Second Appeal No. 855 of 1999

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY ,THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** **SA.No. 855 of 1999** **AGAINST THE JUDGMENT IN AS 256/1995 of DISTRICT COURT,THRISSUR DATED 04.06.1999** **AGAINST THE JUDGMENT IN OS 258/1984 of ADDITIONAL SUB COURTII,THRISSUR DATED 15.07.1994** **APPELLANTS/APPELLANTS 1 TO 3,5,6,8,9 AND RESPONDENTS 10,11,13,15,28 AND LRS OF R9/DEFENDANTS 10 TO 12,19,34,36,37,4,5,7,15,31 AND LRS OF D3:** **1 THRESIAMMA W/O.AKKARA PORUNCHU, RESIDING AT PANAMKUTTICHIRA DESOM, EDAKKUNNI VILLAGE, THRISSUR TALUK. 2 JOY, S/O.THRESIAMMA AND PORUNCHU, RESIDING AT PANAMKUTTICHIRA DESOM, EDAKKUNNI VILLAGE, THRISSUR TALUK.** **3 SANTHOSH, (DIED) S/O.THRESIAMMA AND PORUNCHU, RESIDING AT PANAMKUTTICHIRA DESOM, EDAKKUNNI VILLAGE, THRISSUR TALUK.** - **4 MERCY, D/O.AKKARA PORUNCHU, RESIDING AT PANAMKUTTICHIRA DESOM, EDAKKUNNI VILLAGE, THRISSUR TALUK.** - **5 THANKAMMA, W/O.AKKRA VARAPPAN, RESIDING AT PERINCHERRY, VALLUKKUNNATHUSSERRY DESOM, CHEVOOR VILLAGE, THRISSUR TALUK.** - **6 SEEMA,** **D/O.AKKARA VARAPPAN AND THANKAMMA, RESIDING AT PERINCHERY, VALLUKKUNNATHUSSERRY DESOM, CHEVOOR VILLAGE, THRISSUR TALUK.** **7 OUSEPH (MINOR), S/O.AKKARA VARAPPAN AND THANKAMMA, REPRESENTED BY MOTHER AND GUARDIAN THANKAMMA, RESIDING AT** SA.No. 855 of 1999 2 **PERINCHERRY, VALLUKKUNNATHUSSERRY DESOM, CHEVOOR VILLAGE, THRISSUR TALUK.** - **8 REETHA ALIAS REENA, D/O.THOMAS AND ROSSY, RESIDING AT EDAKKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **9 PAULY, D/O.THOMAS AND ROSY, RESIDING AT EDAKKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **10 BEENA, D/O.THOMAS AND ROSY, RESIDING AT EDAKKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **11 A.L.ANTO, E10/4G W.FLATS, GOLMURI-P.O., JAMSHEDPUR-3831003.** - **12 PAPPACHAN, EMPIRE STATIONARY STORES, MAVOOR.** - **13 ROSELY, W/O.LATE JOSE, RESIDING AT EDAKKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **14 SONY (MINOR), S/O.ROSELY, (REPRESENTED BY GUARDIAN MOTHER 13TH APPELLANT) RESIDING AT EDAKKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **15 THOMSON (MINOR),** - **S/O.ROSELY, (REPRESENTED BY GUARDIAN MOTHER 13TH APPELLANT) RESIDING AT EDAKKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **ADDL DARLY SANTHOSH,** - **A16 W/O.LATE SANTHOSH, AGED 48 YEARS, R/O.AKKARA HOUSE, PANAMKUTTICHIRA DESOM, EDAKKUNNI VILLAGE, THRISSUR TALUK.** - **ADDL THANKSY S.AKKARA,** - **A17 D/O.LATE SANTHOSH, AGED 21 YEARS, R/O.AKKARA HOUSE, PANAMKUTTICHIRA DESOM, EDAKKUNNI VILLAGE, THRISSUR TALUK.** - **ADDL SHELCY S. AKKARA,** - **A18 D/O.LATE SANTHOSH, AGED 20 YEARS, R/O.AKKARA HOUSE, PANAMKUTTICHIRA DESOM, EDAKKUNNI VILLAGE, THRISSUR TALUK.** SA.No. 855 of 1999 3 **ADDL MONEY S.AKKARA, A19 D/O.LATE SANTHOSH, AGED 16 YEARS, R/O.AKKARA HOUSE, PANAMKUTTICHIRA DESOM, EDAKKUNNI VILLAGE, THRISSUR TALUK. (REP.BY HER MOTHER DARLY SANTHOSH).** **ADDL FRANCY S.AKKARA, A20 D/O.LATE SANTHOSH, AGED 14 YEARS, R/O.AKKARA HOUSE, PANAMKUTTICHIRA DESOM, EDAKKUNNI VILLAGE, THRISSUR TALUK. (REP.BY HER MOTHER DARLY SANTHOSH). ARE IMPLEADED AS LRS OF DECEASED APPELLANT NO.3 AS PER ORDER DATED 20.02.2014 IN IA.483/2014.** **BY ADVS. SRI.N.L.KRISHNAMOORTHY SMT.LIGEY ANTONY SMT.SATHYASHREE PRIYA ESWARAN SRI.K.LAKSHMINARAYANAN** **RESPONDENTS/7TH APPELLANT, RESPONDENTS 1 TO 8,12,14,16 TO 27 AND 29 TO 37 IN APPEAL/PLAINTIFFS 2 TO 9,DEFENDANTS** - **6,9,16,17,18,20,23 TO 30,32,33,35 AND 38 TO 44:** - **1 THRESSIA D/O.AKKARA VARAPPAN & THANKAMMA, RESIDING AT PERINCHERRY, VALLUKKUNNATHUSSERRY DESOM, CHEVOOR VILLAGE, THRISSUR TALUK.** - **2 M.M.ANTONY (RETIRED MAJOR), S/O.AKKARA MATHEW, RESIDING AT I.V.HOME, OLD RAILWAY ROAD, ERNAKULAM NORTH.** - **3 ACHARU, W/O.AKKARA OUSEPH,RESIDING AT EDAKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **4 CATHERINE, D/O. OUSEPH AND ACHARU, RESIDING AT EDAKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **5 MATHEW, S/O. OUSEPH AND ACHARU,RESIDING AT EDAKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **6 AUGUSTINE, S/O. OUSEPH AND ACHARU,RESIDING AT EDAKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** SA.No. 855 of 1999 4 - **7 LAISA,** - **D/O. OUSEPH AND ACHARU,RESIDING AT EDAKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **8 JOHNSON, S/O. OUSEPH AND ACHARU,RESIDING AT EDAKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **9 FOUSTIN, S/O. OUSEPH AND ACHARU,RESIDING AT EDAKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **10 BABU,** - **S/O. THOMAS AND ROSY, RESIDING AT EDAKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **11 KOCHUTHRESSIA, D/O.AKKARA DEVASSY, RESIDING AT EDAKUNNI, OLLUR VILLAGE, THRISSUR TALUK.** - **12 A.L.MERCY, (DIED) C/O.JOHNY MAMPILLY, XLR ACCOUNT OFFICE, P.B.NO.222, JAMSHEDPUR-83100(17).** - **13 A.D.JOY, (DIED) S/O.AKKARA DEVASSY, 37/2, KOLATHUR LAYOUT, JALAGALLY, BANGALORE.** - **14 ELSA MARY, W/O.KALLUR VATTAKUZHI LONA MATHEW, P.O.KALLUR.** - **15 KOCHUMARY, (DIED) D/O.AKKARA ANTHONY AND W/O.VADAKKOOT PETER, P.O.PAVARATTY.** - **16 C.J.JOHNSON (DIED) CHERUPOONATHIL VEEDU, NEAR CHIYYARAM CONVENT, CHIYYARAM.** - **17 A.D.BABY, CLERK, STATE BANK OF INDIA, THRISSUR ROUND, THRISSUR-1.** - **18 C.J.THOMY @ THOMMY, ASOKA ENGINEERING WORKS, 532 OLD BOMBAY NAKA NASIC.** - **19 NIRMALA, (DIED)** - **W/O.A.K.OUSEPH, 4/3 VADURAJ SADAN, OPP.TO ASHA KRISHNA BUILDING, LINK ROAD, SAKINAKA-PIN-400072.** SA.No. 855 of 1999 5 **(THE APPELLANTS ARE EXEMPTED AT THEIR RISK FROM IMPLEADING THE LR'S OF DECEASED R19 AS PER ORDER DATED 19.09.2007 ON CMP.NO.1761/2001).** - **20 ANTHAPPAN, ROOM NO.12/13 DONGRI,USMAN SADAN NO.1, MOHILI VILLAGE, MUMBAI-400072.** - **21 SAVI, (DIED)** - **C/O.A.K.OUSEPH, 4/3 VADURAJ SADAN, OPP. ASHA KRISHNA BUILDING, LINK ROAD, SAKINAKA-PIN-400072.** - **22 SANTHA MARY, W/O.SIMON DEVASSY, 16/831 MHB COLONY, SARDAR NAGAR NO.1, SION-KOHIWADA, BPMBAY-400072.** - **23 SUNNY D.AKKARA, (DIED) QUR.NO.42/3, I.C.F.EAST COLONY, MADRAS-600038.** - **24 ALICE,** - **C/O.EMPIRE STATIONARY STORES, MAVOOR.** - **25 SISTER BREGETHA,** - **G.E.O.MERCY COLLEGE, PALAKKAD.** - **26 XAVIER,** - **S/O.AKKARA MATHEW, RESIDING WITH MAECHERY VARUNNY OUSEPH, FATHIMA NAGAR, THRISSUR VILLAGE.** - **27 A.M.DOMINIC, S/O.AKKARA MATHEW, NEAR LATIN CHURCH, CHALAKKUDY.** - **28 SISTER FRANCY, ST.MARY'S CONVENT, OLLUR, THRISSUR DISTRICT.** - **29 SISTER SUSAN, CARMALEETHA CONVENT, P.O.OLLUR.** - **30 KOCHUTHRESSIA,** - **D/O.AKKARA OUSEPH AND W/O.JOHNY, THAIVALAPPIL VEEDU, KARAMUCK P.O., KANDASSANKADAVU.** - **31 KUNJARAMMA,** - **W/O.AKKARA OUSEPH, RESIDING AT VALLUKUNNATHUSSERRY DESOM,CHEVOOR VILLAGE, THRISSUR TALUK.** - **32 SUNNY,** - **S/O.OUSEPH AND KUNJARAMMA, RESIDING AT** SA.No. 855 of 1999 6 **VALLUKUNNATHUSSERRY DESOM,CHEVOOR VILLAGE, THRISSUR TALUK.** **ADDL EMILY, R33 AGED 70, W/O.T.R.JOSE, THARAYIL HOUSE, ELINJIPALAM HOUSING COLONY, P.O.ELINJIPALAM, KOZHIKODE.** ## **ROSY,** **ADDL ROSY, R34 AGED 68, W/O.JOHN, THEKKUMPURAM HOUSE, P.O.KATOOR, THRISSUR. ADDL MARIYAMMA, R35 AGED 66, W/O.ANTONY, MENACHERY HOUSE, P.O.AMALA NAGAR, THRISSUR. ADDL ALPHONSA, R36 AGED 64, W/O.GEORGE, CHIRIYANKANDATH, P.O.PALAYOOR, PIN-680 506. ADDL JOSE PETER, R37 AGED 62, S/O.V.D.PETER, VADAKOOT HOUSE, P.O.PERAMANGALAM, THRISSUR. ADDL FRANCIS XAVIER, R38 AGED 60, S/O.V.D.PETER, VADAKOOT HOUSE, P.O.PAVARATTY, THRISSUR.** **ADDL ANTONY DAVID, R39 AGED 58, S/O.V.D.PETER, VADAKOOT HOUSE, P.O.PAVARATTY, THRISSUR.** **ADDL ANNIE, R40 AGED 56, W/O.PAUL, KODANKANDATH HOUSE, P.O.MANALUR,THRISSUR.** **ADDL THOMAS, R41 AGED 54, S/O.V.D.PETER, VADAKOOT HOUSE, P.O.PAVARATTY, THRISSUR.** **(ARE IMPLEADED AS LRS OF DECEASED R15 AS PER ORDER DATED 07.11.2013 IN IA.2962/2013)** **ADDL ROSILY SUNNY, R42 W/O.SUNNY D.AKKARA, AGED 69 YEARS, 68, HALLS ROAD, NEW NO.22, E-I, HALL MARK APARTMENTS, KILPAUK, CHENNAI-6000010.** **ADDL AKKARA SHERINE, R43 D/O.SUNNY D.AKKARA, AGED 46 YEARS, 68, HALLS ROAD,** SA.No. 855 of 1999 7 **NEW NO.22, E-I, HALL MARK APARTMENTS, KILPAUK, CHENNAI-6000010.** **ADDL SHEEN SUNNY, R44 S/O.SUNNY D.AKKARA, AGED 44 YEARS, 68, HALLS ROAD, NEW NO.22, E-I, HALL MARK APARTMENTS, KILPAUK, CHENNAI-6000010.** **ARE IMPLEADED AS LRS OF DECEASED R23 AS PER ORDER DATED 20.02.2014 IN IA 382/13.** **ADDL MARY JOY, R45 W/O.LATE A.D.JOY, AGED 73 YEARS, 37/2, KALATHUR LAYOUT, GANGAMMA CIRCLE, JALAHALLI, BANGALORE560013.** - **ADDL MAJO AKKARA, R46 S/O.LATE A.D.JOY, AGED 42 YEARS, 37/2, KALATHUR LAYOUT, GANGAMMA CIRCLE, JALAHALLI, BANGALORE560013.** - **ADDL JOSEPH AKKARA, R47 S/O.LATE A.D.JOY, AGED 41 YEARS, 37/2, KALATHUR LAYOUT, GANGAMMA CIRCLE, JALAHALLI, BANGALORE560013.** - **ADDL BIJU AKKARA, R48 S/O.LATE A.D.JOY, AGED 37 YEARS, 37/2, KALATHUR LAYOUT, GANGAMMA CIRCLE, JALAHALLI, BANGALORE560013.** **ADDL JULIE AKKARA, R49 D/O.LATE A.D.JOY, AGED 37 YEARS, 37/2, KALATHUR LAYOUT, GANGAMMA CIRCLE, JALAHALLI, BANGALORE560013.** **(ARE IMPLEADED AS LR'S OF DECEASED R13 AS PER ORDER DATED 08.04.2014 IN IA.999/2014).** - **ADDL SILVI XAVIER, R50 W/O.LATE SAVY XAVIER, AGED 56 YEARS, 4/3 VADURAJ SADAN, OPP.ASHAKRISHNA, BUILDING LINK ROAD, SAKINAKA-400072** **ADDL SILIEX XAVIER, R51 S/O.LATE SAVY XAVIER, AGED 25 YEARS, 4/3 VADURAJ SADAN, OPP.ASHAKRISHNA, BUILDING LINK ROAD, SAKINAKA-400072** **ADDL SHINILDA XAVIER, R52 D/O.LATE SAVY XAVIER, AGED 23 YEARS, 4/3 VADURAJ** SA.No. 855 of 1999 8 ## **SADAN, OPP.ASHAKRISHNA, BUILDING LINK ROAD, SAKINAKA-400072.** **(THE LEGAL HEIRS OF DECEASED R21 ARE IMPLEADED AS ADDL R50 TO R52 AS PER ORDER DATED 24.10.2018 IN IA.NO.2771/2015)** - **ADDL ROSILY,D/O LATE A.L MERCY, R53 AGED 62 YEARS,UNITY ENCLAVE, UNITY ROAD, KURIACHIRA,THRISSUR – 680006** - **ADDL SUNNY, S/O.LATE A.L MERCY, AGED 60 YEARS R54 C/O. SNEHA JOHNY MAMPILLY,S-48,MSSFA GIRLS HOSTEL,GAVASI, MANAPUR, WADHA ROAD, NAGPUR, MAHARASHTRA-440001** - **ADDL JOHNY,S/O.LATE A.L MERCY, AGED 58 YEARS R55 C/O. SNEHA JOHNY MAMPILLY,S-48,MSSFA GIRLS HOSTEL,GAVASI, MANAPUR, WADHA ROAD, NAGPUR, MAHARASHTRA-440001** - **ADDL JOJU JOSEPH, S/O.LATE A.L MERCY, AGED 56 YEARS R56 C/O. SNEHA JOHNY MAMPILLY,S-48,MSSFA GIRLS HOSTEL,GAVASI, MANAPUR, WADHA ROAD, NAGPUR, MAHARASHTRA-440001** - **ADDL JOSHY, S/O.LATE A.L MERCY, AGED 54 YEARS R57 C/O. SNEHA JOHNY MAMPILLY,S-48,MSSFA GIRLS HOSTEL,GAVASI, MANAPUR, WADHA ROAD, NAGPUR, MAHARASHTRA-440001** - **ADDL SHAJI,S/O.LATE A.L MERCY, AGED 52 YEARS R58 C/O. SNEHA JOHNY MAMPILLY,S-48,MSSFA GIRLS HOSTEL,GAVASI, MANAPUR, WADHA ROAD, NAGPUR, MAHARASHTRA-440001** - **ADDL GEETHA DAVIS,D/O.LATE A.L MERCY, AGED 50 YEARS R59 PANIKULAM HOUSE (CREATIONS), NEAR URBAN COOPERATIVE HEAD OFFICE, MISSION QUARTERS, THRISSUR680001** **THE LEGAL HEIRS OF DECEASED R12 ARE IMPLEADED AS ADDL R53 TO R59 AS PER ORDER DATED 8.1.19 IN IA.2773/15.** **ADDL LILLY, R60 AGED 56 W/O LATE JOHNSON, CHERUPUNNATHIL HOUSE, ST. PAUL'S STREET, KURIACHIRA P.O., THRISSUR-6.** SA.No. 855 of 1999 9 |**ADDL**|**LIJO,**| |---|---| |**R61**|**AGED 35**| ||**S/O LATE JOHNSON, CHERUPUNNATHIL HOUSE, ST. PAUL'S**| ||**STREET, KURIACHIRA P.O., THRISSUR-6.**| |**ADDL**|**JIJO,**| |**R62**|**AGED 34**| ||**S/O LATE JOHNSON, CHERUPUNNATHIL HOUSE, ST. PAUL'S**| ||**STREET, KURIACHIRA P.O., THRISSUR-6.**| |**ADDL**|**JIJI,**| |**R63**|**AGED 28**| ||**D/O LATE JOHNSON, CHERUPUNNATHIL HOUSE, ST. PAUL'S**| ||**STREET, KURIACHIRA P.O., THRISSUR-6**| ||**(THE LEGAL HEIRS OF DECASED R16 ARE IMPLEADED AS**| ||**ADDL.R60 TO ADDL R63 AS PER ORDER DATED 6.2.2017 IN**| ||**I.A.1090/2016).**| **BY ADVS. SRI.T.C.SURESH MENON FOR R14,R21,R50 TO R52 SMT.DHANYA P.ASHOKAN FOR R52 TO R56 AND R58, R33 TO R41 SRI.A.K.MADHAVAN UNNI FOR R45 TO R49 SRI.A.R.NIMOD FOR R50 TO R52 SRI.DILIP J. AKKARA FOR R31 AND R32 SRI.G.SREEKUMAR (CHELUR)FOR R60 TO R63 SRI.JIBU P THOMAS FOR R14 AND R21 SRI.K.P.DANDAPANI (SR.) FOR R2 TO R9 SRI.M.R.VENUGOPAL FOR R52 TO R56 AND R58, R33 TO R41 SRI.P.S.APPU FOR R50 TO R52, R14 & R21 SRI.KRISHNA PRASAD. S FOR R16 SRI.SREEKUMAR D.MENON FOR R42 TO R44** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA.No. 855 of 1999 10 ## **JUDGMENT** Defendants 4, 5, 7, 10 to 12, 15, 19, 31, 34, 36, 37 and the legal representatives of the deceased third defendant in a suit for partition are the appellants in the second appeal. The property sought to be partitioned is an item measuring 2 acres and 27 cents. The said property originally belonged to one Akkara Ouseph Ouseph. Akkara Ouseph Ouseph had two sons namely Ouseph and Mathew. The plaintiffs and defendants 38 and 39 are the successors of Mathew and defendants 1 to 37 are the successors of Ouseph. The case set out by the plaintiffs in the plaint is that the properties held by Akkara Ouseph Ouseph including the suit property were brought to sale by one of his creditors in execution of the decree in O.S No.60 of 1113 ME on the files of the District Court, Thrissur, and M/s.Ollur Little Flower Bank purchased the properties in the said proceedings. It is also their case that the purchaser of the properties did not obtain possession of the suit property in furtherance to the purchase and consequently the property remained in the possession of the successors of Akkara Ouseph Ouseph who died in the meanwhile. It is the further case of the plaintiffs that though their predecessor Mathew later purchased the suit property from M/s Ollur Little Flower Bank in terms of Ext.A1 SA.No. 855 of 1999 11 assignment deed and filed a suit as O.S No.497 of 1966 for recovery of possession of the same from the successors of Ouseph, the said suit was dismissed. According to the plaintiffs, the suit property which has been in the uninterrupted possession of Akkara Ouseph Ouseph and his successors is liable to be partitioned among the plaintiffs and defendants, who are the successors of his two sons, Ouseph and Mathew. 2. Defendants 1, 8, 10 to 12, 14, 19, 21, 34, 35 to 37 contested the suit contending that in so far as the rights, if any, of Akkara Ouseph Ouseph over the suit property was sold in execution of the decree in O.S No.60 of 1113 ME, the plaintiffs are not entitled to claim partition of the suit property in their capacity as the successors of Akkara Ouseph Ouseph. They also contended that they are in exclusive possession of the suit property and the right, if any, of the plaintiffs over the suit property is lost by adverse possession and limitation. 3. The trial court accepted the case of the plaintiffs and decreed the suit declaring the 48/216 share of the plaintiffs in the suit property. Though defendants 10 to 12, 14, 19 and 34 to 37 preferred an appeal challenging the decision of the trial court, the appellate court affirmed the decision of the trial court except in so far as it relates to the mesne profits. As noted, defendants 4, 5, 7, 10 to 12, 15, SA.No. 855 of 1999 12 19, 31, 34, 36, 37 and the legal representatives of the deceased third defendant are aggrieved by the decision of the trial court as affirmed by the appellate court. 4. The learned counsel for the appellants contended that in so far as it is admitted by the plaintiffs that the suit property was sold in execution of the decree in O.S No.60 of 1113 ME, the plaintiffs are not entitled to claim partition of the suit property in their capacity as the successors of Akkara Ouseph Ouseph. 5. As noted, the property sought to be partitioned is one which belonged to Akkara Ouseph Ouseph. There is no dispute to the fact that the properties held by Akkara Ouseph Ouseph including the suit property were sold in execution of the decree in O.S No.60 of 1113 ME and the same were purchased by M/s.Ollur Little Flower Bank. Likewise, there is also no dispute to the fact that though the suit property was sold, the possession of the same continued with the successors of Akkara Ouseph Ouseph as the purchaser has not obtained possession of the property pursuant to the sale through the process of the court. There is also no dispute to the fact that though Mathew purchased the property from M/s.Ollur Little Flower Bank in terms of Ext.A1 assignment deed and instituted O.S. No.497 of 1966 on the strength of the said document for recovery of possession of the suit property from the successors of his brother Ouseph who died in SA.No. 855 of 1999 13 the meanwhile, the said suit was dismissed. Ext.A5 is the plaint in O.S No.497 of 1966 and Ext.A6 is the written statement filed by the defendants in the said case. The stand taken by the defendants in Ext.A6 written statement is that they are in uninterrupted possession of the suit property as the successors of Akkara Ouseph Ouseph and that the acquisition of the suit property by Mathew from M/s.Ollur Little Flower Bank is on their behalf as well. A notice was caused to be issued by Mathew prior to the institution of O.S No.497 of 1966 to the defendants. Ext.A4 is the reply sent by the defendants who are the successors of Ouseph to the said notice. In Ext.A4 reply, it is stated by them that they are holding the suit property as co-owners and that they are, therefore, entitled to one half share in the property. It is seen that since the predecessor of the plaintiffs Mathew was not successful in recovering the suit property from the defendants who are the successors of Ouseph on the strength of Ext.A1 assignment deed, the present suit is filed thereafter claiming their share in the suit property as conceded by the defendants in O.S No.497 of 1966. Though the suit property was sold in execution of the decree in O.S No.60 of 1113 ME, the specific case of the defendants in O.S No.497 of 1966 was that possession was not obtained by the purchaser and the possession of the property continued to be with the successors of Akkara Ouseph Ouseph. It is beyond dispute that the purchaser of the property in SA.No. 855 of 1999 14 court auction sold the property back to Mathew, son of Akkara Ouseph Ouseph, and Mathew though instituted a suit for recovery of possession of suit property from the remaining successors of Akkara Ouseph Ouseph, he could not succeed in the said case. In other words, the possession of the property continued with the successors of Akkara Ouseph Ouseph. The present suit is one for partition of the possessory rights over the property. As noted, the stand taken by the contesting defendants in O.S.No 497 of 1966 is only that they are co-owners of the property entitled to one half share. Of course, if the contesting defendants could establish that they have ousted the plaintiffs from possession, they can certainly contend that the plaintiffs are not entitled to the decree for partition sought in the suit. The only question, therefore, is as to whether the defendants have established ouster of the plaintiffs from the property and thereby prescribed title to the property. There is no plea of ouster in the written statement filed by the contesting defendants in the suit nor do they plead the overt acts on the basis of which hostile possession over the property is attempted to be established. Of course, the defendants have pleaded adverse possession. The said plea as contained in paragraph 10 of the written statement reads thus : " അനനനയകനരര സസബനനചനടതതനളസ തശഷസ വഹകളനല അവരകക എത കകവശസമലസഉടമസനവകനശസസനദനചനടരണങനലഅതതനനയമപകനരസതരന പടനകവഹകളനലഈപതനകളകസപരണഅവകനശസസനദനചനടളതനണക.” The aforesaid is an alternative plea of adverse possession. In so far as SA.No. 855 of 1999 15 the defendants have no case that they are holding possession of property under a different title, the aforesaid alternative plea of adverse possession cannot even be regarded as a valid plea of adverse possession (See **K.T. Kurungottukandi Rarichakutty** v. **Aranda Rarichan and Ors.** [2018(4) KLT 944]). In the said view of the matter, I do not find any infirmity in the decisions of the courts below. The second appeal, in the circumstances, is without merits and the same is, accordingly, dismissed. **Sd/-** **P.B.SURESH KUMAR** **JUDGE** Mn