EDAKKANEMBATH POOKANDY GOPALAN S/O NARAYANI v. MANHOTH KUNHAPPA S/O KRISHNAN NAMBIAR and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943 RSA NO. 942 OF 2005** **AGAINST THE DECREE AND JUDGMENT DATED 08.12.2004 IN AS 74/2000 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, THALASSERY AGAINST THE DECREE AND JUDGMENT DATED 30.10.1999 IN OS 9/1996 OF THE SUB COURT, THALASSERY** ## **APPELLANT/APPELLANT/DEFENDANT NO.1:** EDAKKENNEMBATH POOKANDY GOPALAN S/O. NARAYANI, RESIDING AT KOODALI AMSOM, MUTTANNUR DESOM, KOLOLAM, P.O. EDAYANNUR,, THALASSERY TALUK. BY ADVS. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 TO 9:** 1 MANHOTH KUNHAPPA S/O. KRISHNAN NAMBIAR, KANJIRODE AMSOM, PERAVOOR DESOM, P.O. KOODALI, KANNUR TALUK, KANNUR DISTRICT. 2 EDAKKANEMBATH POOKANDY MADHAVI D/O. KALLIANI, KOODALI AMSOM, MATTANNUR DESOM,, THALASSERY TALUK, KANNUR DISTRICT. 3 EDAKKANEMBATH POOKANDY DEVI D/O. KALLIANI, KOODALI AMSOM, MATTANNUR DESOM,, KANNUR DISTRICT. 4 EDAKKANEMBATH POOKANDY ROHINI -DO-. 5 EDAKKANEMBATH POOKANDY JANAKI -DO-. 6 EDAKKANEMBATH POOKANDY SHYLAJA **RSA NO.942 of 2005** **2** D/O. MADHAVI, -DO-. - 7 EDAKKANEMBATH POOKANDY MANOJAN S/O. MADHAVI, -DO-. - 8 EDAKKANEMBATH POOKANDY ANITHA D/O. MADHAVI, -DO-. - 9 EDAKKANEMBATH POOKANDY ROAJA D/O. ROHINI, -DO-. - 10 EDAKKANEMBATH POOKANDY SAJEEVAN S/O. ROHINI, -DO-. - 11 EDAKKANEMBATH POOKANDY RAJEEVAN S/O. ROHINI, -DO-. - 12 EDAKKANEMBATH POOKANDY MANOHARAN S/O. JANAKI, -DO-. - 13 EDAKKANEMBATH POOKANDY NARAYANI D/O. KALLIANI, KOODALI AMSOM, MATTANNUR DESOM,, KOLOLAM, P.O. EDAYANNUR, THALASSERY TALUK,, KANNUR DISTRICT. - 14 EDAKKANEMBATH POOKANDY SAROJINI D/O. NARAYANI, -DO-. - 15 EDAKKANEMBATH POOKANDY SHOBA D/O. NARAYANI, -DO-. - 16 EDAKKANEMBATH POOKANDY SUSHALA D/O. NARAYANI, -DO-. - 17 EDAKKANEMBATH POOKANDY USHA D/O. NARAYANI, -DO-. - 18 PANNIYADAN NARATH NARAYANAN, S/O. AMBU EDAKKAD AMSOM, DESOM, TELLICHERRY TALUK, KANNUR DISTRICT. - 19 KOOLOTH VALAPPIL ABDURAHIMAN S/O. KUNHALI, KANJIRODE AMSOM PERAVOOR DESOM, P.O. KOODALI, KANNUR TALUK, KANNUR DISTRICT. **RSA NO.942 of 2005** **3** 20 EDAKKANEMBATH POOKANDY NARAYANI D/O. KALLIANI, KOLOLOM, KOODALI AMSOM, MATTANNUR DESOM, P.O. EDAYANNUR, THALASSERY TALUK,, KANNUR DISTRICT. *ADDL.R21 NISHAYI M.P AGED 38, D/O. MOHMOD A.B, KAKKADAVATH AVENUE, THAYATHERU, KANNUR CIVIL STATION P.O, KANNUR – 670002. *ADDL.R22 VEENA N.T AGED 31 YEARS D/O. JAYARAJAN N.T, RESIDING AT NAYAN THAR ROAD, ELAYAVOOR P.O, MUNDAYAD, KANNUR - 670597. *(SUPPLY. RESPONDENTS 21 AND 22 ARE IMPLEADED AS PER ORDER DATED 8.2.2021 IN IA 340/2015) **ADDL. SREE EDAKALMBETH BHAGAVATHI KSHETHRAKARAYA R23 NIRVAHANA SASMITHI P.O., KANIRODE, PURAVOOR, KUDUKIMOTTA, KANNUR DISTRICT – 670592, REPRESENTED BY ITS SECRETARY, EDAKALAMBETH NARAYANAN, S/O KUNHAPPA, AGED 65 YEARS, EDAKALAMBETH HOUSE, P.O. EACHUR, KANNUR – 670591 **SUPLEMENTAL RESPONDENT R23 IS IMPLEADED AS PER ORDER DATED 01.10.2021 IN IA NO.1/2021 BY ADVS. SRI.U.P.BALAKRISHNAN FOR ADDL.R23 SRI.K.R.AVINASH KUNNATH FOR ADDL.R21, R22 SRI.ABDUL RAOOF PALLIPATH FOR ADDL.R21, R22 SRI.E.MOHAMMED SHAFI FOR ADDL.R21, R22 SRI.M.K.SUMOD FOR R19 B/O SRI.GRACIOUS KURIAKOSE FOR R1, **THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO.942 of 2005** **4** ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No.942 of 2005 --------------------------------------------- Dated this the 10[th] day of November, 2021 ## **JUDGMENT** This Regular Second Appeal arises from the judgment and decree dated 30.10.1999 in O.S.No.9/1996 passed by the Subordinate Judge's Court, Thalassery. The original suit was instituted for partition of the plaint schedule property. The Trial Court decreed the suit in favour of the plaintiffs. Defendant No.1 challenged the judgment of the Trial Court in A.S.No.74/2000. The First Appellate Court confirmed the judgment and decree passed by the Trial court. Defendant No.1 is before this Court in Second Appeal. 2. The facts giving rise to this appeal are as follows: 2.1 The plaint schedule property having an extent of 1 Acre 66 cents comprised in Re-Sy.No.4/3 originally belonged to the Thavazhi of the direct sisters of Edakkanembath Matha and Thala. Matha had one son who predeceased her. Thereafter, the entire plaint schedule property vested in the Thavazhi constituting Thala and her descendants. Thala had 3 daughters namely, Vachi, **RSA NO.942 of 2005** **5** Paithal and Kallyani. Kallyani had five children, of which, one was Narayani, defendant No.2. Defendant No.1 is the son of the said Narayani and defendant Nos. 3 to 6 are her other children. Vachi died issueless. After the death of Paithal and Kallyani, the properties were in the joint possession of the children of Paithal and Kallyani, including plaintiffs 2 to 12 and defendants 1 to 6. Defendant No.1 had purchased the rights of the children of Paithal in the year 1994. The plaintiffs 2 to 12 assigned their rights in the property in favour of plaintiff No.1 in the year 1995. At present, plaintiff No.1 and defendant Nos.1 to 6 are in joint possession of the plaint schedule property. Defendants No.1 had assigned a portion of the property to defendant Nos. 7 and 8. Plaintiff No.1, being the assignee of plaintiffs 2 to 12, is entitled to 11/24 shares in the property. 3. Defendant Nos. 1 to 6 resisted the case of the plaintiffs. The plaint schedule property vested with the Thavazhi of Matha and Thala. Paithal got oral lease of the property from Matha in the year 1940, and thereafter, she had been in exclusive possession of the property. After the death of Paithal, the property devolved upon her children. On 28.11.1994, defendant No.1 purchased the property from the children of deceased Paithal. Thereafter, defendant No.1 has been in exclusive possession of the plaint **RSA NO.942 of 2005** **6** schedule property. Defendant No.1 assigned 10 cents of property in favour of defendant No.8 and 60 cents of property in favour of defendant No.7. The remaining property is in the exclusive possession of defendant No.1. The plaintiffs have no right over the plaint schedule property. Even if it is found that, the plaintiffs have acquired any right over the plaint schedule property, they lost it by way of ouster and limitation. Plaintiffs are not in joint possession of the property. 4. During the pendency of the Second Appeal, defendant No.8 assigned his right in respect of the plaint schedule property in favour of a stranger who was impleaded as additional respondent No.23 in the Second Appeal. 5. The evidence consists of the oral evidence of DW1 and DW2, Exts. A1 to A6 marked on the side of the plaintiffs and Exts. B1 to B5 marked on the side of the defendants. 6. The Trial Court decreed the suit, holding that the parties are in joint possession of the plaint schedule property as coowners and that defendant No.1 failed to establish that he has exclusive possession and title over the plaint schedule property. Therefore, the Trial Court directed partition of the properties by dividing the same into 25 equal shares and allotting 11 such **RSA NO.942 of 2005** **7** shares to plaintiff No.1. The Trial Court also held that plaintiff No.1 is entitled to share of profits from defendant No.1. The Trial Court further held that the properties purchased by defendant Nos. 7 and 8 will be set apart from the share of defendant No.1 in the final decree proceedings. 7. The First Appellate Court confirmed the findings of the Trial court. 8. After hearing both sides, this Court reformulated the substantial question of law as follows: (i) Did the courts below misconstrue the evidence while recording the finding that defendant No.1 has no exclusive title and possession over the plaint schedule property. 9. Heard Sri.K.V.Sohan, the learned counsel appearing for the appellant and Sri.M.K.Sumod, the learned counsel for the respondents. 10. The learned counsel for the appellant contended that both the Courts below lost sight of the existence of Ext.B1 title deed in respect of the plaint schedule property by which defendant No.1 acquired title over the property from the children of Paithal. **RSA NO.942 of 2005** **8** 11. _Per contra_ , the learned counsel for the respondents contended that by way of Ext.B1, defendant No.1 has not acquired exclusive title or possession over the property, as the children of Paithal had no exclusive possession or title over the property and they were only co-owners in respect of the plaint schedule property. 12. The specific case of defendant No.1 is that Paithal acquired the oral lease in respect of the property from Matha in the year 1940, and thereafter, she was in exclusive possession of the property till her death, and the right over the property devolved upon her children. They assigned the right in respect of the property to defendant No.1 as per Ext.B1 dated 28.11.1994. 13. It is the admitted case of defendant No.1 that the property belonged to Thavazhi of Thala and Matha. Defendant No.1 can succeed in establishing his right claimed by way of Ext.B1, only if it is established that deceased Paithal orally obtained the lease of the property from deceased Matha in 1940. Defendants failed to produce any documents to prove that Paithal had obtained oral lease of the property from Matha. No documents have been produced before the Court to establish that Paithal, and their children were in exclusive possession of the property. There **RSA NO.942 of 2005** **9** is specific admission from the side of defendant No.1, while examined as DW1, that there was no evidence available to prove that Paithal had obtained the oral lease of the property from Matha in the year 1940. After examining the recitals in Ext.B1 the Trial Court rightly observed that the fact that Paithal had obtained oral lease of the property from Matha in the year 1940 is conspicuously absent in Ext.B1 assignment deed. Defendant No.1 admitted that he had no knowledge regarding the oral lease. No witnesses were examined to prove the alleged oral lease. Considering all these aspects, the Trial Court held that defendant No.1 failed to prove that Paithal had obtained property as per lease from deceased Matha in the year 1940. Hence, the plea of defendant No.1 that the property exclusively belonged to Paithal and thereafter her children and he purchased the entire property as per Ext.B1 cannot be accepted. 14. Defendant No.1 also raised the plea of ouster and limitation. It was contended that the children of Paithal had acquired exclusive title and possession over the property by way of ouster and limitation. There are no specific pleadings to set up the plea of ouster. In **Vidya Devi @ Vidya Vati (Dead) By LRs v. Prem Prakash & Ors [(1995) 4 SCC 496]** , the Apex Court enumerated three elements necessary for establishing the plea of **RSA NO.942 of 2005** **10** ouster in the case of co-owner. They are (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. The appellant/defendant No.1 failed to establish the requirements for establishing the plea of ouster. The Trial Court rightly held that the children of Paithal failed to establish right over the property by way of ouster and limitation. 15. The contention of the appellant/defendant No.1 that the Trial Court as well as the First Appellate Court misconstrued the evidence and documents while recording the finding that defendant No.1 failed to establish exclusive possession and title over the plaint schedule property is not sustainable. The substantial question of law is answered accordingly against the appellant. Hence, the Regular Second Appeal is dismissed. **Sd/-** **K.BABU JUDGE** VPK