IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 AS.No. 480 of 2000(A) ---------------------------------- OS.265/1996 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): DEFENDANT ----------------------------------------- CHAKRAPANI, AGED 48, BUSINESS, S/O. KUMARAN, RESIDING AT VATHYATHU VELIYIL, UDAYAMPEROOR MURI, MANAKKUNNAM VILLAGE. BY ADV. SRI.H.SIVARAMAN SRI.MATHEW CHERIAN RESPONDENT(S): PLAINTIFF -------------------------- VISWAMBHARAN, AGED 64, TAILOR, S/O. VANJIPURAKKAL NANU, RESIDING AT VELIYIL THATTAPURAKKAL, UDAYAMPEROOR MURI, MANAKKUNNAM VILLAGE, KANAYANNOOR TALUK. ADV. SRI.N.NEELAKANDHAN NAMBOODIRI SRI.P.S.NARAYANARAJ THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 480 OF 2000 = = = = = = = = = = = = = = = Dated this the 8th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the 3rd Addl. Subordinate Judge, Ernakulam in O.S.265/96. The suit is one for partition and the Court below has decreed the suit and it is against that decision the defendant has come up in appeal. 2. Perused the records. The brief facts necessary for the disposal of the appeal are that the property belonged to the mother of the plaintiff and defendant namely Ethakunju as per the purchase certificate obtained and on her death the property had devolved upon the plaintiff and defendant and they are entitled to equal shares over the property. A.S. 480 OF 2000 -2- 3. On the other hand the defendant would contend the plaintiff has not resided in the plaint schedule property and he does not have any right over the property and therefore the suit is liable to be dismissed. The trial court on an appreciation of the materials had granted a decree in favour of the plaintiff. It is against that decision the defendant has come up in appeal. 4. The fact that the property did belong to Ethakunju cannot be seriously disputed. It is submitted that she had obtained a certificate of purchase but the plaintiff would contend that the original of the certificate of purchase is with the defendant and when a petition was filed he did not produce it. Anyhow the plaintiff produced the thandapper register and the correction as Exts.A3 and A4 which evidently A.S. 480 OF 2000 -3- reveal that Ethakunju was the owner of the property. So the title of Ethakunju is proved. 5. The next question is regarding the entitlement. There is no averment or any issues raised in this case regarding the adverse possession or ouster and it is also a settled principle that the possession of one co-owner will only inure to the benefit of the other co owners and a co-owner who pleads ouster has to specifically plead the date from which the possession has become adverse. No such pleadings are available in this case. The plaintiff is the son born to Ethakunju through one Nanu and the defendant is the son born to her through one Kumaran who did have a wife and children even at the time of having relationship with Ethakunju. Whatever it is, even though illegitimate, the fact that the property A.S. 480 OF 2000 -4- belonging to the mother being undisputed will give him right. So I find the properties have to be divided into two equal shares. Then it is seen that the defendant has contended that the old kudikidappu situated in the property had been destroyed and he had constructed a building and therefore the buildings situated are not partible. The Court below held that there is no evidence to prove that he had constructed the building but it found that some additional structures such as a leanto, bathroom, latrine etc. are constructed by the defendant and directed that it has to be allotted to him without valuation. Considering the fact that defendant is residing in the property and is running a tea shop the Court directed that it has to be allotted to him but subject to valuation. Therefore the Court considered the A.S. 480 OF 2000 -5- equitable principles and applied it to this case and had arrived at a decision. Therefore the judgment and decree of the trial court do not call for any interference. The appeal fails and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 480 OF 2000 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 480 OF 2000 = = = = = = = = = = = J U D G M E N T 8th July, 2010.