Kunhimoideenkutty v. Kadeeja Umma and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 1ST DAY OF NOVEMBER 2012/10TH KARTHIKA 1934 CRP.No. 913 of 2004 ( ) ----------------------I.A.NO.186/99 IN E.P.NO.98/01 IN OS.251/1995 of SUB COURT, OTTAPPALAM. REVISION PETITIONER(S): ---------------------KUNHIMOIDEENKUTTY, MOORKKANAD AMSOM AND DESOM IN PERINTHALMANNA TALUK PALAKKAD DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI (SR.) RESPONDENT(S): -------------- 1. KADEEJA UMMA, W/O.LATE THANGUMTHODY AHAMMED KUTTY, RAYIRANELLUR AMSOM AND NEDUNGOTTUR DESOM IN OTTAPPALAM TALUK. 2. ASYA, THANGUMTHODY HOUSE, RAYIRANELLUR AMSOM AND NEDUNGOTTUR DESOM IN OTTAPPALAM TALUK. 3. SIDDIQUE, THANGUMTHODY HOUSE, RAYIRANELLUR AMSOM AND NEDUNGOTTUR DESOM IN OTTAPPALAM TALUK. 4. THENGUMTHODY AHAMMED KUTTY'S 2ND WIFE BEEVI UMMA, THANGUMTHODY HOUSE RAYIRANELLUR AMSOM AND NEDUNGOTTUR DESOM IN OTTAPPALAM TALUK. 5. RAINANATH, MINOR, BY GUARDIAN 4TH PETITIONER BEEVI UMMA, THANGUMTHODY HOUSE RAYIRANELLUR AMSOM AND NEDUNGOTTUR DESOM IN OTTAPPALAM TALUK. 6. THENGUNTHODY KUNHI MOIDEEN, MOORKKANAD AMSOM AND DESOM, IN PERINTHALMANNA TALUK. 7. PATHUKUTTY UMMA, MOORKKANAD AMSOM AND DESOM IN PERINTHALMANNA TALUK. BY ADV. SRI.SANTHEEP ANKARATH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-11-2012, ALONG WITH WPC. 16290/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: amk ## **K.VINOD CHANDRAN, J** **--------------------------------------------------** C.R.P.No.913 OF 2004 in W.P.(C) No.16290 OF 2010 --------------------------------------------------Dated this the 1[st] day of November, 2012. **==> picture [66 x 11] intentionally omitted <==** Kunhimoideenkutty, the 3[rd] respondent before the execution court is the revision petitioner herein. He along with his father-in-law and wife were respectively D3, D1 and D2 in the suit. The brother of D1 was the plaintiff. The suit was for partition of the properties scheduled in the plaint as item Nos.1 and 2. The plaintiff alleged that the properties which were sought to be partitioned were in fact acquired by himself, his brother the first defendant and one another; Ali. There was a partition among these three persons and the plaint schedule properties were set apart to the joint share of the plaintiff and the first defendant. The first defendant having enjoyed the properties by himself to the exclusion of the plaintiff and the plaintiff coming to know of an attempt by the first defendant to gift the said properties to his daughter and son-in-law (D2 & D3); approached the court. 2. Before the trial court, D1 and D2 filed a joint written statement and D3 filed a separate written statement. D3 contended that item No.1 was gifted to him, by an oral gift, at the time of his marriage to D2; jointly by the plaintiff and D1. Item No.2 was said to be subsisting in a C.R.P.No.913 OF 2004 2 lease in the name of the 3[rd] defendant's father. All these claims were negatived by the trial court and confirmed in appeal by a Division Bench of this Court. The claim set up with respect to Item No.1 being an oral gift was negated since the acquisition of the said property by Ext.A1 was after the marriage of the 3[rd] defendant with the 2[nd] defendant. The tenancy in the name of 3[rd] defendant's father with respect to item No.2 was also found to be totally unsubstantiated by any material evidence. The trial court clearly entered a finding that the 3[rd] defendant did not have either title or possession. The preliminary decree of the trial court was confirmed in appeal by this Court. Subsequently, final decree was passed. The plaintiff sought for execution of the decree. 3. The revision petitioner then contended before the execution court that he had possession of the property and he was an unnecessary party in the suit as also the execution petition. He reiterated his contention that the properties belonged to him. Again by virtue of the reason that these grounds were specifically negatived in the suit, the revision petitioner contended that the possession having been found in his favour, necessarily the suit should C.R.P.No.913 OF 2004 3 have contained a relief for recovery of possession and more than the prejudice caused to him **,** the State loses by way of court fees. 4. It is not known as to how the 3[rd] respondent can raise a contention at this stage that he is in possession of the property. The learned counsel for the revision petitioner Smt.P.A.Sheeja relies on the observation in the judgment dated 11-02-2000 in A.S.No.60/1999, filed against the preliminary decree. She specifically relies on the last-but-one sentence in paragraph 6. “After all, he was the son-in-law of defendant No.1, part owner of the property and he was residing with his wife and father-in-law in the wife's house and under such circumstances the fact that he was looking after the property on behalf of his father-in-law and the brother of his father-in-law cannot be considered to be a possession with the necessary hostile animus and adverse to his father-in-law and the brother of his father-inlaw”. 5. It cannot be gainsaid that the appellate court has found the possession of the 3[rd] defendant. The appellate court while considering the claim of adverse possession, which was negatived by the trial court, only observed that his presence in the property (possession (sic)) was only by C.R.P.No.913 OF 2004 4 virtue of his relationship with the first defendant, i.e., father-in-law and sonin-law. This observation was made, only to show that there could not have been any possession with requisite hostile animus; which is an essential ingredient for putting up a claim for adverse possession as was done in the suit. It cannot at all be said that this Court held that the possession of the plaint schedule properties is with the third defendant. 6. The execution court refused to consider the oral gift and the tenancy put up by the revision petitioner in the objection filed before it. It is relevant that both these contentions were urged before the trial court, and again taken up before the appellate court at the stage of preliminary decree. They were specifically negatived for want of any material evidence. Again a valiant effort was made before the execution court to claim an agency which was also negatived. 7. The learned counsel for the revision petitioner placed reliance on a decision of the Division Bench, _**Sarojini Amma v. Pappi Amma & Others**_ reported in 1973 K.L.T 148, and the judgment of a learned Single Judge in A.S.No.75/1998, _**Paramban v. Charthan**_ , dated 19-08- C.R.P.No.913 OF 2004 5 2009 to contend for the position that there should have been a prayer for recovery of possession and payment of court fees in accordance with the valuation prescribed, for the plaintiff **/** decree holder to recover possession from the 3[rd] defendant, who was not a sharer. 8. On a reading of _**Sarojini Amma**_ (supra), it is discernible that, it was a case, in which recovery was sought for in execution proceedings from a trespasser. The court found that then the court fees payable would not be the same as in a suit in which the plaintiff was excluded from possession by the other members of the joint family or other co-owners. 1973 K.L.T 148 was followed in the unreported judgment in A.S.No.75/1998 (C). That also was a decision in which rank trespassers were in possession of the properties. This Court found that without a prayer for recovery of possession and payment of requisite court fees for ejectment on the value of the entire property in the hands of trespassers; such property cannot be reduced to the possession of the joint family. The facts in the instant case are clearly distinguishable. 9. It is to be noticed that the revision petitioner does not claim C.R.P.No.913 OF 2004 6 that he is a trespasser. He does not dispute the marriage to the 2[nd] defendant. He also does not dispute his presence in the property by virtue of the said marriage. His claim is that item No.1 was gifted to him by an oral gift by the plaintiff and the first defendant. Item No.2 was said to have been subsisting in a tenancy to the 3[rd] defendant's father. Both the claims had been negatived by the trial court and confirmed by the appellate court. It does not lie in his mouth to again raise the very same contention in execution. The execution court rightly found that the 3[rd] respondent **/** revision petitioner was found to be not in possession of the property. The objections of the 3[rd] respondent were rightly negatived by the execution court. The impugned order is not liable to be interfered with and the same is confirmed. 10. The other contention of the learned counsel for the revision petitioner is that they have filed a suit for declaration of title and for injunction against forceful eviction, unless in accordance with law; before the competent civil court. That is evidenced by W.P.(c) No.16290/2010, in which the petitioner is the writ petitioner. The said writ petition has been filed against the order in I.A.No.1609/2006 in O.S.No.79/2000 rejecting an C.R.P.No.913 OF 2004 7 application for amendment. The said application was filed and moved on the date when the case was listed for trial. It sought for amendment of the pleadings, which claimed item No.1 was gifted to the plaintiff therein, by an oral gift of the father-in-law to be amended as a gift by the father-in-law and his brother (1[st] respondent herein). 11. The plaintiff and the respondents 1 and 2 before the execution court were also made parties in the suit, against whom adverse possession was claimed. The amendment sought was with respect to the claim of the oral gift. The plaintiff sought that the pleadings be amended to the effect that the oral gift was by his father-in-law and the latter's brother jointly. The court below rejected the contention for reason of the substantial change sought to be effected in the nature of the pleadings as also the belated claim made. That order is challenged under Article 227 of the Constitution of India and the said writ petition is also heard along with the civil revision petition. 12. The subsequent suit is seen filed in the year 2000, just before the execution was filed. The petitioner had suffered the order in A.S.No.60/1999, wherein the findings with respect to the possession as also C.R.P.No.913 OF 2004 8 the oral gift and tenancy entered into by the trial court were confirmed. There is no explanation as to why it was pleaded that the oral gift was by the father-in-law alone in the suit filed in the year 2000. It was the third defendants defence in the suit which gave rise to the instant proceedings that his father-in-law D1 and the plaintiff gifted an item of property to him at the time of his marriage to D2. That was found against him. The present suit is filed with a totally different plea evidencing the inconsistent stand taken by the third defendant. This lends credence to the plea of the plaintiffs legal representatives herein, that the attempt of the defendants is to somehow delay the partition ordered. The lower court, in the opinion of this Court rightly rejected the claim for amendment. On the strength of the findings above, the Civil Revision Petition as also the Writ Petition is held to be devoid of merit and is dismissed with costs through out. **==> picture [359 x 44] intentionally omitted <==** **//True Copy//** amk **P.A to Judge**