favour of the plaintiff and defendant, had created a title over the properties covered by the said document on the plaintiff and the defendant. The derivation of title allegedly obtained by late Kollanambu Raman Nair over such a property has also to be considered. He has claimed in Ext.A1 Assignment Deed that he had obtained oral lease of such a property from Padappengad Devaswom. The Tenure of the property is 'Devaswom land'. It is true that the plaintiff and the defendant joined together in executing Ext.A2 by attorning the title of Devaswom over the property and by undertaking that they would pay the rent without fail. Evidently Ext.A2 has been executed behind the back of the Devaswom and the same is also a continuation of Ext.A1 in order to examine whether they could create title over a portion of the Devaswom property. Either Ext.A1 or Ext.A2 cannot create any valid tile over the property, unless and until there is something to show the valid tenancy right of late Kollanambu Raman Nair over the said property. There is absolutely nothing to show that late Kollanambu Raman Nair had valid tenancy right over the property, other than his assertion in Ext.A1 that he had obtained an oral lease from the Devaswom.
8. Of course, it may be possible to contend that the appellant cannot challenge the validity of Ext.A1 because of the reason that he had also participated in the execution of Ext.A2. In fact, he is estopped from contending the validity of Ext.A1. At the same time, it is a fact that the parties cannot claim title over the property without proof of a valid title of their vendor. Devaswom is not made a party to the suit. Of course, the title is not a question to be considered at all.
9. Even according to the son of the plaintiff, who was examined as PW1, over and above 50 cents of property in Re- Survey No.24 included in Ext.B1 Partition Deed, there was another 3 acres and 84 cents of property based on Ext.A1 and the same is available for partition. According to the defendant, he is not in possession of any such imaginary property having an extent of 3 acres and 84 cents in Re-Survey No.24 and therefore, he should not be burdened with the liability to pay any mesne profits to the plaintiff. On going through the contention of the defendant, it is discernible that there was nothing to show that the defendant has any title over the subject matter of Ext.A1. In that context, when one of the parties in favour of whom Ext.A1 was executed, contends that there is no such property in existence, the court below ought to have taken efforts to get such a property identified in order to see whether any such property was available for partition. It has to be ascertained whether the defendant was in possession of such property.
10. It seems that the plaintiff has claimed that the plaintiff and the defendant are in joint possession and enjoyment of the property and they cultivated the property with rubber and that presently 3 acres and 84 cents is a rubber plantation. At the same time, it is very strange to note that the plaintiff has gone to the claiming mesne profits over the property. Both such claims cannot go together. When the plaintiff has claimed joint possession over the property, he is estopped from demanding any mesne profits from the defendant. When the defendant has got a specific contention that any such property is not in existence and he is not in possession of any such property, the same ought to have been clearly ascertained and identified. Without identifying the extent of such a property, it seems that the court below has gone to the extent of passing the impugned preliminary judgment and decree by granting partition and separate possession of ½ share in favour of the plaintiff over such a property, and also allowing the plaintiff to claim mesne profits in respect of such a property from the defendant. In such a context, the impugned decree and judgment are liable to be set aside and the matter is liable to be remitted to the court below for fresh disposal in accordance with law, after giving an opportunity to the plaintiff, now represented by the additional respondents herein, to take out a commission and to identify any such property with the aid of a qualified surveyor. Only on ascertaining the existence and identification of such property, a preliminary decree as one passed in this case, can be passed. Even according to PW1, 50 cents of property in Re-Survey No.24 included in Ext.B1 is not a part of the plaint schedule property. His claim is that the 3 acres and 84 cents of property scheduled as the plaint schedule property is covered by Ext.A1 and the same is a separate plot of property. PW1 is not claiming any right over the 50 cents of property in Re-Survey No.24 included in Ext.B2. Therefore, the court below has committed an error in finding that out of the said 3 acres 84 cents of property, presently an extent of 3 cents 34 cents only, is available.
In the result, this appeal is allowed and the impugned judgment and decree are set aside and the mater is remitted to the court below for fresh disposal in accordance with law. The additional defendants have to come on record for and on behalf of the original plaintiff, who is no more. They have to take out a commission to identify the existence of the plaint schedule property with the aid of a qualified surveyor. In case any such property is in existence and available for partition, the court below can proceed with the passing of a preliminary decree. The parties shall appear before the court below on 1.8.2014.
In the nature of the appeal, there is no order as to costs.
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B.KEMAL PASHA, JUDGE dl // TRUE COPY // PA to Judge