R.S.A. No.876 of 2004

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932** **RSA.NO. 876 OF 2004(D)** **-----------------------------------** **AS.221/1998 OF PRL.SUB COURT,IRINJALAKUDA OS.33/1997 OF MUNSIFF COURT, KODUNGALLUR** **....................** ## **APPELLANTS – APPELLANTS – DEFENDANTS:** **-----------------------------------------------------------** **1. UNNI,S/O.CHERAYI PADINJAKKARA BALAKRISHNA PANIKKAR, SREENARAYANAPURAM VILLAGE, ALA DESOM, KODUNGALLUR TALUK. (DIED)** **2. SARASA, D/O.CHERAYI PADINJAKKARA BALAKRISHNA PANIKKAR, DO. DO.** **3. PEETHAMBARAN, S/O.CHERAYI PADINJAKKARA BALAKRISHNA PANIKKAR, DO. DO. (DIED)** **4. KUTTAN @ KERSON, S/O.CHERAYI PADINJAKKARA BALAKRISHNA PANIKKAR, DO. DO. (DIED)** **5. SHAILA, D/O.CHERAYI PADINJAKKARA BALAKRISHNA PANIKKAR, DO. DO.** **6. JAYALAKSHMI, D/O.CHERAYI PADINJAKKARA BALAKRISHNA PANIKKAR, DO. DO.** **ADDITIONAL APPELLANTS IMPLEADED: ------------------------------------------------------** **7. REMA, W/O. LATE UNNI, SREENARAYANAPURAM VILLAGE, ALA DESOM, KODUNGALLUR TALUK.** **8. NAJU, S/O. LATE UNNI, DO. DO. DO.** **9. NIJU, S/O. LATE UNNI, DO. DO.** **ADDITIONAL APPELLANTS 7 TO 9 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED FIRST APPELLANT AS PER ORDER DATED 27.7.2006 IN I.A. NO.1549 OF 2006.** **10. BHANUMATHY, W/O. LATE PEETHAMBARAN, CHERAYI PADINJAKKARA, SREENARAYANAPURAM VILLAGE, ALA DESOM, KODUNGALLUR TALUK.** ## **11. C.P. BABU, S/P. LATE DO. DO. DO.** **ADDITIONAL APPELLANTS 10 AND 11 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED THIRD APPELLANT AS PER ORDER DATED 27.7.2006 IN I.A. NO.1476 OF 2006** - **12 NALINI K.S. W/O. LATE KUTTAN @ KURSON, CHERAYI PANDINJAKKARA, SREENARAYANAPURAM VILLAGE, ALA DESOM, KODUNGALLUR TALUK.** **13. SREEDEVI K.S. D/O. LATE KUTTAN @ KURSON, DO. DO.** **ADDITIONAL APPELLANT NOS.12 AND 13 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 4[TH] APPELLANT AS PER ORDER DATED 3.8.2006 IN I.A. 1358 OF 2006.** - **BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW** **RESPONDENT(S) – RESPONDENTS – PLAINTIFFS & DEFENDANTS 8 TO 11):** **-------------------------------------------------------------------------** **1. THANKAM, W/O.CHERAYI PADINJAKKARA RAMAKRISHNA PANIKKAR, SREENARAYANAPURAM VILLAGE,** **ALA DESOM, KODUNGALLUR TALUK.** **2. LAILA, D/O.CHERAYI PADINJAKKARA RAMAKRISHNA PANIKKAR, DO. DO.** **3. UJALA, D/O. DO. DO.** **4. HANZA, D/O. DO. DO.** **5. THAMBI, S/O. DO. DO.** **6. USHA, D/O. DO. DO.** **7. BABU, S/O. DO. DO.** **8. GIRLY, D/O. DO. DO.** **9. LATHA, D/O. DO. DO.** ## **10. RADHIKA, D/O. DO. DO.** **11. RAMAKRISHNA PANIKKAR, S/O.CHERAYI PADINJAKKARA UNNIPANIKKAR, DO. DO.** **(DIED)** **12. PRASAD, S/O.MANGALATH RAMU, DO. DO.** **13. SHAJI, S/O. DO. DO.** **14. PRAKASAN, S/O. DO. DO.** **RESPONDENT NOS.1 TO 10 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.11 AS PER ORDER DATED 5.12.2008 IN MEMO CF NO.6517/2008 DATED 1.12.2008** **ADV. SRI.RAM MOHAN.G. FOR R12- 14 SRI.G.P.SHINOD FOR R12 TO 14 SRI.MANU V. FOR R12 TO 14 SRI.RENJITH THAMPAN FOR R1 TO 10 SMT.P.A.ANITHA FOR R1, 4, 6, 8, 9** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.876 of 2004 ==================================== Dated this the 7[th] day of April, 2010** ## **J U D G M E N T** The following substantial questions of law are framed for a decision. (i) Have the defendants established a case of ouster? (ii) Have the courts below construed Exts.A5, A6, B1 and B3 in accordance with law? (iii) Has the oral evidence of P.W.1 been appreciated in accordance with the law? (iv) Is there any admission by P.W1 adverse to the interest of the plaintiffs which is an admission in law? (v) Do Exts.X1 to X8 amount to legal evidence of any interest of the defendants adverse to that of the plaintiffs? 2. Second Appeal is brought up by defendant Nos.2 to 7 in R.S.A. No.876 of 2004 -: 2 :- O.S. No.33 of 1977, a suit for partition of the schedule properties. It is not disputed that the said properties belonged to Lakshmi who died in the year 1948. Lakshmi had three sons – Ramakrishna Panicker, Balakrishna Panicker and Ramachandra Panicker. Respondents claimed that Ramachandra Panicker is not heard of for 40 years preceding the institution of the suit and hence he is to be presumed dead. According to respondent Nos.1 to 10 on the death of Lakshmi the suit property devolved on Ramakrishna Panicker and Balakrishna Panicker. Respondents 1 to 10 are legal representatives of Ramakrishna Panicker. Deceased defendant No.1 and appellants (defendant Nos.2 to 6) are legal representatives of the late Balakrishna Panicker. Thus respondent Nos.1 to 10 got one half share in the properties and the remaining one half went to the appellants and deceased defendant No.1. Respondent Nos.12 to 14 are assignees from appellants and deceased defendant No.1. Appellants and defendant No.1 contended that Ramachandra Panicker is alive and that respondent Nos.1 to 10 have no partible interest in the suit property. They claimed that after the death of Lakshmi the suit property was possessed and enjoyed by Balakrishna Panicker (their predecessor-in-interest). He executed assignment deeds in R.S.A. No.876 of 2004 ## -: 3 :- respect of the said property right from 1964 onwards and if at all respondent Nos.1 to 10 had any right over the property they have lost the same by adverse possession and limitation. Respondent Nos.12 to 14 contended that they purchased portion of the the suit property from a Society which got the property in court auction and hence their possession cannot be disturbed. There is also claim for reservation in respect of the property purchased by respondent Nos.12 to 14. Trial court found title over suit property in favour of Lakshmi; held that the plea of adverse possession and limitation raised by appellants cannot succeed and ordered partition of the suit property and providing for reservation in favour of respondent Nos.12 to 14. Appellants took up the matter in appeal but without success. Hence this Second Appeal. It is contended by learned counsel for the appellants that there is sufficient evidence on record to show that appellants and their predecessor-in-interest, Balakrishna Panicker have been in exclusive possession and enjoyment of the suit property following the death of Lakshmi in the year 1948 and that circumstance revealed that there was ouster of other co-owners from the suit property. Learned counsel appearing for respondent Nos.1 to 10 contended that finding of the courts below regarding title as well R.S.A. No.876 of 2004 -: 4 :- as adverse possession are based on evidence on record and it involved no substantial question of law. 3. So far as title is concerned it is not disputed by the parties that property originally belonged to Lakshmi, predecessorin-interest of appellants, deceased defendant No.1 and respondent Nos.1 to 10. So far as the case set up against Ramachandra Panicker is concerned though appellants claimed that he is alive they could not produce any evidence in support of that claim. Evidence on record revealed that he has not been heard of for more than seven years by those who would have heard of him had he been alive. Courts below are justified in presuming death of Ramachandra Panicker, under Section 108 of the Indian Evidence Act. In the circumstances finding of the courts below regarding title involved no substantial question of law. 4. Question raised is whether finding of the courts below regarding adverse possession is legally sustainable? It has come in evidence that predecessor-in-interest of appellants and deceased defendant No.1 executed possessory mortgage in the year 1954 concerning suit property. But it is seen that the said possessory mortgage was only in respect of the fractional interest he had in the suit property. Title to the property is traced by R.S.A. No.876 of 2004 ## -: 5 :- devolution consequent to the death of Lakshmi. Exhibit B2 is the receipt executed by the mortgagee on receipt of money due on the mortgage of the year 1954. There was assignment in the year 1967 by the predecessor-in-interest of the appellants where also title to the suit property is traced consequent to the death of Lakshmi and the sale was only of the share of the assignor. Similar situation is found in Ext.A5, assignment deed of the year 1963. Thus though it is in evidence that predecessor-in-interest of appellants and deceased defendant No.1 executed documents that was only in respect of his share in the suit property and that too, tracing title by devolution consequent to the death of Lakshmi. The above said documents not only are not in derogation of the right of other co-owners but acknowledges their right as well. 5. One argument learned counsel for the appellants advanced is that the said acknowledgment if any is not in favour of other co-owners of the suit property but in favour of strangers and hence respondent Nos.1 to 10 cannot claim advantage of that. That contention cannot stand in the light of Explanation (a) to Section 18 of the Limitation Act that acknowledgment may be addressed to a person other than a person entitled to property or R.S.A. No.876 of 2004 -: 6 :- right. Position may be different if one of the co-owners asserting right over the suit property exclusively in himself assigned the entire property in favour of the strangers to the knowledge of other co-owners in which case it may be possible to say that there ## is ouster (See **H.Ganesh Bhandari v. Chogicli & Others** - 1990 [1] KLJ 19). 6. Yet another point raised is that going by the evidence of P.W1, her husband had demanded partition and separate possession of his share in the year 1961, that was refused by the appellants or their predecessor as the case may be and that amounted to ouster. That according to learned counsel would indicate that title of other co-owners in the suit property was denied by the predecessor-in-interest of the appellants. Mere fact that there was a demand for partition and refusal in the the year 1961 in the facts and circumstances of the case and particularly since even after 1961 predecessor-in-interest of the appellants executed assignment deeds acknowledging his right as co-owner and assigning only his fractional interest in the property (See Exts.A5 and A6) cannot be taken as denial of title. 7. Courts below have found in the above facts, circumstances and evidence that the plea of adverse possession R.S.A. No.876 of 2004 -: 7 :- and limitation cannot stand. On going through the evidence on record and hearing counsel on both sides I am not able to find anything which revealed that for the statutory period appellants, deceased defendant No.1 or their predecessor-in-interest had been in possession and enjoyment of the suit property asserting hostile title to respondent Nos.1 to 10. As such courts below are justified in answering the issue regarding adverse possession and limitation against the appellants. Substantial questions of law framed are answered accordingly. 8. Reservation granted by the learned Munsiff while ordering partition of the property will remain as such. With the above observation Second Appeal is dismissed without any order as to costs. Interlocutory Application Nos.1533 of 2004 and 329 of 2010 shall stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv