## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN**
**TUESDAY, THE 29TH DAY OF OCTOBER 2013/7TH KARTHIKA, 1935**
**RSA.No. 1251 of 2006 (G)**
**-------------------------**
**AGAINST THE JUDGMENT IN AS 52/2004 of DISTRICT COURT,KOZHIKODE DATED 29-11-2006**
**AGAINST THE JUDGMENT IN OS 633/2001 of PRL.MUNSIFF COURT, KOZHIKODE-II DATED 14-01-2004**
**APPELLANT/APPELLANT/PLAINTIFFS:**
**------------------------------------------------------**
**N.M.USMANKOYA, S/O. USMANKOYA, AGED 54 YEARS, BUSINESS, VAITHULNADIYA NADUVATTOM AMSOM, DESOM OF KOZHIKODE TALUK.**
**BY ADV. SRI.K.P.BALASUBRAMANYAN**
## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS:**
**--------------------------------------------------------------------------**
**1. P.P.USMAN KOYA HAJI, S/O. UMMACHABI,**
- **AGED 53 YEARS, BUSINESS, NALLALAM AMSOM DESOM, NEAR DEVADAS U.P.SCHOOL, HOUSE NO.3/204 KOZHIKODE TALUK.**
**2. P.P.MUHAMMED ASHRAF, S/O. UMMACHABI, AGED ABOUT 45 YEARS, BUSINESS RESIDING AT THAYYIL THAZHATH, PALAKANDI PERAMBU VALAYANAD AMSOM, DESOM OF KOZHIKODE TALUK.**
**3. P.P.ABDUL LATHEEF, S/O. UMMACHABI, AGED ABOUT 41 YEARS, BUSINESS, PULIKKALTHODI PARAMBIL INFRONT OF THE, PANNIYANKARA POLICE STATION PANNIANKARA AMSOM, DESOM OF KOZHIKODE TALUK.**
**4. P.P.KADEESABI, D/O. UMMACHABI, AGED ABOUT 63 YEARS, 33/1318, OTTAPPILAKKAL CHEVAYUR AMSOM, DESOM, KOZHIKODE TALUK.**
**5. P.P.BEEVI, D/O. UMMACHABI, (DIED) AGED 55 YEARS, RESIDING AT SOUDA MANZIL NEAR KUNDOOR NARAYANAN ROAD, PANNIYANKARA AMSOM DESOM OF KOZHIKODE TALUK.**
**...2**
**-2-**
## **RSA.No. 1251 of 2006 (G)**
**6. P.P.SUHARA, D/O. UMMACHABI, AGED ABOUT 38 YEARS, 26/443, FEBMEDIES MANALTHAZHATH, VALAYANAD AMSOM, KOZHIKODE TALUK.**
## **ADDITIONAL RESPONDENTS**
**7. SALEEM, S/O. P.P.BEEVI, KUNDOOR NARAYANAN ROAD, PAYYANAKKAL, P.O. KALLAI, KOZHIKODE.**
**8. NASEEM, - DO – DO -**
**9. RASEENA, D/O. - DO – DO -**
**10. SOUDATH, D/O. - DO – DO -**
**11. ALI ALIAS KUNHIMON – DO – DO -**
**12. KOYATTY HAJI, HUSBAND OF P.P. BEEVI – DO – DO -**
- **LRS OF DECEASED R5 ARE IMPLEADED AS ADDL. R7 TO R12 AS PER ORDER DATED 25.7.2013 IN I.A. NO.2052/2008**
**BY ADVS. SRI.C.P.MOHAMMED NIAS SRI.K.AJITHKUMAR**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**JJJ**
## **N.K. BALAKRISHNAN, J.**
------------------------------------------
R.S.A. No. 1251 of 2006 -----------------------------------------Dated this the 29[th] day of October, 2013
## **J U D G M E N T**
The plaintiff in a suit for injunction is the appellant. The plaint schedule property measures 31 cents. The plaintiff contended that the plaint schedule property originally belonged to one Athruman who died on 1.1.1920. Assya Umma, his wife died in 1954. Kunhikoya, Koyassan Koya, Ummer Koya, Usman Koya, Ali Koya and Fathimabi were their children. The plaintiff, whose name is Usman Koya, is the son of Usman Koya, one of the sons of Athruman. Usman Koya died in 1950. The plaintiff contends that his father Usman Koya had undivided right in the plaint schedule property as the legal heir of Usman Koya's father - Athruman. All the children of Athruman including Usman Koya, the father of the plaintiff, died. Ummachabi is the daughter of Fathimabi mentioned above.
**R.S.A. No. 1251/2006**
**-2-**
Defendants are the children of Ummachabi, who died in the year 2000. The prayer in the suit was for injunction restraining the defendants from committing any acts of waste and alienating the plaint schedule property. There was an eviction suit. A decree was passed therein. The landlord's right was assigned in favour of Assya Umma, the wife of Athruman. According to the defendants, Assya Umma got delivery of the property executing the decree which was obtained by Assya Umma's predecessor-ininterest (the original landlord). According to the defendants, that delivery was effected on 24.10.1920. Therefore, Athruman had no subsisting right as on the date of his death.
2. Though the plaintiff contended that the delivery was not effected, the courts below accepted the case of the defendants that delivery was effected since reference was
## **R.S.A. No. 1251/2006**
**-3-**
made, about the same, in Ext.B2 suit. That delivery account was not produced before the trial court because; though the defendants tried to get a certified copy of the same the copy application was returned stating that the same is not available. Evidence was produced to that effect.
3. Learned counsel for the appellant would submit that it was most unlikely that execution proceedings could have been initiated by the wife against the husband and that the delivery proceedings might have been only in respect of other properties which were held by the other tenants and so, unless there is documentary evidence to show that the delivery was obtained by Assya Umma from her husband – Athruman, the contention raised by the defendants cannot be sustained. But this contention was not accepted by the courts below since reference had been made about the delivery account in the various mortgage deeds and other
## **R.S.A. No. 1251/2006**
**-4-**
documents executed by Assya Umma. It is pointed out by the learned counsel for the appellant that if as a matter of fact Assya Umma had exclusive right over the suit property then there was no necessity of joining her son (who was the only major son at that point of time) in the mortgage deed. It is stated that in another document also all the children were made parties and so that would sufficiently indicate that Assya Umma had no exclusive right and that the tenancy right which Athruman had over the suit property, devolved on his children.
4. But this submission has been strongly resisted by the learned counsel for the respondents pointing out that in Ext.B7 itself it was specifically noted that the children of Assya Umma were made parties to the various documents only as guarantors to the documents executed by the mother. It is further submitted that in Ext.B7 the plaintiff's
## **R.S.A. No. 1251/2006**
**-5-**
father Usman Koya was also a party and that document (Ext.B7 of 1940) was never challenged. Hence, the plaintiff is estopped from contending otherwise. Simply because the certified copy of the delivery account could not be obtained since it took place in the year 1920, the plaintiff cannot take advantage of the same, the learned counsel for the respondents submits.
5. Sri. Ajith, the learned counsel for the respondents has pointed out that in cross examination PW1 has admitted:
“®æa ÕÞMÏáæ¿ ©NÏíAí (¦ØcN)
## µßGßÏ ¥ÕµÞÖ¢ ¾ÞX çºÞÆßAáKßÜï.”
Hence, according to Sri. Ajith, what is admitted by a party to be true must be presumed to be true unless the contrary is shown. In support of that submission, he has relied upon the decision of the Supreme Court in **Nathoo Lal v. Durga**
## **R.S.A. No. 1251/2006**
**-6-**
**Prasad – AIR 1954 SC 355** . The learned counsel submits that such an admission had to be made by PW1 since under Muslim law, children of pre-deceased son are not entitled to any right in the property of the parents of the pre-deceased son. It was also admitted by PW1 that before the death of Assya Umma, his father (PW1's father) died and so his father did not derive any right consequent to the death of Assya Umma. That apart, as stated earlier, Athruman was not having any subsisting right as on the date of his death in 1920. Therefore, the question of the plaintiff's father deriving any right through Athruman also did not arise. These aspects were considered by the lower appellate court.
6. Following are the substantial questions of law seen formulated in this appeal:
i. In the absence of any acceptable evidence to establish delivery of possession in execution of the decree in
**R.S.A. No. 1251/2006**
**-7-**
O.S. No.109/1919 of Munsiff Court, Vythiri the finding that Athruman, to whom admittedly the property belonged had no subsisting title to the property can be sustained in law?
ii. Whether a suit by a co-owner against other co-owner against alienation and waste is not maintainable in law?
7. The plaintiff can claim to be a co-owner if only Atruman had subsisting right at the time of his death. That has been found against. Hence, the second point does not arise for consideration. For the same reason the first point also is to be answered against the appellant.
8. The gravamen of the contention raised by the appellant is that as delivery account/receipt was not produced, there is no legal evidence to hold that the
## **R.S.A. No. 1251/2006**
**-8-**
delivery had been effected. Since, even in Ext.B7 document dated 22.11.1940, specific reference was made by executant Assya Umma that executants 2 to 9 – her children, were also added as parties to the document only by way of guarantee for the mortgage and since that document came into being prior to the filing of this suit – O.S. No.633/2001, the contention that the recitals in Ext.B7 cannot be relied upon is devoid of any merit.
9. It is also worthwhile to note that Usman Koya – the father of the plaintiff, died in 1950; he pre-deceased his mother – Assya Umma, who died only in 1954 and hence, the plaintiff's father did not get any right over the property in question. Therefore, the question of plaintiff deriving any right over the plaint schedule property also does not arise. On that ground also the court below was perfectly justified in holding that the plaintiff has failed to prove that he has
## **R.S.A. No. 1251/2006**
**-9-**
fractional right in the plaint schedule property. In other words, he has not proved to be a co-owner. The courts below have made a thread bare analysis of the entire evidence and held that the plaintiff has absolutely no right over the property and as such the plaintiff was rightly declined the relief sought for.
In the light of what has been stated above, this Regular Second Appeal is dismissed.
Sd/N.K. BALAKRISHNAN, JUDGE
//True Copy//
P.A. to Judge
jvt/jjj
