NELLIKKATHODI KALI and others v NELLIKKATHODI ITTIKEERAN and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939** **SA.No. 230 of 1996 (B) ----------------------AGAINST THE JUDGMENT AND DECREE IN AS 43/1987 of SUB COURT, MANJERI DATED 31-08-1995** **AGAINST THE JUDGMENT AND DECREE IN OS 19/1981 of MUNSIFF COURT, MANJERI DATED 20-01-1987** **APPELLANTS/DEFENDANTS 8 TO 12:** **----------------------------** **1. NELLIKKATHODI KALI,D/O. KUHAN, AGED 41 YEARS, KOTTUPATTA DESOM OF NARUKARA AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT.** **2. NELLIKKOTHODI CHERRU, D/O. KUNHAN, AGED 38 YEARS, KOTTUPATTA DESOM OF NARUKARA AMSOM, ERNAD TALUK MALAPPURAM DISTRICT.** **3. NELLIKKATHODI NANI ALIAS NARAYANAN, S/O. KUNHAN, AGED 23 YEARS,KOTTUPATTA DESOM NARUKARA AMSOM, ERANAD TALUK, MALAPPURAM DISTRICT.** **4.NELLIKKATHODI MANU ALIAS NARAYANAN, S/O. KUNHAN, AGED 28 YEARS, KOTTUPATTA DESOM OF NARUKARA AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT.** **5. NELLIKKATHODE BALAN, S/O. KUNHAN, AGED 22 YEARS, KOTTUPATTA DESOM OF NARUKARA AMSOM, ERANAD TALUK, MALAPPURAM DISTRICT.** **BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.O.V.MANIPRASAD** **RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 6: ---------------------------------------------** ***1. NELLIKKATHODI ITTIKEERAN, S/O. VALIYATHAN, 55 YEARS, RESIDING AT MANDI AMSOM DESOM IN ERARPURAM TALUK IN BANGALORE DISTRICT, KARNATAKA STATE.** *** R1 DIED. LRS IMPLEADED AS R7 TO R9.** ***2.NELLIKKATHODI AMMACHI, D/O. VALIYATHAN, AGED 56 YEARS, KOTTILANGADI AMSOM PERINYATTIRI DESOM, PERINTHALMANNA, MALAPPURAM DISTRICT** **3. NELLIKKATHODI KOTTI, D/O. VALIYATHAN, AGED 54 YEARS, ANAKKAYAM AMSOM AND DESOM IN ERNAD TALUK, MALAPPURAM.** **4. NELLIKKATHODI VELAYUDHAN ALIAS KESAVAN, SON OF CHAMI, AGED 49 YEARS, KARKALA SOUTH, SOUTH CANARA DISTRICT, KARNATAKA** ## ***5. VELUKUNHAN, S/O. KUNHUKUTTAN, AGED 51 YEARS,** **NARUKARA AMSOM, KOTTAPPATTA DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** ***R5 DIED. LRS IMPLEADED AS R10.** ***6. KUNNATHODI ARAMUGHAN ALIAS KUNHIMANNU, SON OF KARI, AGED 42 YEARS, NARAKARA AMSOM, KOTTAPATTA DESOM, ERNAKULAM TALUK, MALAPPURAM DISTRICT. *DIED LRS IMPLEADED** ***ADDL.R7 TO R9 IMPLEADED:** **ADDL.R7.SAROJA, D/O. ITTIKEERAN, AGED 54 YEARS, MURIKANDATHIL HOUSE, P.O. DOWNHILL, MALAPPURAM.** **ADDL.R8. VELAYUDHAN, AGED 58 YEARS, RESIDING AT MURIKANDATHIL HOUSE, P.O. DOWNHILL, MALAPPURAM.** **ADDL.R9. KUMARAN, AGED 56 YEARS, RESIDING AT MURIKANDATHIL HOUSE, P.O. DOWNHILL,MALAPPURAM.** **ADDL. RESPONDENTS 7 TO 9 IMPLEADED VIDE ORDER DATED 18.12.07 IN IA.774/2006 AS THE LRS OF DECEASED R1.** ***ADDL.RESPONDENT NO.10:** **ADDL.R10.IMBICHI, W/O. NEELAKANDAN, MANYATTUMKANDAM HOUSE, PODIYAD, MELMURI P.O., MALAPPURAM DISTRICT.** **ADDL. R10 IMPLEADED VIDE ORDER DATED 18.2.17 IN IA.2259/2006 AS THE LR OF DECEASED RESPONDENT NO.4** **ADDL.R11 TO R33 IMPLEADED:** **ADDL.R11 PAPPAN, RESIDING AT THODIMANNIL HOUSE, PERINTHETTI P.O., MAKKANAPPARAMBU, MALAPPURAM.** **ADDL.R12.AYYAPPAN, RESIDING AT THODIMANNIL HOUSE, PERINTHETTI P.O., MAKKANAPPARAMBU, MALAPPURAM.** **ADDL.R13.RAMAN, RESIDING AT THODIMANNIL HOUSE, PERINTHETTI P.O., MAKKANAPPARAMBU, MALAPPURAM.** **ADDL.R14. BHASKARAN, RESIDING AT THODIMANNIL HOUSE, PERINTHETTI P.O., MAKKANAPPARAMBU, MALAPPURAM.** **ADDL.R15. SIVADASAN, RESIDING AT THODIMANNIL HOUSE, PERINTHETTI P.O., MAKKANAPPARAMBU, MALAPPURAM.** **ADDL.R16. JANAKI, RESIDING AT THODIMANNIL HOUSE, PERINTHETTI P.O., MAKKANAPPARAMBU, MALAPPURAM.** **ADDL.R17. JANU, RESIDING AT THODIMANNIL HOUSE, PERINTHETTI P.O., MAKKANAPPARAMBU, MALAPPURAM.** **ADDL.R18. KALI, RESIDING AT THODIMANNIL HOUSE, PERINTHETTI P.O., MAKKANAPPARAMBU, MALAPPURAM.** **ADDL.R19.BICHU, RESIDING AT THODIMANNIL HOUSE, PERINTHETTI P.O., MAKKANAPPARAMBU, MALAPPURAM.** **ADDL.R20. KUTTAN, RESIDING AT THODIMANNIL HOUSE, PERINTHETTI P.O., MAKKANAPPARAMBU, MALAPPURAM.** **ADDL.R21. DEVAKI, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R22. MANI, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R23. CHANDRAN, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R24. RAMESAN, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R25.RADHA, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R26. VASANTHA, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R27. SUNITHA, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R28 MINI, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R29 SUJATHA, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R30 CHINNU, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R31 DINESH BABU, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R32 JOSE PRAKASH, NELLIKKATHODI HOUSE, NARUKARA P.O., MANJERI-VIA, KOTTUPATTA AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** **ADDL.R33 RESIDING AT SOURABHAYA PAYYANADU, PAYYANADU P.O, MANJERI AMSOM DESOM, MALAPPURAM DISTRICT.** **ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 2ND, 5TH AND 6TH RESPONDENTS 11 TO 33 AS PER ORDER DATED 7.7.2017 IN IA.2327/2007.** **R7, 8, 9 BY ADV. SRI.S.RAMACHANDRAN BY ADV. SRI.P.VIJAYAKUMAR R25-R28 BY ADV. SRI.K.M.FIROZ R25-R28 BY ADV. SMT.M.SHAJNA R25 -R28 BY ADV. SMT.UMMUL FIDA R25-R28 BY ADV. SRI.E.C.AHAMED FAZIL R14&,R15 BY ADV. SRI.A.K.MADHAVAN UNNI** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26.7.2017, THE COURT ON 09-08-2017 DELIVERED THE FOLLOWING:** ## **K.RAMAKRISHNAN,J.** ........................................... **S.A. No.230 of 1996** .......................................... Dated this the 9[th] day of August, 2017 ## **JUDGMENT** Defendant Nos. 8 to 12 in O.S.19/1981 on the file of the Munsiff Court, Manjeri are the appellants herein. The suit was one filed by the plaintiff, who is the first respondent in this appeal for partition of the plaint schedule properties and allotment of his share with following allegations: The plaintiff and defendants 1 to 6 are parties governed by Hindu law. Plaint-A schedule is the genology tree of the family of the plaintiff and defendants. Plaint B-schedule property originally belonged to the grandfather of plaintiff and defendants 1 to 3 Cherunni, who got it under a kanam demise from Thalayoor Illam in the year 1047 ME. He was in possession and enjoyment of the same till his death and after his death, it devolved on his only son Valiyathan. After the death of Valiyathan, the first defendant and plaintiff obtained joint possession of the same and first defendant had constructed a building situated in item Nos. 2 and 3 of the plaint B-schedule, utilising the income derived from there. Cherunni died 60 years ago and Valiyathan died 40 years ago. After the death of Valiyathan, first defendant, the father of the 4[th] defendant Cherunni and the plaintiff became joint owners and they are in joint possession and enjoyment of the same. 4[th] defendant's S.A.No.230 of 1996 2 father Cherunni died about 30 years ago and his right in the property devolved on 4[th] defendant. Plaintiff left the place about 10 years ago and plaintiff and defendants 1 to 4 are in joint possession and enjoyment of the property. First defendant was not sharing the income from the property. It is revealed that first defendant had cut and removed certain improvements in plaint B-schedule property and first defendant had transferred items 2 and 3 of plaint schedule in favour of defendants 5 and 6 and so they were impleaded in the suit. He assessed the annual income from the property as Rs.600/and claimed past profits for three years from the first defendant. 2. Since the first defendant was not amenable for partition, plaintiff has no other remedy, except to approach the court for partition of the plaint B-schedule properties and allotment of his 1/3[rd] share with past and future profits. First defendant died on 15.5.1984 and supplimental defendants 7 to 12 were impleaded as his legal heirs as per order in I.A.936/1984. 3. First defendant entered appearance and filed written statement contending that the suit was not maintainable, the description of plaint B schedule property was not correct and it was not identifiable. First defendant was not in possession of any joint property. Certain properties comprised in resurvey No.297/6 were obtained by the first defendant as his self acquired properties and neither the plaintiff nor the 4[th] defendant had any joint ownership or possession over the said properties. About 70 cents of land 3 S.A.No.230 of 1996 comprised in resurvey No.297/6 was obtained by the first defendant from Thalayoor Illom about 35 years ago and he had been in possession and enjoyment of the same. The allegation that, plaint B-schedule properties were properties included in kanam demisie in favour of their grandfather is not true and correct and hence neither the plaintiff nor 4[th] defendant was entitled to get any share out of the properties in the possession of the first defendant. The entire property included in the kanam demise were not included in the plaint schedule property and hence the suit was bad for partial partition. The building in which the defendant residing situated in the plaint B-schedule property, was not constructed by the predecessor of the parties. Neither Cherunni nor Valiyathan had got any right or ownership over the building in which first defendant was residing. The allegation that the building situated in Item No.2 and 3, was constructed by the first defendant by utilising the income derived from plaint B-schedule property was not correct and so denied. He had not cut and removed any improvements from plaint B-schedule properties and he was not liable for any damages. The allegation that the plaintiff had made demand for partition was denied by him. He had sold only the share of the defendant to defendants 5 and 6 and it is not sold to defeat the right of the plaintiff as alleged in the plaint. The calculation of share made in the plaint is not correct. Neither the plaintiff nor the 4[th] defendant was entitled to get any share. The plaintiff was not entitled to get 4 S.A.No.230 of 1996 mesne profits. Further first defendant had been in possession of the property for more than 35 years with a knowledge of the plaintiff and other legal heirs and right if any of the plaintiff and other legal heirs over the property was lost by ouster and adverse possession. The plaintiff was not entitled to get any relief. The geniology tree shown was not correct. He prayed for dismissal of the suit. 4. Defendants 2 and 3 filed joint written statements contending that plaint B-schedule property originally belonged to their grandfather and they are also entitled to get share in the B schedule property. 5. The 4[th] defendant filed separate written statement contending that plaint B-schedule property belonged to their grandfather and he was away from the plaint B-schedule property for the last 8 years in connection with his employment and he had been in joint possession of the property with other co-owners. He had more or less adopted the contentions of plaintiff. According to him, the first defendant had no right to sell the property to defendants 5 and 6 and he also prayed for partition. 6. The 5[th] defendant filed written statement and additional written statement contending as follows: The boundaries and measurement of plaint B-schedule property shown were not correct. Plaintiff had to prove that plaint B-schedule property was the property included under kanam demise in favour of his grandfather and he had to further prove that he was 5 S.A.No.230 of 1996 a legal heir as mentioned in A-schedule genology. Plaintiff left the place about 40 to 50 years ago and even if he had got any right, he had abandoned all his interests and right in the plaint schedule properties, and the first defendant and after the purchase, the 5[th] defendant was enjoying the same independently. Gopalan and another purchased the entire right over item No.2 of plaint B- schedule property with bonafide intention after paying full consideration in the year 1956 and said Gopalan and another improved the land and they were residing therein and first defendant obtained the said property in the year 1961 under oral agreement and this defendant purchased the said property in 1975 by registered sale deed dated 29.6.1975. He repaired the building and improved the land with permanent improvements. He obtained purchase certificate in the year 1974 and he denied that plaintiff or defendants 2 to 4 had got any right in the property and even if they got any right, the same was lost by adverse possession due to open, hostile and uninterrupted possession of the property by him and his predecessor and the plaintiff was not entitled to get any relief of partition. He had in the alternate contended that, if in the event of partition, the property in the possession of the defendant had to be allotted to the share of the first defendant and the improvements made had to be excluded from partition. He prayed for dismissal of the suit. 7. The 6[th] defendant filed written statement contending 6 S.A.No.230 of 1996 that plaintiff had no right over the plaint B-schedule property and he had left the place about 50 years ago. The first defendant did not pay any mesne profit to the plaintiff or to any of the defendants. He had purchased certain properties from the first defendant as a bonafide purchaser paying consideration in the year 1969. He had obtained some other properties from one Thumban in the year 1969 and he has been in actual possession and enjoyment of the same and obtained purchase certificate from land tribunal Manjeri as per the order in S.M proceedings 25719/74. The right if any of the plaintiff was lost by adverse possession. He also prayed for allotment of the property in the event of partition to him in equity. 8. Supplemental defendants 7 to 12 filed written statement and additional written statements reiterating the contentions raised by the first defendant in his written statement and also contended that the first defendant was in possession and enjoyment of 70 cents of land as his individual property comprised in resurvey No.297/6 and they obtained the property as his legal heirs and plaintiff was not entitled to get any relief and they prayed for dismissal of the suit. 9. On the basis of the pleadings following issues were framed by the court below for consideration: - i. What are the correct shares? - ii. Whether D2,D3 and D4 entitled for any shares? - iii. Whether defendants 2 to 4 are liable for mesne profits? 7 S.A.No.230 of 1996 iv. What is the correct identity of the plaint schedule property? v. Whether the suit is bad for partial partition? vi. Whether the suit is bad for non-joinder of necessary parties? vii. Whether the plaint schedule properties are available for partition? viii. Whether the right of the plaintiff or the 4[th] defendant is lost by ouster, adverse possession and limitation? ix. Whether the plaintiff is a legal heir of Cherunni? x. To what equities and reservations D5 and D6 are entitled? xi. Mesne profits, quantum and liability? xii. Whether court fee paid is correct? 10. In order to prove the case of the plaintiff, the plaintiff himself was examined as PW1 and Exts.A1 to A5 and Exts.C1 to C4 were marked on his side. In order to prove the case of the defendants, Dws 1 to 3 were examined and Exts.B1 to B48 were marked on their side. After considering the evidence on record, the trial court found that, as per Ext.A1 plan except plot A, other plots namely B, C, D, D1, E, E1 and F represents the plaint B schedule property which belonged to Cherunni, grandfather of the plaintiff and defendants 1 to 4 and the 1[st] defendant is not having any exclusive right and that the property is partible. The trial court also found that the 1[st] defendant had failed to S.A.No.230 of 1996 8 prove that he has got independent right over the plaint schedule property and he is not entitled to get any exclusive right. The plea of adverse possession and ouster claimed by defendants 1, 5, 6, and 7 to 12 was rejected by the trial court. Since defendants 2 and 3 being daughters, who were given in marriage after giving their shares, the trial court found that they were not entitled to get any right in the property and the property was partible and defendants 1 and 4 and plaintiff alone were entitled to get 1/3[rd] share each. The 5[th] and 6[th] defendants were granted value of building and improvements which were effected by them after the sale deed in their favour in Plots D and D1 and the building and improvements aged less than 7 years in Plot C and B left out for valuation for determining market value and made the first defendant liable for past profits for three years to the plaintiff and passed a preliminary decree for partition accordingly. 11. Dissatisfied with the same, defendants 7 to 12 filed AS.No.43/1987 and the 5[th] defendant filed cross objection and the 6[th] defendant filed AS.No.44/1987 before the Sub Court, Manjeri and the learned Sub Judge by the impugned judgment, dismissed both the appeals and cross objection confirming the preliminary decree and judgment passed by the trial court. Aggrieved by the same, the present second appeal has been preferred by the dissatisfied supplemental defendants 7 to 12 alone as appellants before this Court. 9 S.A.No.230 of 1996 12. During the pendency of the appeal, respondents 2, 5 and 6 died and supplemental respondents 11 to 33 were impleaded as their legal heirs as per order in IA.No.2227/2007, IA.No.2328/2007 and CM.Appln.No.845/2007. At the time of admitting the appeal, this Court appears to have formulated a question of law “whether plot B in the Commissioner's plan is available for partition”. But while hearing the counsel for the appellants, this Court felt that it is necessary to formulate certain other substantial questions of law also as the 6[th] defendant did not file any separate appeal and Plot B is the plot claimed by him as the property obtained by him from one Thoomban orally and so that point does not arise for consideration as the claim made by him had become final as he had not filed any second appeal. So the following substantial questions of law also formulated: (i) Whether the right, if any, of the plaintiff is lost by ouster and adverse possession? (ii) Whether the courts below were justified in holding that the plaint schedule property is available for partition as identified by the Commissioner? 13. These aspects were also heard on both sides 14. Heard Sri. O.V. Maniprasad, counsel representing Sri.M.K. Damodaran, senior counsel appearing for the appellants, Sri.A.T. Madhavan Unni, counsel appearing for 1[st] and 13[th] respondents, Sri. P.V. Vijayakumar, counsel appearing for 10 S.A.No.230 of 1996 respondents 16 and 22 to 24 and Sri. Ahammed Faizal, counsel appearing for respondents 25 to 28. 15. The learned counsel appearing for the appellants Sri. O.V. Maniprasad argued that the courts below have not properly appreciated the Commissioner's plan and report. Further there was an admission before the Commissioner that southern side of Plot D shown as plot B where the 6[th] defendant is residing was obtained by him from Thoomban, but in spite of that, it was not excluded from partition. Further Plot A was excluded from partition and that was not challenged by the plaintiff and that shows that they were not having any idea about the property available for partiton. Further at least from 1947 onwards, the first defendant is in possession of the property and he has been managing and assigning the property to the knowledge of other co-owners which has not been challenged by the plaintiff or other co-owners and thereby the right if any of the other co-owners is lost by ouster. He has relied on the decision reported in _**Ammini Tharakan v. Lilly Jacob**_ (2014 (2) KLT 187), **Ne** _**lapatla Ramaiah and others v. Kamatam Bikshamaiah and others**_ (2010 (2) SCC 139), _**L.N. Aswathama and another v. P. Prakash**_ (2009 (13) SCC 229) and _**Sooppi v. Moosa**_ (1969 KLT 121) in support of his case. 16. On the other hand, learned counsel appearing for the plaintiff in the court below and the 1[st] respondent in this appeal S.A.No.230 of 1996 11 submitted that the courts below by concurrent finding came to the conclusion that the property has been properly identified and the properties are available for partition and the right of the plaintiff is not lost by adverse possession and limitation or ouster and even there is an admission in the written statement of the 1[st] defendant that he had only sold his right in the property. That shows that there is an implied admission regarding his limited right and not exclusive right as claimed by him. So according to the learned counsel, the courts below were perfectly justified in decreeing the suit and that does not call for any interference. He had also argued that possession by one of the co-owners is not sufficient to dislodge the right of other co-owners not in possession especially when they were residing separately in connection with their employment. Counsel for the 6[th] defendant in the court below, who is now represented by his legal representatives, submitted in support of the arguments made by the counsel for the appellants. Other counsel also argued in respect of their respective claim made by them in the court below. 17. The case of the plaintiff in the plaint was that the plaint schedule property originally belonged to his grandfather Cherunni and after his death, his son Valiyathan was in possession of the property and after his death, the 1[st] defendant is in possession of the same. According to them, the property is available for partition and the property was in kanam demise of 1047. But the case of S.A.No.230 of 1996 12 defendants 1, 5,6 and 7 to 12 was that it was a self acquired property of 1[st] defendant and neither the plaintiff or defendants 2 to 4 are having any right and he had subsequently mortgaged a portion of the property to a third party, from whom the 5[th] defendant had purchased that portion and he had assigned some other portion to the 6[th] defendant and the 6[th] defendant is in possession of the same and the remaining portion is in his possession and no profit was claimed by the plaintiff or other legal heirs and as such, the right, if any of the plaintiff, is barred by limitation and adverse possession and ouster. 18. It is seen from Ext.A4 that while explaining the derivation of title, it is mentioned that “¥Õßæ¿ ÈßKᢠ5µ µÞÃÕᢠ4µ Îߺî ÕÞøÕáÎÞÏß 1047 εø¢ ²KßÈí µÞÃÞÇÞødɵÞø¢ ®æa ÎáJºí»X Îøߺî çºùáHßAí µÞâ ºÞVJßµßGßÏÄᢠÎáJºí»æa ÎøÃçÖ×¢ ÕÜßÏJÞÈá¢å¥ºí»æa ÎøÃçÖ×¢ ®ÈßAᢠ¥ÕµÞÖæMGÄᢠÕßÙßÄdɵÞø¢ 2µ 8 ¥Ã µÞÃÕᢠøIà Îߺî ÕÞøÕᢠÕßWAáKÄᢠµâ¿ß µ¿¢ µâ¿ÞæÄ ®æa èµÕÖ¢ §øßAáKÄá¢. **”** 19. So it is clear from this that the property covered by Ext.A4 is part of the property obtained by grandfather of the plaintiff and defendants 1 and 4, late Cherunni, as per Kanam deed dated 1[st] Magaram 1047. It is also admitted in Ext.A4 by the first defendant that after the death of Cherunni, his right devolved on his only son Valiyathan and after the death of Valiyathan, he is in possession. When PW1 was examined he had deposed that S.A.No.230 of 1996 13 Valiaythan has three children; the plaintiff, first defendant and father of the 4[th] defendant Cherunni and it was also deposed by him that after the death of Valiyathan, the 4[th] defendant's father Cherunni was managing the property as eldest son of deceased Valiyathan, their father. Only after the death of Valiyathan and father of the 4[th] defendant, Cherunni, that the 1[st] defendant had been in possession of the property and this fact was not challenged in cross examination. 20. It will be seen from Ext.A5 that southern portion of the property covered by Ext.A4 was assigned by the 1[st] defendant to the 6[th] defendant as per Ext.B32. It is also admitted by DW1 that southern portion of the property assigned in favour of the 5[th] defendant was in possession of the 1[st] defendant. The Commissioner identified Plots C, D, D1, E, E1 and F as plaint schedule property and Plot B was identified by the Commissioner in Ext.C1 plan as the property said to have been obtained by the 6[th] defendant from one Thoomban. Plots D and D1 were identified by the Commissioner as item No.2 of plaint schedule property and in the possession of the 5[th] defendant, out of which Plot D is in Sy.No.297/12. Plots E, E1 and F were identified as item No.1 of plaint schedule property which is in the possession of the 1[st] defendant. Plots C and C1 were the properties identified as item No.3 which is in possession of the 6[th] defendant on the basis of the measurements mentioned in the document. Further all these 14 S.A.No.230 of 1996 properties were having the same name namely Nellikkathodika Parambu. 21. Though the 1[st] defendant had a case that he had acquired these properties independently, no acceptable evidence was adduced on this aspect on the side of the 1[st] defendant or his legal representatives. Further the evidence of DW1 is not sufficient to come to the conclusion that these properties were self acquired properties of the 1[st] defendant as claimed by him. Further the evidence of Dws 2 and 3 also is not helpful to come to the conclusion that it is the self acquired property of the 1[st] defendant as they did not make any enquiry regarding the same. Further the recitals in Ext.A3 falsify the claim of the 1[st] defendant that it was his self acquired property. If it is the property of their grandfather and it is being managed by him after the death of their father and the elder brother, then it can only be said that he was managing the property as a co-owner for and on behalf of other co-owners. Though DW3 had a case that he had obtained southern portion of the property covered by Ext.B32 obtained from one Thoomban orally, he had not produced any document to prove this fact. The said portion was identified by the Commissioner as Plot B in Ext.C1 plan which is also lying contiguous with the other properties obtained by Cherunni by virtue of kanam demise of 1047. 22. It is true that in Ext.C2 Commissioner's report, it was mentioned by the Commissioner that it was admitted by the 15 S.A.No.230 of 1996 plaintiff, the representatives of the 1[st] defendant and defendants 2 to 4 that Plot B is in the possession of the 6[th] defendant as obtained from one Thoomban. That cannot be treated as an admissible evidence as when PW1 was examined before court, he did not support that version. Nothing was asked to him in the cross examination about this admission as well. He had only stated that the 6[th] defendant was in possession of some portion of the property and he came to understand that it was entrusted by the 1[st] defendant on rent. So under such circumstances, the trial court was perfectly justified in coming to the conclusion that Pots B, C, D, D1, E, E1 and F in Ext.C1 plan is available for partition and excluded Plot A which is in the possession of one Thoomban, who is not a party to the suit. Though this was challenged by the 6[th] defendant by filing an independent appeal as AS.No.44/1987 before the Sub Court, Manjeri, the same was dismissed by the appellate court and he did not challenge the same further as well and that has become final. So, neither the appellants nor the 6[th] defendant are now entitled to contend that Plot B identified by the Commissioner in Ext.C1 plan is not available for partition and that has to be excluded from partition and that was the question of law that has been formulated in the second appeal when the appeal was admitted. So, this point is answered against the appellants. 23. As regards the claim of the 1[st] defendant after his death by the appellants that the 1[st] defendant was in possession of 16 S.A.No.230 of 1996 the property against the interest of the other co-owners without sharing income and managing the same as his property at least from 1947 and thereby the right if any of the plaintiff and other co-owners is lost by ouster and adverse possession. 24. In the decision reported in _**Ammini Tharakan v. Lilly Jacob**_ (2014 (2) KLT 187) a Division Bench of this Court has considered the scope of ouster and adverse possession in respect of a co-ownership property and held as follows: _“The settled principle of law that in order to establish adverse possession of one co-heir as against another, it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the nonpossessing co-heir, by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the coheirs. When one co-heir is found to be in possession o the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession, merely by any secret hostile animus, on his own part in derogation of the other co-heirs title. But, there must be evidence of open assertion of hostile title, coupled with exclusive possession, and enjoyment by one of them to the knowledge of the other, so as to constitute ouster. The burden of making out ouster is one the person claiming to displace the lawful title of a co-heir by his adverse possession”._ 25. Further in the decision reported in _**Sooppi v. Moosa**_ (1969 KLT 121) another Division Bench of this Court has 17 S.A.No.230 of 1996 ## considered this aspect and held as follows: _“When one co-owner takes possession and continues in possession for a long time enjoying the income of the property without sharing it with the other co-owners it is a strong circumstance indicative of, or from which an inference can be drawn, that there was ouster of the co-owners not in possession;and if other circumstances also exist in support of this, courts will be justified in inferring ouster or exclusion. Ouster is certainly a positive matter: and the hostile animus necessary to constitute ouster must also be a positive matter. It is a matter involving action: it cannot be mere inaction. If the co-owner in possession did not give a share of the income to the co-owner out of possession merely because the latter did not ask for it, then, such animus may be only a negative animus. On his share the co-owner in possession would not have given him a share, then, the animus is positive, in the sense that it is indicative of an animus to exclude. For entertaining a hostile animus to oust the real owner, the person in possession need not know who the real owner is. If he has the animus to hold the property as his against the whole word including the real owner, whoever he be, known or unknown, the animus is sufficiently hostile to exclude the real owner also”._ ## 26. In the decision reported in _**L.N. Aswathama and another v. P. Praksah**_ (2009 (13) SCC 229) it has been held that: _“Pleas based on title (when title is claimed through the plaintiff owner) and adverse possession are mutually inconsistent, adverse possession does not begin to operate until_ 18 S.A.No.230 of 1996 _such title over disputed property is renounced by defendant. Unless claimant possessing the property has requisite animus to possess the property hostile to the title of the true owner, period for prescription will not commence. However plea of title claimed through another person (other than plaintiff owner) would not be mutually inconsistent with plea of adverse possession against said plaintiff owner”._ 27. In the decision reported in _**Nelapatla Ramaiah and others v. Kamatam Bikshamaiah and others**_ (2010 (2) SCC 139) it has been held that “in order to prove adverse possession, the person claiming adverse possession has to prove that he has been in possession of the property with hostile animus to the interest of the true owner openly, uninterruptedly and peacefully for more than the statutory period of 12 years and that must be properly pleaded and proved as well. No straight jacket formula can be made out for ascertaining as to what will amount to hostile animus on the part of the person in possession and it has to be considered on the basis of the evidence and conduct of the parties in each case”. 28. In this case, the 1[st] defendant was not available for examination. Further in the written statement filed by him, he had stated that he had only assigned his share in the property. Further though he had a case that he obtained property independently from the jenmi, the document produced by himself will show that he is claiming right through his grandfather and he never acquired any 19 S.A.No.230 of 1996 independent right over the same. Further the evidence of PW1 will go to show that till the death of their grandfather, he was in possession and enjoyment of the same and thereafter, his only son Valiyathan namely the father of the plaintiff, the 1[st] defendant and father of the 4[th] defendant was in possession and after his death father of the 4[th] defendant as the elder member was in possession of the property and only after the death of father of the 4[th] defendant, the 1[st] defendant was managing the property. It was also brought out in evidence that the plaintiff and father of the 4[th] defendant were working away. So under such circumstances merely because he is executing some document alone is not sufficient to come to the conclusion that he has got the hostile animus to enjoy the property as his own. If he is only a co-owner and obtained purchase certificate in respect of the property, then that will enure to the benefit of other co-owners as well especially when he had failed to establish that it was his self acquired property as claimed by him. It is settled law that mere non participation of profits by a co-owner who is not in possession of the property for long time alone is not sufficient to infer adverse possession or ouster on the part of the co-owner in possession of the property. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that the defendants 1, 5, 6 and 7 to 12 have failed to prove that they have perfected title by adverse possession or ouster so as to deny partition of 20 S.A.No.230 of 1996 the property and allottment of share to the plaintiff and rightly held that the right of the plaintiff or other co-owners is not lost by adverse possession or ouster. 29. As regards the share of defendants 2 and 3 are concerned, who are female members, it was deposed by PW1 that at the time of marriage, they were given their due share and so they are not entitled to get any share in the property and this aspect has not been challenged by them in cross examination of PW1 and they did not adduce any independent evidence regarding this aspect as well. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that defendants 2 and 3 are not entitled for any share and directed the properties found to be available for partition into three equal shares and allottment of one such share to the plaintiff, one such share to the 4[th] defendant and one such share jointly to defendants 7 to 12 as the legal heirs of the 1[st] defendant. The courts below were also perfectly justified in disallowing any reservation in favour of the 1[st] defendant, but justified in granting reservation in respect of improvements made by defendants 5 and 6 and as far as possible, allot the properties which were in their possession from the share of the 1[st] defendant. This was confirmed by the appellate court as well. So under such circumstances, this Court do not find that there is no illegality committed by the courts below in passing the impugned judgment 21 S.A.No.230 of 1996 and they do not warrant any interference at the hands of this Court and the questions of law raised have been answered accordingly against the appellants. So the second appeal lacks merit and the same is liable to be dismissed. In the result, the second appeal fails and the same is hereby dismissed. The preliminary decree and judgment passed by the trial court and confirmed by the appellate court are hereby confirmed. Considering the relationship between the parties, parties are directed to bear their respective costs in the second appeal. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** ss/cl 22 S.A.No.230 of 1996 ## **K.RAMAKRISHNAN,J.** ...................................... **S.A. No.230 of 1996** ................................. 9[th] August, 2017 **JUDGMENT**