IMPORTANT POINT
The Kanam Tenancy Abolition Act, 1976 conferred joint ownership to all legal heirs of a kanam tenant, nullifying any claims of exclusive ownership based on later documents.

JUDGMENT :

A. BADHARUDEEN, J.

This regular first appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908, by the 3rd defendant in O.S. No.216 of 2010 on the files of the Court of the Subordinate Judge, Kochi, challenging the decree and judgment in the above case dated 31.03.2014, where by the learned Subordinate Judge decreed the suit allowing preliminary decree of partition of the plaint schedule property as under:

1. It is hereby declared that Ext.Al document No.2005/1999 will not affect the rights of the plaintiffs and defendants over the plaint schedule property.

2. The plaint schedule property shall be divided into five equal shares and plaintiff is entitled to get one such share.

3. The tharavadu house and the shop buildings in the plaint schedule property shall be valued and the plaintiff is entitled to get 7/15 shares in the value of the building and the other defendants will be entitled to get 2/5 shares each.

4. The house constructed by the 3rd defendant in the plaint schedule property is excluded from partition.

5. The property wherein the building constructed by the third defendant is situated shall be set apart to the share of the third defendant.

6. The costs of the suit shall come out of the estate and the parties are at liberty to file application for passing final decree in terms of preliminary decree.

7. The plaintiff and the defendants other than the third defendant are entitled to share of profit from the date of suit, till they are put in possession of the property, quantum of which is to be fixed in the final decree proceedings.

2. The appellant is the 3rd defendant and respondents are the plaintiff and defendant Nos.2, 4, 5 and 6 in the above suit. Cross Objection No.164/2014 is at the instance of defendants 2 and 4/respondents 2 and 3 herein.

3. Heard the learned counsel for the appellant/3rd defendant and the learned counsel appearing for the respondents 2 and 3/defendants 2 and 4, in detail. Perused the verdict under challenge.

4. Parties in this appeal shall be referred as “plaintiff” and “defendants” with reference to their status before the trial court.

5. In this matter, the plaintiff, who is the grandson of late Eleeswa and the son of late Sanjohn Ignatious, filed a suit seeking partition of the plaint schedule property contending that, late Eleeswa owned 19 cents of land as per kanam arrangement of the year 1046 ME as per kanacheettu No.126 under the kanamdar Sathikunjamma. After the death of Eleeswa in the year 1963, her right devolved upon her son Sanjohn Ignatious, who also died on 28.03.1978. Thereafter, the right of Sanjohn Ignatious over the property devolved upon the plaintiff and defendants, who are his wife and children. According to the plaintiff, when kanam arrangement was ceased to exist after 1958, all the legal heirs became owners of the property from 1976 by settling the kanam. Further, the building in the said property was assessed in the name of the first defendant Annie Ignatious from 1968 by the Elamkunnapuzha Grama Panchayat. In the year 2008, the first defendant has executed a settlement deed transferring the ownership of the shop building and the dwelling house in favour of the plaintiff. Accordingly, the plaintiff has filed the suit seeking partition and separate possession of his share in the plaint schedule property and allotment of the share of the 1st defendant in favour of the plaintiff in the light of the settlement deed. The plaintiff also sought for a permanent prohibitory injunction against the 2nd defendant from alienating or committing waste in the plaint schedule property.

6. The defendants 2, 4 and 5 filed joint written statement contending that the plaint schedule property to be equally divided among the parties.

7. The 3rd defendant filed separate written statement and the contentions raised by the 3rd defendant as extracted in paragraph No.4 of the trial court judgment is as under:

The suit is not maintainable ei