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N.ANIL KUMAR
Ramachandran – Appellant
Versus
Omanakuttan – Respondent
Key Points: - (!) The plaint schedule item No.1 property is Government land; possessory title holders have rights against all world except the Government (appeal judgment discusses possessory title against all but Government). - (!) Possessory title is heritable, divisible and transferable; it is distinct from proprietary title (appeal judgment quotes and relies on this principle). - (!) The lower appellate court erred in holding that no suit for partition is maintainable based on joint possessory right without making the owner Government a party; Government not arrayed affected maintainability of partition for item No.1. - (!) The trial court correctly held item No.1 is partible; first appellate court reversed without proper basis. - (!) Government may restore land in accordance with law; possessory right over Government land can be treated as a family asset available for partition among possessors. - (!) The appeal succeeded; judgment and decree of trial court restored; no costs. (!)
JUDGMENT :
The plaintiffs filed O.S.No.244/2006 before the Sub Court, Pathanamthitta (hereinafter referred to as 'the trial court') against the defendants for partition and separate possession of their share over the plaint schedule properties 1 to 5. The suit was in respect of the plaint schedule item Nos.1 to 4 agricultural lands and plaint schedule item No.4 movables. After the contest, a preliminary judgment and decree was passed by the trial court dividing the plaint schedule item Nos.1 to 4 properties by metes and bounds among the plaintiffs 1 to 4 and the defendants 1 and 2. The court further directed the plaintiffs and the defendants 1 and 2 to apply for passing a final decree for actual division of the properties.
2. Feeling aggrieved, the defendants 1 and 2 preferred A.S.No.176/2009 before the District Court, Pathanamthitta (hereinafter referred to as 'the first appellate court') challenging the decree for partition in respect of plaint schedule item No.1 property. However, the judgment and decree of the trial court were set aside in respect of the plaint schedule item No.1 property. The suit was dismissed as not maintainable in relation to the plaint schedule item No.1.
3.
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