K. GANGADHARAN NAIR v. P.O. BHANUMATHI AMMA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 5TH DAY OF FEBRUARY 2014/16TH MAGHA, 1935 RSA.No. 310 of 2005 ( ) ------------------------ AGAINST THE ORDER/JUDGMENT IN AS 161/2002 of III ADDL.SUB COURT, KOZHIKODE DATED 18-11-2004 AGAINST THE ORDER/JUDGMENT IN OS 600/1997 of ADDL.M.C.,KOZHIKODE-II DATED 24-06-2002 APPELLANT(S)/APPELLANT/APPELLANTS/DEFENDANTS 1 TO 4,6,7 and 9 ------------------------------------------------------------------------------------------- --------------- 1. K.GANGADHARAN NAIR, AGED 56 YEARS, S/O.LATE GOPALAN NAIR, KOTTAYI PARAMBA, FEROKE AMSOM NALLUR DESOM, KOZHIKODE TALUK. 2. E.VISALAKSHI AMMA, AGED 43 YEARS, - W/O. LATE DAMODARAN NAIR, AREENGAL HOUSE P.O. VELATHUR, TRICHUR DISTRICT. 3. E.RAJESH, AGED 25 YEARS, S/O. LATE DAMODARAN NAIR OF -DO- -DO-. 4. E.LALITHA, AGED 23 YEARS, - D/O. LATE DAMODARAN NAIR OF -DO- -DO-. 5. T.SANTHAKUMARI, AGED 50 YEARS, D/O. LATE GOPALAN NAIR, KATTAYIPARAMBA, FEROKE AMSOM KOZHIKODE TALUK. 6. T.MURALEEDHARAN, AGED 43 YEARS, S/O. LATE GOPALAN NAIR, THALAPARATH HOUSE, KADAMPUZHA MALAPPURAM DISTRICT. 7. CHELAPPURATH RADHAKRISHNAN, AGED 64 YEARS, S/O. JANAKY AMMA, KOTTAYI PARAMBIL FEROKE AMSOM, NALLUR DESOM -DO-. BY ADVS.SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S)/RESPONDENTS/PLAINTIFFS & 8TH DEFENDANT:: ------------------------------------------------------------------------------------------- ----------------- 1. P.O. BHANUMATHI AMMA, AGED 63 YEARS, - W/O. LATE K.GOVINDAN NAIR, PULLAKKAT KUNNNU PAYYANAD AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. 2. T.M.RENUKA, AGED 41 YEARS, D/O. BHANUMATHI AMMA OF -DO- -DO-. 3. MALAYIL KUTTAN, AGED 55 YEARS, S/O. KORAN, FEROKE AMSOM, NALLUR DESOM OF -DO -DO- R,R1,2 BY ADV. SRI.JACOB ABRAHAM R,R3 BY ADV. SRI.R.BINDU (SASTHAMANGALAM) THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05- 02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **S.S.SATHEESACHANDRAN,J.** ## **==========================** **R.S.A No. 310 of 2005 =========================== Dated, this the 5th day of February, 2014** ## **JUDGMENT** Appellants are defendants 1 to 4, 6,7 and 9 in O.S.No.600/1997 on the file of the Additional Munsiff Court, Kozhikode-II. Suit was filed by respondents 1 and 2 as plaintiffs for partition. Preliminary decree was passed in the suit by the learned Munsiff declaring the entitlement of plaintiffs to get 8/18 shares in the plaint property. Plaintiffs were allowed to have division of their share in the plaint property by metes and bounds in final decree proceedings relegating equities claimed by some of the defendants also to be considered in such proceedings. That preliminary decree was R.S.A.310/2005 2 challenged by defendants 1 to 7 and 9 filing an appeal reiterating the contentions resisting the suit claim for partition. In that appeal 8[th] defendant an assignee who purchased rights over a portion of plaint schedule property from one of the sharers, filed cross objections against the decree. The appeal and also cross objections were dismissed by learned Sub Judge, Kozhikode. Against the concurrent decision rendered by two courts below upholding the claim of plaintiffs for partition of plaint property and allotment of their shares, the above appeal has been filed. 2. Substantial questions of law raised in the appeal on which notice was ordered have been reframed after hearing counsel on both sides. Questions reframed for hearing are thus: (1) Have not both the courts below erred in not deciding the plea of ouster canvassed on the materials placed separately, and, in entering a definite finding on that question in R.S.A.310/2005 3 adjudging the claim for partition? (2) Is not the decree granted in favour of the plaintiffs without adjudging and deciding the plea of ouster of the appellants/defendants erroneous and unsustainable under law. 3. Partition of plaint B schedule property having an extent of one acre thirty cents is claimed in the suit. Admittedly that property belonged to the thavazhi of Kottayi Kunhamma. Case of plaintiffs that plaint schedule property belonged to Kalliani Amma, daughter of Kunhamma, and her two sons Govindan Nair and Gopalan Nair is not under dispute. First plaintiff is the widow of Govindan Nair and second plaintiff is his daughter, was the case of plaintiffs to claim partition of their share in the plaint property. Kalliani Amma, mother of Govindan Nair, after his death, had passed away, and as such plaintiffs, both of them together, are entitled to have 1/2 share in the R.S.A.310/2005 4 plaint property and the rest would go to the legal heirs of Gopalan Nair, defendants 1 to 7, was their case. 8[th] and 9[th] defendants were subsequently impleaded in the suit not as sharers but persons who claimed of obtaining rights in the property under documents created by some among the co-owners of the property. 4.Status claimed by plaintiffs as wife and daughter of late Govindan Nair s/o.Kalliani Amma to claim partition over the plaint property was challenged by defendants 1 to 7 contending first plaintiff was not the wife and second defendant not his daughter. On the death of Govindan Nair after the death of his mother all his rights in the property devolved upon his brother Gopalan Nair, their predecessor, and he continued as the owner in exclusive possession and enjoyment of the property till his death in 1985, according to these defendants. After his death his legal heirs, these defendants, partitioned the property among themselves and they are having absolute title over R.S.A.310/2005 5 the property allotted to them, was their case. Even if plaintiffs had any right over the property it is barred by limitation and ouster according to them. A portion of the property obtained by first defendant was assigned in favour of 8[th] defendant and pursuant thereto that defendant had put up a construction in that property. Under an assignment deed from sixth defendant additional 9[th] defendant obtained right over a portion of plaint property and he also constructed a house in that property, according to these defendants. Tarwad house situate in the plaint property had been renovated by first defendant expending his funds, and in the event of partition that building with land has to be allotted in the share of that defendant, was also canvassed while resisting the claim of plaintiffs for partition. 8[th] defendant resisted the claim reiterating the contentions of defendants 1 to 7 with an alternative prayer for allotting the land purchased by him with the building constructed towards his share if the R.S.A.310/2005 6 property is found partible. 9[th] defendant adopted the contentions of defendants 1 to 7. 5. On the pleadings of parties issues framed by the court included questions over the entitlement of plaintiffs to get partition and also whether their claim is barred by ouster and adverse possession. First plaintiff was examined as PW1 and Exts.A1 to A4 were exhibited for plaintiffs. For defendants DW1 and 2 were examined and Exts.B1 to B15 series were marked. Exts.X1 to X3 summoned and produced were also marked in evidence as court exhibits. 6. First plaintiff examined as PW1 asserted her status as the wife of Govindan Nair and that of second plaintiff as daughter born to her from the wedlock with him. Plaintiffs also tendered documentary evidence establishing that after the death of Govindan Nair, a government servant, his daughter and legal heir, second plaintiff, obtained employment in Government service under the dying-in-harness scheme. On such materials R.S.A.310/2005 7 placed learned Munsiff accepting the status claimed by first plaintiff as the legally wedded wife of Govindan Nair and second plaintiff as his daughter held that they are entitled to claim partition of their share in the plaint property as legal heirs of Govindan Nair. Challenge made by contesting defendants that the suit claim for partition is barred by adverse possession and ouster, appreciating the pleadings and materials produced, was turned down as meritless. Determining the shares available to the parties preliminary decree was passed in favour of plaintiffs relegating the equities canvassed by some of the defendants for consideration in the final decree proceedings. Challenge against that preliminary decree by defendants 1 to 7 jointly, in which cross objections were also raised by 8[th] defendant, have been turned down by learned Sub Judge affirming the findings made by learned Munsiff that plaintiffs have proved their status and also entitlement to have division and R.S.A.310/2005 8 allotment of their shares and that the challenge of adverse possession and ouster resisting their claim by defendants has no merit. Concurrent decision so rendered by two courts below is impeached in this appeal. 7. I heard the counsel on both sides. 8. Finding concurrently entered by the two courts below that first plaintiff is the legally wedded wife and second plaintiff, daughter of Govindan Nair, and, thus, they are entitled to succeed to his estate is conclusive and final. The only question is whether resistance to the claim of plaintiffs for partition as legal heirs of Govindan Nair, by defendants 1 to 7, co-owners of the property, and also their assignees, defendants 8 and 9, setting forth the plea of adverse possession and ouster, has been established in the case. Learned counsel for appellants inviting attention to the evidence of first plaintiff, examined as PW1, contended that she has unequivocally admitted that after the death of R.S.A.310/2005 9 Govindan Nair in 1961 the defendants continued in possession and enjoyment of the property and she was not provided with share of income. Possession of property by defendants was based on their right to possess exclusively and that she did not even go to plaint property after 1961, has been conceded by her in evidence,is the submission of counsel. She also admitted as PW1 that she has neither possession nor joint possession with the other sharers and she does not know even the extent of plaint property. Govindan Nair had passed away in 1961 and his mother, in 1969,and where plaintiffs have been denied of income in the property and kept out of possession by other sharers, defendants 1 to 7, claiming the property as exclusively belonging to them ouster of plaintiffs canvassed resisting their claim for partition has been fully established in the case, and, it is more so demonstrated by Ext.B1 registered partition deed entered by them in 1985, by which the defendants 1 to 7 have partitioned R.S.A.310/2005 10 the property among themselves, is the further submission of counsel. Learned counsel has relied on **Sooppi vs. Moosa (1969 KLT 121)** to contend that long continuous possession adverse to real owner with animus to hold the property as belonging to him against the whole world including the real owner, whether he be known, or unknown would be sufficient to establish the animus to hold the property hostile to exclude the real owner also. Reasoning of both the courts below that long and continuous possession of plaint property by defendants without bringing to the knowledge of plaintiffs their animus to hold so with hostility against them was not sufficient to sustain their plea of ouster, according to counsel, is erroneous and unsustainable. Reliance is also placed in **Sainaba Umma v. Moideenkutty (1987(2) KLT 59)** by learned counsel to contend that exclusive possession and enjoyment of property to the knowledge of other co-owners when continued with an open assertion of hostile title for considerable R.S.A.310/2005 11 length of time would be sufficient to constitute ouster. In the present case where facts and circumstances showed that plaintiffs had been denied of income from the property and defendants continued in exclusive possession and enjoyment asserting their title openly to the knowledge of plaintiffs, plea of ouster canvassed by defendants should have received acceptance, is the submission of counsel to urge that preliminary decree challenged has to be reversed and suit to be dismissed. 9. Learned counsel appearing for respondents 1 and 2, plaintiffs, contended that no specific plea of ouster as required to be pleaded with particulars under law has been raised in the suit. What has been pleaded, that too in the additional written statement filed, is only of adverse possession based on exclusive possession over the property from 1961 onwards contending that none other has any right over the property. Such a plea would not constitute an ouster, submits the R.S.A.310/2005 12 counsel. To establish the adverse possession of one co-owner against the other it is not sufficient to show that he is in sole possession and enjoyment of profits, but, ouster of the non possessing co owner must be established, submits the counsel. No case of ouster has been established, nor even pleaded is the further submission of counsel to contend that the appeal is devoid of any merit and it is only to be dismissed. ## 10. In **P.Lakshmi Reddy v. L.Lakshmi Reddy (AIR** **1957 SC 314)** apex court has explained when possession of a co-owner would constitute ouster of another co-owner and what is the proof required to establish such ouster. A co-owner is in sole possession and enjoyments of property, is not sufficient to prove adverse possession against another co-owner. A co-owner claiming his possession as adverse to another co-owner must prove by positive evidence his open assertion of hostile title coupled with exclusive possession and enjoyment to the knowledge of the other for the R.S.A.310/2005 13 period prescribed by law, to establish ouster of the other co-owner. Burden of proving such ouster is on the person claiming to displace the lawful title of the other co-heir. Possession of one co-heir is considered in law as possession of all co-heirs. Have the defendants in the present case established 'ouster' which is the challenge now canvassed to assail the decree concurrently passed by two courts upholding the claim of partibility of property and allotment of shares plaintiffs, is the question to be considered. 11. As rightly contended by learned counsel for plaintiffs not even the essential particulars to make out a case of ouster are pleaded in the written statement. Disputing the status of plaintiffs as legal heirs of late Govindan Nair what is claimed by them is only of having continuous exclusive possession, and, later of dealing with the property by executing a partition deed as if they alone are co-owners of the property. Defendants have no case that with the R.S.A.310/2005 14 necessary animus hostile to the title of plaintiffs and to their knowledge, they continued in exclusive possession and enjoyment of the property denying them share in the income of the property. It is settled law that non-participation in the rent and profits by a co-sharer does not amount to an ouster so as to give title by adverse to the other cosharer in possession. When one co-sharer continues in possession of the property the legal position would be that all co-sharers are in possession. Co-sharer in possession would become constructive trustee on behalf of the other co-sharers not in possession, even if the rent and profits are not shared with the other co-sharers. 12. Open assertion of hostile title coupled with exclusive possession by one co-owner to the knowledge of the other has to be established by a co-owner to sustain the plea of ouster and adverse possession by him against another co-owner of the property. To establish ouster there must be clear evidence showing that possession is held by one R.S.A.310/2005 15 co-owner with the hostile animus to keep out the other co-owners from possession. When a co-owner in possession does some other overt act in consequence of which other co-owner is ousted, there is constructive ouster, but, law requires in such cases not only that there should be some overt act on the part of the co-owner in possession but that other co-owners affected thereby should have either actual or constructive notice of such acts. In a case where such notice is actually given, the possession at once becomes adverse. Where no such notice is given the co-owner claiming title by adverse possession has to prove that the acts done, which are visibly hostile, notorious and adverse to the interest of the other co-owner are within the knowledge of the co-owner sought to be ousted. Knowledge, actual or constructive, on the part of the person ousted has to be pleaded and established. A co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile R.S.A.310/2005 16 anumus on his part in derogation of the other coheir's title. As between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment of one of them to the knowledge of the other, so as to constitute ouster. Other than claiming of exclusive possession and enjoyment of the property and execution of partition deed defendants have not even pleaded a case that they have committed any overt acts hostile to the title of plaintiffs, coheirs of property, with animus constituting ouster denying their right as co-heirs of the property. Defendants have executed a partition deed claiming to be co-owners of the property cannot be considered as a circumstance of giving constructive notice when no previous overt acts showing their hostile animus to the knowledge of plaintiffs have been pleaded or canvassed in the case. As against a co-owner principles governing adverse possession canvassed by counsel relying on **Sooppi's case and Sainaba Umma's case** referred to 17 R.S.A.310/2005 above have no application. Where no case of ouster has been pleaded there is no merit in the challenge canvassed that an issue thereof should have been separately framed and answered by the court.Challenge of ouster, in fact, was considered by the trial court, and also the appellate court appreciating the materials placed, to conclude that it has no merit. Concurrent finding rendered thereof repelling that challenge of defendants to resist partition is unassailable. Substantial questions of law are answered accordingly. Appeal is dismissed directing both sides to suffer their respective costs. Sd/- ## **S.S.SATHEESACHANDRAN JUDGE** /true copy/ P.S to Judge tpl/- R.S.A.310/2005 18 S.S.SATHEESACHANDRAN,J. ----------------------A.S.No.893 of 1996 & CROSS OBJECTION ----------------------- ## JUDGMENT 3[rd] October,2013