IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 SA.No. 605 of 1995(E) AGAINST THE JUDGMENT AND DECREE IN AS.NO.69/1992 ON THE FILE OF THE DISTRICT COURT, KOLLAM DATED 4.2.1995 CONFIRMING THE JUDGMENT AND DECREE IN O.S.NO.984/1985 OF THE ADDL.MUNSIFF'S COURT, KOLLAM. APPELLANTS: APPELLANTS: DEFENDANTS 1 TO 6: 1. KURUMBA, W/O.AYYAN, AGED 70 YEARS, RESIDING AT VAYALIL VEEDU, AKKOLILCHERRY, ERAVIPURAM VILLAGE, KOLLAM. (DIED RECORDED) 2. AYYAN KOCHUKUNJU, AGED 50 YEARS, -DO- -DO- 3. AYYAN LEKSHMANAN, AGED 46 YEARS, -DO- -DO- 4. KURUMBA SUMATHY, AGED 42 YEARS, -DO- -DO- 5. AYYAN JANARDHANAN, AGED 36 YEARS, -DO- -DO- 6. AYYAN GOPI, AGED 33 YEARS, -DO- -DO- IT IS RECORDED THAT APPELLANTS 2 TO 6 ARE LEGAL REPRESENTATIVES OF THE DECEASED FIRST APPELLANT AS PER ORDER DATED 7/12/2007 ON I.A.NO.2190/2007. BY ADV. SRI.ANCHAL C.VIJAYAN SRI.P.K.RAVI KRISHNAN RESPONDENT : RESPONDENT: PLAINTIFF: KARUMBAN SANKARAN, AGED ABOUT 48 YEARS, KOVILCHIRATHODIYIL VEEDU, THEKKUMKARA CHERRY, MAYYANADU VILLAGE, KOLLAM DISTRICT. THIS SECOND APPEAL HAVING COME UP FOR HEARING ON 19/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT TODAY WHEN THE SECOND APPEAL IS TAKEN UP FOR HEARING, THERE IS NO REPRESENTATION FOR THE APPELLANTS. THE APPELLANTS ARE ALSO NOT PRESENT. THE SECOND APPEAL IS, THEREFORE, DISMISSED FOR DEFAULT. 19/9/2008 SD/- K.T.SANKARAN, JUDGE C.M.P.NO.1521/1995 IN S.A.NO.605/1995 DISMISSED 19/9/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ P.N.RAVINDRAN, J. ====================================== S.A.No.605 of 1995 ====================================== Dated this the 19th day of January 2009 JUDGMENT The defendants in O.S.No.984 of 1995 on the file of the Court of the Munsiff of Kollam are the appellants in this Second Appeal. The respondent is the plaintiff therein. The suit instituted by the respondent for partition and separate possession of his 1/4 share in the suit properties was decreed by the trial court. The defendants challenged the decree and judgment passed by the trial court in A.S.No.69 of 1992 on the file of the Court of the District Judge of Kollam. The lower appellate court concurred with the trial court and dismissed the appeal. Hence this Second Appeal at the instance of the defendants. 2. The suit property is a parcel of land, 34 cents in extent, situated in Sy.No.3878 of Eravipuram Village, Kollam Taluk, Kollam District. It belonged jointly two sisters, late Kurumba and late Kochikka who obtained title to and possession over the said parcel of land as per Ext.A1 assignment deed dated 3.4.1929. Late Kurumba and late Kochikka had two brothers, namely late Karumban and late Ayyan and a sister by name late Kali. The plaintiff is the son of late Karumban and the defendants are the wife and children of late Ayyan. On the death of Kurumba who died issueless, her rights devolved on her sisters late Kochikka and late Kali and her brothers late Karumban and late Ayyan. On S.A.No.605 of 1995 2 the death of late Kali, a spinster, her rights devolved on her sister late Kochikka and her brothers late Karumban and late Ayyan. After Karumban died, late Kochikka executed Ext.A2 sale deed dated 18.7.1950 whereby she sold 19 cents out of the suit property to her brother late Ayyan. The suit for partition was filed contending that late Kochikka had no right to assign away anything in excess of her half share in the suit property and that as the legal heir of late Karumban, the plaintiff is entitled to 1/4 share in the suit property. The defendants resisted the suit contending inter alia that the plaintiff is not the son of late Karumban and that his right, if any has been lost by adverse possession and limitation. The trial court on an analysis of the evidence oral and documentary available in the case held that the plaintiff is the son of late Karumban and is entitled to 1/4 share in the suit property. The contention raised by the defendants that the right, if any of the plaintiff has been lost by adverse possession and limitation was also repelled. The suit was accordingly decreed and a preliminary decree for partition was passed. The appeal filed by the defendants from the preliminary decree was dismissed by the lower appellate court. 3. Smt.Mini.S., the learned counsel appearing for the appellants contended that the findings of the courts below are not sustainable in law and are liable to be set aside. The learned S.A.No.605 of 1995 3 counsel further contended that in any view of the case, the finding of the courts below that the plaintiff is entitled to 1/4 share in the suit property, cannot be sustained and that even if his contentions are accepted, he can claim only 1/3 share in the half right that late Kurumba had over the suit property. 4. The defendants resisted the plaintiff's claim for partition contending that he is not the son of late Karumban and that his right if any has been lost by adverse possession and limitation. The trial court and the lower appellate court have on an analysis of the evidence, oral and documentary available in the case held that the plaintiff is the son of late Karumban and that as the only legal heir of late Karumban he is entitled to a share in the suit property. The courts below have also repelled the plea of the adverse possession and limitation, set out by the defendants. The Apex Court has in Thiagarajan v Venugopalaswamy B.Koil (2004)5 SCC 762, Commissioner.HRCE V P.Shanmgama 2005 (9) SCC 232 and Madhavan Nair v Bhaskar Pillai (2005) 10 SCC 553) held that this Court cannot in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure, sit in appeal over the findings of the courts below, re-appreciate the evidence and arrive at its conclusion even if another view is possible. In that view of the matter, the finding of the courts below that the plaintiff is the son of late Karumban entitled to a share in the suit property and S.A.No.605 of 1995 4 the further finding of the courts below that the right of the plaintiff has not been lost by adverse possession and limitation cannot be interfered with. 5. However, I notice that the courts below have awarded to the plaintiff 1/4 share in the suit property. The suit property admittedly belonged jointly to late Kochikka and late Kurumba. Late Kochikka admittedly had half right over the suit properties and she had assigned away that half right to late Ayyan, the predecessor in interest of the defendants as per Ext.A2 assignment deed dated 18.7.1950. The recitals in Ext.B2 disclose that it was executed after late Kurumba to whom the other half right belonged passed away. On the death of Kurumba, her half right devolved on late Kochikka, late Karumban (the plaintiff's father) and late Ayyan, the predecessor-in-interest of the defendants. Therefore the plaintiff's father late Karumban was entitled only to a 1/3rd share in the half right of Kurumba. The trial court has as a matter of fact adverted to this aspect and had also computed the extent of land that will devolve on the plaintiff as the legal heir of late Karumban. In paragraph-6 of the judgment, the trial court has held that the plaintiff can claim only right over 7.48 cents of land. However in the decretal portion, ignoring this finding, the trial court held that the plaintiff is entitled to 1/4 share in the suit property. The lower appellate S.A.No.605 of 1995 5 court has also not taken note of this aspect of the matter, when it affirmed the preliminary decree passed by the trial court. In my opinion, as the legal heir of latae Karumban, the plaintiff can claim only 1/6 share in the suit property. The decrees and judgments passed by the courts below therefore, require to be modified to the above extent. In the result, I allow this Second Appeal in part and hold that the plaintiff is entitled only to 1/6 share in the suit property. The decree passed by the trial court shall stand modified accordingly. In all other respects, the decree and judgment passed by the trial court shall stand. The Second Appeal is allowed as above. No costs. P.N.RAVINDRAN, JUDGE css/