IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 RSA.No. 757 of 2008() --------------------- OS.345/2001 of PRL.SUB COURT,KOTTAYAM A.S.NO.197/2006 OF THE DISTRICT COURT, KOTTAYAM .................... APPELLANTS: -------------------- 1. E.C.MATHEW, 73 YEARS, ILLICKAL HOUSE PUTHUPPALLY, NOW R/AT.T.C.4/2088 KAVU ROAD, KURVANKONAM, KAWDIAR, THIRUVANANTHAPURAM. 2. SIBY MATHEW, S/O.MATHEW, AGED 45 YEARS R/AT.ILICKAL HOUSE, PUTHUPALLY, KOTTAYAM. BY ADV. SRI.JACOB P.ALEX RESPONDENT(S): ---------------------------- KUNJUKUNJAMMA VARGHESE @ MARYKUTTY W/O.VARGHESE, 69 YEARS, R/AT.VETTOOR HOUSE, ETTUMANOOR, KOTTAYAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.757 of 2008 = = = = = = = = = = = = = = Dated this the 13th day of November, 2008 JUDGMENT Defendants 1 and 2 in O.S.No.345 of 2001 on the file of the Principal Sub Court, Kottayam are the appellants in this second appeal. The said suit instituted by the respondent herein was one for partition and separate possession of her half share over the plaint schedule property admeasuring 1.58 acres together with a residential building thereon. 2. The suit was resisted by the appellants contending, inter alia, that the rights of the plaintiff, if any, are lost by adverse possession and ouster. The courts below came to the concurrent conclusion that the plea of ouster has not been substantiated. The suit was accordingly decreed. Hence this second appeal by the defendants. 3. The plaint schedule property admittedly belonged to one Chacko who had a son and a daughter. The 1st defendant is the son and the plaintiff is the daughter. The said Chacko died on 1.03.84 leaving behind him his widow and his children, the plaintiff and the 1st defendant. The 2nd defendant is one of the sons of the 1st defendant. The widow of Chacko died only on 28.3.1999. Until then she was R.S.A.No.757 of 2008 2 residing in the house situated in the plaint schedule property. The suit was filed in the year 2001. The findings concurrently recorded by the courts below are to the effect that the exclusive possession, if any, of the 1st defendant could only be in his capacity as co-owner and that there is no evidence of ouster so as to defeat the rights of the plaintiff. The residence of the mother in the house situated in the plaint schedule property till 28.3.1999 when she breathed her last was also a pointer against the plea of adverse possession and ouster. Possession howsoever long need not necessary be hostile especially among co-owners unless he pleads and substantiate ouster. He also should plead the starting point of limitation when his possession became adverse to the other co-owners. The findings recorded by the court below are pure findings of fact from which there cannot be any questions of law. No questions of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 13th day of November, 2008. V. RAMKUMAR, JUDGE sj