IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 RSA.No. 1255 of 2010() ---------------------- AS.90/2002 of SUB COURT, CHERTHALA OS.95/1999 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANT/APPELLANT/DEFENDANT ----------------------------- MADHAVAN, S/O.NARAYANAN, VAZHAVELIL, KURUVANCHIRA, CHERTHALA NORTH MURI CHERTHALA NORTH VILLAGE,ALAPPUZHA DIST BY ADV. SRI.E.M.MURUGAN SRI.G.PRIYADARSAN THAMPI RESPONDENT/RESPONDENT/PLAINTIFF --------------- SURENDRAN,S/O.MADHAVAN, VAZHAVELI, KURUVANCHIRAYIL, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, ALAPPUZHA DIST ADV. SRI.R.AZAD BABU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1255 of 2010 ............................................ DATED THIS THE 15th DAY OF NOVEMBER, 2011 JUDGMENT First defendant in O.S.95 of 1999 on the file of Munsiff Court, Cherthala is the appellant. Respondent is the plaintiff. Second defendant died during the pendency of the suit itself. Suit was filed for partition contending that the plaintiff and defendants are members of a Marumakkathayam thavazhi of late Kali Manicka and they belonged to Hindu Ezhava governed by Marumakkathayam law of Inheritance. Appellant and Janaki are the children of Manicka. Respondent is the son of Janaki, the deceased second defendant. Plaint schedule property was obtained by Manicka under Ext.A2 partition deed 251/1120 as E schedule therein. On her death respondent and deceased second defendant are the sharers. Respondent is therefore entitled to get his share separated. 2. Appellant resisted the suit contending that plaint schedule property was obtained under Ext.A2 partition deed. But it was contended that parties are not Marumakkathayis and the RSA 1255/2010 2 respondent is therefore not entitled to claim any right and even if he has any right it was lost by adverse possession. It was contended that in respect of item No.2, house in the plaint schedule property, respondent or the mother have no right and item No.4 was constructed by the respondent in violation of the order in A.S.80 of 1987. 3. Learned Munsiff, on the evidence, passed a preliminary decree holding that parties are govered by Marumakkathayam law and under Ext.A2, respondent has 1/3 share in the property and he is entitled to get it separated. Appellant challenged the decree before Sub Court, Cherthala in A.S.90 of 2002. Learned Sub Judge, on re-appreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that courts below should not have relied on the recitals in Ext.A1 and Ext.A2 to uphold the claim that parties are Marumakkathayis and respondent, the son of the deceased second defendant, is not entitled to any share. It was also argued that in any case, in view of the evidence, RSA 1255/2010 3 courts below should have found that right, if any, of the respondent has been lost by adverse possession. It was also argued that even though there was a plea of adverse possession, not even an issue was raised on that question. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Appellant and deceased second defendant are admittedly the children of Kali Manicka. Plaint schedule property was alloted to the share of Manicka under Ext.A2 partition deed. Ext.A1 is the anterior title deed. Both Exts.A1 and A2 establish that parties are governed by Marumakkathayam Law of Inheritance. As those documents are anterior to the disputes involved in this case, as rightly found by the courts below, appellant is not entitled to contend that parties are not followers of Marumakkathayam system of inheritance. If that be so, as rightly found by courts below, when the plaint schedule property was alloted to Manicka, that property was obtained by Manicka on behalf of her thavazhi including the appellant, second defendant Janaki and respondent, the son of deceased second defendant. As respondent is the son of deceased daughter of Manicka, he is definitely entitled to get 1/3 RSA 1255/2010 4 share as found by courts below. 6. Though learned counsel argued that no issue on adverse possession was framed, when first respondent is admittedly a co- owner in the absence of a plea of ouster, question of adverse possession will not arise. The possession by one of the co-owners can always be for and on behalf of the other co-owner. Hence the rights of the non-possessing co-owner will not be lost, unless there was an ouster. There was no plea of ouster. In such circumstances, the preliminary decree passed by the courts below is perfectly correct. The appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk