Possessory rights can be partitioned among co-occupants of Government land, affirming that possession alone is a recognized legal right.

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. The appellants are the plaintiffs before the trial court, and the respondents 1 to 4, before the first appellate court. For the sake of brevity, the parties are hereinafter referred to as 'the plaintiff' and 'the defendant' according to their status in the trial court unless otherwise stated.

4. Having regard to the circumstances of this case and the question involved, it would be useful to draw a brief outline of the case at the outset.

5. In the suit aforesaid, the plaintiffs and defendants 1 to 4 are the children and legal heirs and successors-in-interest of late Lekshmikutty and late Raman Kunjuraman @ Kumaran Raman. The 5th defendant is the son of the 1st defendant. One Gopalakrishnan, a brother of the plaintiffs and defendants 1 to 4 had predeceased his parents. The parents of the plaintiffs and the defendants 1 to 4 are no more. The plaint schedule item No.1 property is an unregistered Government land which was brought under cultivation during the period 1969-70 by the plaintiffs and their late father. The property was cultivated with rubber, coconut trees, arecanut palms, pepper vines, etc. The said property was in joint and uninterrupted possession of the plaintiffs, the 1st defendant and their father. Accordingly, all of them had 1/6th share each in the said property. Following the intestate death of their father on 21.11.2000, 1/6th share in item No.1 property had devolved upon the plaintiffs and the defendants 1 to 4. The plaint schedule item Nos.2 and 3 were originally owned and possessed by the deceased brother of the plaintiffs and the defendants 1 to 4. Item No.4 is the ancestral house which is situated in plaint schedule item No.3. Gopalakrishnan died unmarried and issueless on 05.03.1989. After the death of their mother, item Nos.2 to 4 properties had devolved upon the plaintiffs and the defendants 1 to 4. The household articles in item No.4 which were allegedly misappropriated by the 1st defendant are scheduled as item No.5. Accordingly, the plaintiffs have claimed 9/48th share each in item No.1 property and 1/8th share each in item Nos.2 to 5 properties.

6. However the contesting defendants 1 and 2 filed joint written statement contending that the plaint schedule item No.1 property is not correct and total extent of property is 3 acres and 25 cents. The said total extent of land was in the exclusive possession of the father of the plaintiffs and the defendants 1 to 4. As early as in February, 1985, father of the plaintiffs and the defendants 1 to 4 orally partitioned 3.25 acres of land by which he transferred the western 90 cents to the 4th plaintiff, the next eastern 27 cents to the 3rd plaintiff, the next eastern 27 cents to the 2nd plaintiff, the next eastern 27 cents to the 1st plaintiff and the next eastern 27 cents to Gopalakr