IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 SA.No. 136 of 1994(G) ----------------------------- AS.110/1987 of III ADDL.SUB COURT, ERNAKULAM OS.222/1981 of ADDL. MUNSIFF COURT, ERNAKULAM .................... APPELLANT(S): /APPELLANTS IN AS. 111/87 AND RESPONDENTS IN AS.110/87 -------------------------------------------- IN LOWER COURT/PLAINTIFFS IN THE SUIT. 1. VEERANKUTTY, AGED 59 YEARS, S/O. KUNJAN MARAKKAR, RESIDING AT KAVUNGAPADATH PUTHUPALLIPRAM. *2. KOCHUPATHU, AGED 72 YEARS, D/O. KUNJAN MARAKKAR, RESIDING AT KUTTIKATTU PARAMBIL, CHUTTUPADU KARA, EDAPPALLY NORTH VILLAGE (DIED). 3. SAREEBA, AGED 54 YEARS, D/O.KUNJAN MARAKKAR, RESIDING AT MALIYAM VEETTIL , DO. DO. *4. ALIYUMMA, AGED 76 YEARS, D/O. KUNJAN MARAKKAR, RESIDING AT THOTTUPARAMBIL, PUTHUPALLIPURAM KARA, THRIKKAKARA NORTH VILLAGE (DIED). 5. SUBAIDA, AGED 44 YEARS, W/O. HAMEED, RESIDING AT KUTTIKATTU PARAMBIL, CHUTTUPADU KARA, EDAPPALLY NORTH VILLAGE. 6. NAZEER, AGED 24 YEARS, S/O. HAMEED, DO. DO. 7. SEBEYA, AGED 22 YEARS, D/O. HAMEED, DO. DO. 8. NAHAS, AGED 20 YEARS, S/O. HAMEED, DO. DO. 9. JASEELA, AGED 18 YEARS, D/O. HAMEED, DO. DO. 10. KUNJU MOHAMMED, S/O. ALIYUMMA, THOTTUMPARAMBIL PUTHUPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE. 11. ABOOBACKER, S/O. DO. DO. 12. IBRAHIM KUNJU, S/O. DO. DO. APPELLANTS 10 TO 12 ARE THE LEGAL REPRESENTATIVE OF DECEASED 4TH APPELLANT. BY ADV. SRI.K.V.JAYACHANDRAN S.A. NO.136/1994 RESPONDENT(S): /RESPONDENTS IN AS.111/87 & APPELLANTS IN AS.110/87 -------------------------- IN LOWER APPELLATE COURT/DEFENDANTS IN THE SUIT. 1. NABEESA, AGED 48, D/O. KUNJAN MARAKKAR, RESIDING AT MAROTTIKKA PARAMBIL, PUTHUPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE. 2. NAINA, AGED 60, S/O. KUTTY, DO. DO. 3. SALIM, AGED 33, S/O. NAINA, DO . DO. *4. RAMLA, AGED 31, D/O. NAINA, DO. DO.(DIED) 5. RAZIA, AGED 27 , D/O. NAINA, DO. DO. 6. BABU, AGED 25, S/O. NAINA, DO. DO. 7. SHARIBA, AGED 54, W/O. KATHIRPILLAI, RESIDING AT KAVUMGAPADATHU, DO. DO. 8. JAMEELA, AGED 35, D/O. KATHIRPILLAI, DO. DO. 9. SUBI, AGED 32 D/O. DO. DO. 10. NADEERA, AGED 30, DO. DO. 11. SABURA, AGED 27, DO. DO. 12. NAZEER, AGED 25 , S/O. SHARIBA, DO. DO. 13. NAUSHAD, AGED 20, S/O. SHARIBA, DO. DO. *14. MUHAMMAD, S/O. KUNJANMARAKKAR, AGED 65 YEARS, RESIDING AT KAVUNGAPADATH, PUTHUPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE. (DIED). *IT IS RECORDED THAT 4TH RESPONDENT DIED ISSUELESS AND RESPONDENTS 1,2,3,5 &6 WHO ARE ALREADY ON THE PARTY ARRAY ARE RECORDED AS THE LEGAL HEIRS OF DECEASED 4TH REPONDENT AS PER ORDER DTD.14.8.2007 IN MEMO CF. 3039/07. ADDL. R15 TO R22 IMPLEADED. 15. HALIMA MUHAMMED, AGED 60, W/O. LATE MUHAMMAD, ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI. 16. RAILA, AGED 43, D/O. LATE MUHAMMAD ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI. S.A.136/1994 17. NASEEMA, AGED 40, D/O. LATE MUHAMMAD , ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI. 18. NISSAR, AGED 38 , S/O. LATE MUHAMMAD, ANJIKATHU CHANGAMPUZHA NAGAR, KOONAMTHAI 19. RASHEED, AGED 36, S/O. LATE MUHAMMAD, ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI. 20. AASMA, AGED 33, D/O. LATE MUHAMMAD , ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI. 21. SALAM, GED 28, S/O. LATE MUHAMMAD, ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI. 22. ANSAR, AGED 24, S/O. LATE MUHAMMAD, ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI, THE LEGAL HEIR OF DECEASED 14TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 15 TO 22 AS PER ORDER DTD. 25.6.04 IN CMP.1978/1998. R1,2,3,5,&6 BY ADV. SRI.P.A.ABDUL JABBAR R7 TO R13 BY ADVS.SRI.K.K.JAYASOORIAN, SRI.P.M.KUNJIMOIDEENKUTTY, SRI.LAL K.JOSEPH, SRI.A.A.ZIYAD RAHMAN, SRI.V.R.REKESH. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 136 of 1994 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2010. JUDGMENT The plaintiffs in O.S. 222 of 1981 before the Munsiff's Court, Ernakulam are the appellants. 2. Late Kunjan Marakkar had eight children. They are Muhammed, the first plaintiff, Veerankutty, the second plaintiff, Kochupathu, the third plaintiff, Sareeba, the fourth plaintiff, Aliyumma, the fifth plaintiff and Hameed, who is no more and his legal heirs are plaintiffs 6 to 10. He had a daughter by name Nabeesa, who is shown as the first defendant. The second defendant is her husband and defendants 3 to 6 are their children. He has another son Kadir Pillai, who is no more and his legal heirs are defendants 7 to 13. 3. The suit is one for partition. The plaint schedule consists of two items, namely 1.16 acres in Sy. Nos.651/8A and 651/8B of Puthuppally Village and item S.A. 136/1994. 2 No.2, which consists of 13 ½ cents in Sy. No.712/5 of the same Village. 4. Items 1 and 2 of the plaint schedule and another extent of 69 ½ cents comprised in various survey numbers originally belonged to Kunjan Marakkar, who is the predecessor in interest of Kadir Pillai, first defendant and the plaintiffs. After the death of Kunjan Marakkar, according to the plaintiffs, his rights devolved on the legal heirs, who were since then in joint possession. The legal heirs decided that for the purpose of proper management, all the properties be entrusted to Kadir Pillai. Kadir Pillai possessed and managed the properties on behalf of the co- owners and he used to give them their due share of income. As regards 69 ½ cents in Sy. No.65/2, the second plaintiff and the husband of the sixth plaintiff assigned their share to the first plaintiff. So that he had 6/14 shares. Muhammed, another son of late Kunjan Marakkar had filed O.S. 513 of 1964 for partition. Plaintiffs 3, 5 and the first defendant relinquished their shares in favour of the first S.A. 136/1994. 3 plaintiff. Since then, the entire 69 ½ cents has become the property of the first plaintiff and that is not included the suit. He is the absolute owner thereof. The other two items were in the possession and management of Kadir Pillai and on his death his legal heirs are managing the same on behalf of all the co-sharers. Muhammed, who has filed O.S. 513 of 1964 had also relinquished his rights over all the three items in favour of the first plaintiff and thereafter 69 ½ cents has become the absolute property of the first plaintiff. One Abdul Rahiman had claimed right over plaint item No.2 and laid O.S. 97 of 1971making defendants 1 and 2 and Kadir Pillai as the defendants. That was dismissed. Thereafter the first and second defendant colluded with Abdul Rahiman and pulled down the hut in the property and put up a pucca building. Kadir Pillai instituted O.S. 267 of 1979 for injunction against defendants 1 and 2. During the pendency of the suit, Kadir Pillai died and his legal heirs came on the party array. It seems that the matter was comprised and a deed was executed between the legal heirs of Kadir Pillai S.A. 136/1994. 4 and defendants 1 and 2 without the junction of the other co- sharers. That transaction is not valid and binding on the plaintiffs. The first and second defendant obtained kudikidappu right over 2nd item of property in collusion with defendants 7 to 13. They are not entitled to kudikidappu rights. Kadir Pillai could not have granted any permission to either the first defendant or to the second defendant to reside in the property and that in fact he has not given any consent also. Even if Kadir Pillai has given any such permission, that is not binding on the plaintiffs. On the basis of these allegations the suit was laid for partition, whereby the plaintiffs claimed 8/14 shares. 5. First defendant and defendants 2 to 6 filed written statements almost on the similar lines. They contended that they are not necessary parties to the suit and the suit is bad for mis-joinder as well as non-joinder of parties. They disputed the title of the plaintiffs. Item No.2 as in the exclusive possession of Kadir Pillai and since defendants 1 and 2 did not have any abode of their own, S.A. 136/1994. 5 they were allowed to reside and they have put up a building and are residing therein. The plaintiffs were fully aware of O.S. 267 of 1979 filed by Kadir Pillai and what transpired thereafter. These defendants have purchased the kudikidapu rights by approaching the Land Tribunal concerned. The balance 3 ½ cents had been purchased by the first defendant as per document No.6077 of 1980. Based on these contentions, they prayed for a dismissal of the suit. 6. Defendants 7 to 13 filed separate written statements. They are the wife and children of late Kadir Pillai. They disputed the claim of lease urged in the plaint of the year 1116 M.E. The alleged entrustment of property by the co-owners for management and administration to Kadir Pillai and the claim of sharing of income were disputed. The first plaintiff had sold his rights over the property to Kadir Pillai on 21.4.1960. Thereafter Kadir Pillai became the absolute owner. It was pointed out by them that after the death of Kunju Marakkar the properties were jointly held by S.A. 136/1994. 6 the first plaintiff and Kadir Pillai only and the other sharers had no manner of rights over the properties. It was thereafter that the first plaintiff had executed the assignment deed in favour of Kadir Pillai. 49 cents was assigned to the seventh defendant by Kadir Pillai. A building has been put up in that property and defendants 7 to 13 are residing therein. They contended that even if anybody else had any manner of right over the property, that was lost by adverse possession and limitation. In O.S. 97 of 1971 it was found that the properties belonged to Kadir Pillai. On the basis of these contentions, they pointed that the plaintiffs are not entitled to any reliefs and sought for a dismissal of the suit. 7. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A15 from the side of the plaintiffs. The defendants had D.Ws. 1 and 2 examined and Exts. B1 to B24 marked. On an appreciation of the materials before it, the court below found that the S.A. 136/1994. 7 properties are partible and therefore passed a preliminary decree, which reads as follows: “In the result, a preliminary decree is passed allotting 1st plaintiff 6/14 share in plaint item No.1, 3rd plaintiff, 4th plaintiff, 5th plaintiff and 1st defendant each 1/14 share in item No.1 and defendant 7 to 13 together allotted 4/14 share in item No.1 over 3.850 cents of plaint item No.2 first plaintiff is allotted 4/14 share. 2nd plaintiff is allotted 2/14 share, 3rd plaintiff, 4th plaintiff, 5th plaintiff each 1/14 share and 1st defendant 3/14. Plaintiffs are entitled to get proportionate mesne profit. Plaintiffs are allowed to apply for passing a final decree within 3 months from this date where in a commissioner will be appointed to divide, demarcate the property by metes and bounds and allot the shares to parties in accordance with the preliminary decree. The Commissioner will also ascertain the mesne profits from the property. The quantum of mesne profits will be determined in the final decree. Suit is partly decreed without costs.” 8. Defendants 7 to 13 carried the matter in appeal as A.S.110 of 1987 and the aggrieved plaintiffs carried the S.A. 136/1994. 8 matter in appeal as A.S. 111 of 1987. The appellate court on an independent evaluation of the evidence in the case found the case set up by defendants 7 to 3 to be true and accordingly allowed their appeal. The other appeal was dismissed. Thus the properties became non-partible. 9. Aggrieved by the appellate court judgment and decree, the plaintiffs have come up in appeal. During the pendency of the appeal the fourth defendant died and since his legal heirs are already on the party array, the same was recorded. The 14th defendant also died and his legal heirs were brought on the party array as respondents 15 to 22. 10. In the appeal before lower court, while defendants 7 to 13 had attacked the trial court judgment, the appeal by the plaintiffs was against the rejection of the claim of partition of 10 cents in item No.2, wherein defendants 1 and 2 had obtained kudikidappu rights. The appellate court held that as regards item No.1, the claim of the plaintiffs have been barred by adverse possession and limitation. S.A. 136/1994. 9 11. The following substantial questions of law are seen raised in this Second Appeal: “A) Is the court below justified in entering findings without assigning reasons and discussing the facts evidence and the law on the points. Being fact finding court whether the court below can decide the dispute in such arbitrary manner. B) Whether Ext.B1 document takes away the rights of 1st plaintiff which he obtained as per Ext.A2 and A7. When there is no mention about Ext.A2in Ext.B1 document and when Ext.A7 is much after Ext.B1. C) Whether Ext.B1 will extinguish the co-ownership rights of other co-owners who are not parties to the same and whether Ext.B1 will give absolute right to Kadir Pillai. D) Whether the respondents 7 to 13, who claims title by release, can claim absolute right by adverse possession and ouster which was not claimed by their predecessor Kadir Pillai. E) Whether the plea of oral transfer which is not pleaded by respondents 7 to 13 in their written statement and in respect of which no S.A. 136/1994. 10 issue was framed before court below and no evidence was adduced can be agitated for the first time before the appellate court. F) When one of the co-owners transfers his rights over the co-ownership property can that affect and bind the rights of other co-owners. Whether such transfer can be ignored by the other co-owners in getting their shares. G) Whether a permission to erect homestead given by one of the co-owners over the joint property bind other co-owners and whether the other co-owners can ignore such actions in getting their share. H) Whether the patta obtained without making all the co-owners parties can bind them and whether that can be avoided by the co-owners who were not parties to the proceeding and who have not given permission to erect a homestead.” 12. Learned counsel appearing for the appellants raised three points for consideration, 1) the finding that the claim of the plaintiffs is lost by adverse possession and limitation is wrong, 2) property originally belonged to Kunjan Marakkar, who is the predecessor in interest of the plaintiffs S.A. 136/1994. 11 and defendants and on his death therefore the property devolved on his legal heirs, 3) purchase certificate obtained by defendants 1 and 2 are not binding on the plaintiffs. 13. Learned counsel pointed out that item Nos. 1 and 2 admittedly were acquired by Kunjan Marakker on lease. After the death of Kunjan Marakkar therefore naturally the legal heirs, who are the plaintiffs and defendant No.1 and Kadir Pillai, the predecessor in interest of defendants 7 to 13, succeed to the property. In fact Kunjan Marakkar acquired item Nos. 1 and 2, and 69 ½ cents in Sy. No. 651/2 and ie., 1 acre 16 cents in Sy. No.651/8A and 8B. There is nothing to show that after the death of Kunjan Marakkar, the properties were exclusively possessed and enjoyed by the first plaintiff and Kadir Pillai. The assignment deed said to have been executed by the first plaintiff in favour of Kadir Pillai can at best affect the rights of the first plaintiff and can have no value as regards the other plaintiffs are concerned. The court below was wrong in law in having accepted the plea of ouster put S.A. 136/1994. 12 forward by defendants 7 to 13. A co-owner in possession is deemed to be in possession on behalf of all the co-owners. Unless it is shown by clear, convincing and cogent evidence that the other co-sharers have been expressly excluded from sharing the properties and their title had been denied, a co- sharer cannot succeed on the plea of adverse possession and limitation. Then again the permission granted by Kadir Pillai to defendants 1 and 2 to occupy the land and put up building therein cannot bind the other co-owners. He is not competent to do so. Accordingly, it is contended that the decree of the lower appellate court below is bad in law. Learned counsel in support of his case relied on the following decisions: i) 2005(1) K.L.T. 864 ii) (2006) 7 SCC 570 iii) (2007) 6 SCC 59 iv) 2005 (4) K.L.T. 653 v) (1995) 2 SCC 543 vi) AIR 1981 SC 77 S.A. 136/1994. 13 14. Per contra, learned counsel appearing for the contesting respondents pointed out that the court below has addressed itself to the questions involved in the proper perspective and has come to the correct conclusion. The court below has found that after the death of Kunhi Marakkar, the first plaintiff and late Kadir Pillai came into possession of the suit properties independently and others had no right in the properties. They held the properties as their own. Later between them, 69 ½ cents was given to the first plaintiff and the other item of property, 1.16 acres was given to Kadir Pillai. Kadir Pillai independently acquired 13 ½ cents. It is true, according to learned counsel, that the first plaintiff has got release deed from other legal heirs of Kunhi Marakkar. But that is only a clever ploy adopted by the first plaintiff to deny the legitimate rights of Kadir Pillai over the properties given to him. Those persons who have executed release deed in favour of the first plaintiff infact have no manner of right over the properties. The recitals in the release deed itself will reveal this fact. Even the first S.A. 136/1994. 14 plaintiff in various litigations had clearly asserted that the properties belonged exclusively to him and late Kadir Pillai and that no other person person had any manner of right over the same. It comes with little grace from him now to say that others also have rights over the suit properties. It is clear that after having made his possession safe, the first plaintiff had instigated others, who never had any right in the property and who never assailed the rights exercised by the first plaintiff and late Kadir Pillai to file the present suit. It is clear that the intention of the first plaintiff is to make gain for himself. It is significant to notice that only the first plaintiff who has managed to secure to himself with 69 ½ cents has given evidence in the case. None of the other sharers have come forward to give evidence. It must be noticed that the suit was laid 32 years after the death of Kunjan Marakkar and also after the death of Kadir Pillai. The suit lacks bonafides. To constitute ouster of other co-sharers there need not be any belligerent or violent conduct on the part of the person in possession. It is sufficient to show that S.A. 136/1994. 15 the said co-sharer had treated the property as exclusively belonging to him and he had not shared any income with other co-sharers and that he has asserted the hostile title as against them. Such evidence is available in the case on hand and it was on that basis the court below non-suited the plaintiffs. Learned counsel therefore contended that no grounds are made out to interfere with the judgment and decree of the lower appellate court. 15. After hearing elaborately both sides, it is felt that there is much force in the contention raised by the learned counsel for the respondents in this appeal. The reasons follow. 16. It is not in dispute that the property originally belonged to Kunjan Marakkar. He held them on leasehold right. He died in 1949. Normally as per law, the leasehold right then devolve on the children of Kunju Marakkar. But according to defendants 7 to 13 after the death of Kunju Marakkar, the properties were exclusively possessed and enjoyed by the first plaintiff and Kadir Pillai. None of the S.A. 136/1994. 16 other legal heirs ever asserted any right over the suit items. Thereafter there was an understanding between the first plaintiff and Kadir Pillai, whereby 69 ½ cents was given to the first plaintiff and Kadir Pillai was given the other item of property. Thereafter Kadir Pillai released his rights over 69 ½ cents in favour of the first plaintiff. In turn the first plaintiff executed a deed in favour of Kadir Pillai releasing all his rights over the property set apart to Kadir Pillai. It was therefore contended by defendants 7 to 13 that Kadir Pillai ever since the release deed in favour of the first plaintiff had been enjoying the property asserting his rights in exclusion of all the co-sharers. 17. Another issue that is thrown up for consideration is regarding the competency of Kadir Pillai to give permission to defendants 1 and 2 to occupy the land for residing. They succeeded in getting kudikidappu rights over the property. Now the question is whether that is binding on the other co-owners and what exactly is the right of Kadir Pillai to grant permission. S.A. 136/1994. 17 18. As already noticed that this is an accepted case that the properties originally belonged to Kunju Marakkar. The case put forward by the plaintiffs is that consequent on the death of Kunji Marakkar, the leasehold rights devolved on all the legal heirs. As far as 69 ½ cents in Sy. No.651/2 is concerned, all sharers had relinquished their rights in favour of the first plaintiff and therefore he became the absolute owner thereof. Plaintiffs' case is that as far as the suit properties are concerned, they are entitled to a share and the first plaintiff asserts that he is entitled to 8/14 share. The contention of defendants 7 to 13 had already been adverted to. It is pointed out by them that as per Ext.A1 document, the first plaintiff obtained jenm right over the properties and the recital in the said document will clearly show that the first plaintiff had accepted the fact that after the death of Kunji Marakkar the suit properties, 69 ½ cents and 1.16 acres owned by the predecessor in interest of the plaintiffs taken were in the exclusive possession and enjoyment of the first plaintiff and Kadir Pillai. It is clear S.A. 136/1994. 18 from a reading of that document that no other legal heirs of Kunji Marakkar had any manner of right over the property. Thereafter by Ext.B1 dated 21.4.1960, the first plaintiff has assigned 1.16 acres of land in favour of Kadir Pillai. In turn, Kadir Pillai released rights over 69 ½ cents in favour of the first plaintiff. It was thereafter that Exts. A2, A5, A6, At and A8 that the first plaintiff had obtained to get release deeds from other sharers in respect of 69 ½ cents. The defendants pointed out that the mere fact that first plaintiff has cleverly chosen to obtain release deed from others does not lead to the conclusion that the suit properties were held in common. 19. While things stood thus, one Abdul Rahiman filed O.S. 97 of 1971. Property involved was plaint item No.2. Late Kadir Pillai and defendants 1 and 2 were parties to the said suit. In the said suit, Kadir Pillai filed a written statement controverting the rights claimed by Abdul Rahiman. In his written statement, he traced his title through Kunju Marakkar and took the stand that he was in S.A. 136/1994. 19 possession of the property after the death of Kunju Marakkar as agreed to by all the legal heirs. The suit was dismissed and the dismissal was confirmed in appeal. Written statement of Kadir Pillai in the said suit is Ext.B4 and Ext.B11 is the judgment in OS. 97 of 1971.