IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 SA.No. 772 of 1997(A) --------------------- AS.199/1994 of SUB COURT, PALA OS.98/1992 of MUNSIFF COURT, PALA .................... APPELLANT(S)/APPELLANTS & ADDL.13TH DEFENDANT/DEFENDANTS 1, 2, 4 TO 6 & 8 AND 7TH DEFENDANT: -------------- 1. MEENAKSHIAMMA, D/O.PARVATHIAMMA, PENNARA HOUSE, KADAPATTOOR, MEENACHIL. 2. KARTHIYANIAMMA, -DO- -DO- (DIED) 3. MURALEEDHARAN, S/O.SANKARAN NAIR, PENNARA HOUSE, KADAPATTOOR, MEENACHIL VILLAGE. 4. MOHANAN, -DO- -DO- 5. PADMAKUMARI, D/O.MEENAKSHIAMMA, -DO- -DO- 6. GEETHAKUMARI, -DO- -DO- -DO- 7. INDIRA, D/O.L;ATE KARTHIYANIAMMA, KAZOOR VEEDU, KOZHICHAL P.O., PALLATHUVAYAL. 8. SHEELAKUMARI @ REMA, D/O.MEENAKSHIAMMA, -DO- -DO- BY ADV. SRI.SHAJI THOMAS PORKKATTIL RESPONDENT(S)/RESPONDENTS & 12TH RESPONDENT/PLAINTIFFS & 3RD DEFENDANT: --------------- 1. RAMAKRISHNAN NAIR, S/O.VELAYUDHAN NAIR, CHAMAKKALAYIL, VELLAPPADU KARA, LALAM VILLAGE. 2. SANTHAKUMARI D/O.BHAVANIAMMA, -DO- -DO- 3. SARADAS D/O.-DO- -DO- 4. RAVEENDRANATH, S/O.RAMAKRISHNAN NAIR, -DO- -DO- SA NO. 772/1997 2 5. RAJENDRAN, -DO- -DO- 6. GOPALAKRISHNAN NAIR, -DO- -DO- 7. VENUGOPALAN, -DO- -DO- 8. KUMARI RATHI, D/O.BHAVANIAMMA, -DO- -DO- 9. GEETHA D.NAIR, -DO- -DO- 10. LEKHA D.NAIR, -DO- -DO- 11. ULLASMON, S/O.RAMAKRISHNAN NAIR, -DO- -DO- 12. RAMAKRISHNAN NAIR, S/O.VELAYUDHAN NAIR, PENNARA HOUSE, PALA, MEENACHIL VILLAGE. ADV. SRI.RAJEEV V.KURUP THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.772 of 1997 -------------------------------------- Dated this the 13th day of February, 2009. JUDGMENT The judgment and final decree for partition passed by the learned Munsiff as confirmed by the first appellate court are under challenge in this Second Appeal at the instance of defendants 1, 2, 4 to 6 and 8. Parties are referred as plaintiffs and defendants as in the trial court for convenience. 2. The substantial question of law arising for a decision is whether the courts below substantially erred in passing a preliminary decree without conducting trial and proving the document in a case where the defendants disputed the plaint averments in the written statement. 3. Short facts necessary for a decision in this appeal are - Bhavaniamma, wife of the first plaintiff and mother of plaintiffs 2 to 11 died on 24.7.1991. Defendants 1 and 2 are the sisters and 3rd defendant is the brother of said Bhavaniamma. Defendants 4 to 8 are the children of first defendant. Plaintiffs claimed that as per partition deed No.1366 of 1957 the family properties were subjected to partition among Bhavaniamma and defendants 1 to 3, and the F schedule therein (47 cents) was allotted to the said Bhavaniamma. There is a house in the said F schedule. The southern varam (lean-to) of that house was exclusively allotted to Bhavaniamma while in rest of the building SA No.772/1997 2 Bhavaniamma and defendants 1 to 3 were given equal rights. Now defendants 1 to 3 are residing in that building. On the above allegation, plaintiffs wanted partition and recovery of possession. Defendants 3 and 7 did not contest. Other defendants contended that the building sought to be partitioned and situated in the F schedule above referred is separately scheduled in the partition deed with the intention of not partitioning it. Plaintiffs have no right to get it partitioned and that Bhavaniamma had shifted her residence from that building in the year 1959. From then onwards Bhavaniamma was not permitted to reside in the said building. Defendants 1 and 2 are residing in the said building. Thus, by adverse possession and law of limitation defendants 1 and 2 have perfected their title over the entire building. Before the learned Munsiff, neither side adduced evidence. A copy of the partition deed was produced but not marked in evidence. But on admitted facts, learned Munsiff found that the building scheduled in the plaint (situated in the F schedule of the partition deed) is liable to be partitioned in the way claimed by the plaintiffs. The plea of adverse possession and limitation raised by the contesting defendants was found against. Leanred Munsiff also found that in the nature of the building it is not capable of physical partition and therefore directed its sale. Provision was made that in case defendants bid the building in the auction, they had to remove the same after paying one fourth share in the sale proceeds due to the plaintiffs. Preliminary decree for partition was passed accordingly. Contesting defendants took up the matter in appeal. A copy of the partition deed was marked as Ext.A1 in the appeal. First appellate court found that the property is partiable SA No.772/1997 3 and that the recitals in Ext.A1 do not stand against the right of the parties to get partition. Appeal was dismissed. It is contended by the learned counsel that the judgment and decree passed by the courts below cannot be sustained. It is also contended that on the facts, the plea of adverse possession ought to have been accepted. 4. Going through the judgments under challenge and on hearing learned counsel, I do not find any serious challenge to the case of the plaintiffs that the 47 cents described in F schedule of Ext.A1 was allotted to late Bhavaniamma. It is also not in dispute that the building now sought to be partitioned is situated in the said 47 cents. Bhavaniamma was given exclusive right over the southern lean-to of the house and equal right with defendants 1 to 3 over the rest of the building. If that be so, the building is partiable as found by the courts below. 5. So far as the plea of adverse possession and limitation is concerned it is true that contesting defendants contended that Bhavaniamma was not occupying the building right from 1959 onwards but there is no evidence in that line. No attempt was made by the contesting defendants to substantiate that contention. When adverse possession is pleaded as against a co-owner, there must be evidence of ouster. Such evidence is not available in this case. I do not find any reason to interfere with the concurrent findings entered by the courts below and the decree for partition. The interest of the contesting defendants has been protected by the learned Munsiff by providing for auction of SA No.772/1997 4 the building and option is given to the contesting defendants to purchase the building in auction. No other point is raised for decision. Second Appeal is dismissed. Cost shall come out of the estate. C.M.P.No.1987 of 1997 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.772/1997 5 Thomas P.Joseph, J. S.A.No.772 of 1997 Judgment 13th February, 2009.