IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 RSA.No. 255 of 2008 --------------------------------- AS.102/2006 of SPL. COURT (NDPS ACT CASES), THODUPUZHA OS.247/2005 of MUNI-MAGI.COURT,THODUPUZHA .................... APPELLANT/APPELLANT/DEFENDANT: JOY, S/O.THOMMAN, AGED 51 YEARS, VADAKKEKARA HOUSE, KARIMKUNNAM KARA, KARIMKUNNAM P.O., KARIMKUNNAM VILLAGE. BY ADV. SRI.M.NARENDRA KUMAR RESPONDENTS/RESPONDENTS/PLAINTIFFS: 1. CHACKO S/O THOMAN, AGED 58 YEARS, VADAKKEKARA HOUSE, PURAPPUZHA VILLAGE, PURAPPUZHA P.O. 2. MATHAI S/O THOMMAN, AGED 53 YEARS, RESIDING AT VADAKKEKARA HOUSE, KARIMKUNNAM KARA, KARIMKUNNAM VILLAGE, KARIMKUNNAM P.O. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No.255 of 2008 --------------------------- JUDGMENT The defendant, who lost his contentions in both the court below, is the appellant. The plaintiffs filed suit for partition, inter alia, on the allegation that themselves and the appellant/ defendant are the sons of late Thomman Chacko, who had two daughters as well by name Mary and Eliamma. Eliamma was given in marriage and was residing with her husband and children. The other daughter Mary was divorced and without any issues. She was residing with her parents and after their death, she was living with the appellant/defendant in the family house. 2. The scheduled properties along with other properties originally belonged to Thomman Chacko, who settled the properties under Exhibit A1 in favour of the plaintiffs, the appellant/defendant and Mary, the divorced daughter. The property RSA 255/08 2 allotted to Mary is the 'D' schedule property in Exhibit A1 settlement deed. Even in the settlement deed, father Thomman had made a stipulation that after the death of Mary intestate and issue less, the property of fifty cents alloted to Mary would devolve upon the plaintiffs and the appellant/ defendant equally. According to the plaintiffs, Mary died on 17.12.2004 intestate and issue less and it is on that ground that they prayed for partition of the said property, which is scheduled to the plaint and allotment of one third share each in the scheduled properties to plaintiffs 1 and 2. 3. The claim for partition was resisted by the appellant/defendant, who set up a contention to the effect that fifty cents of property gifted to Mary was not separately demarcated and he took possession of the said fifty cents allotted to Mary along with the property allotted to his share and he planted rubber trees therein and he was taking the income to the knowledge of the plaintiffs as RSA 255/08 3 well; that despite settlement deed of 1973, Mary did not take possession of the 'D' schedule item of property, which is the scheduled property and it continues in his possession since 1973. He has perfected his title to the scheduled property by adverse possession and therefore, the scheduled property is not partible. 4. The trial court, considering the evidence adduced, which consisted of oral evidence of PWs 1 and 2 and DWs 1 and 2 and documentary evidence of Exhibits A1, A2, B1 to B8 and C1, repelled the contentions of the appellant/defendant and passed a preliminary decree for partition of the scheduled property into three equal shares and for allotment of one such share each to the plaintiffs and the appellant/defendant. The appellant/defendant challenged the decree of the trial court by filing A.S.No.102/06 before the first appellate court and the appeal was also dismissed. Hence, this regular second appeal. RSA 255/08 4 5. Heard the counsel for the appellant. 6. It is the case of the appellant that he was maintaining his sister Mary and was paying tax for the property in the joint names of Mary and himself and a joint thandaper account was opened in the names of himself and Mary in the Village Office and that these aspects would establish that he was in exclusive possession of the scheduled property to the exclusion of all others, inter alia, the plaintiffs. 7. It is worthy to note that Mary died intestate and issue less only in the year 2004. Then only the question of devolution arises. If Mary was being maintained and looked after by the appellant himself and he was taking yield from the property on behalf of Mary, there was no reason for the plaintiffs to think that the appellant was asserting his rights adverse to the real owner or that there is any assertion of hostile possession. Mere possession, however long, is not sufficient to RSA 255/08 5 render possession hostile to the real owner. Inasmuch as Mary died only in the year 2004, the question of devolution of her right arises only then. The suit is filed by the plaintiffs in the year 2005 and therefore, no question of adverse possession arises at all. The contentions raised by the appellant are baseless and devoid of any merit and do not deserve consideration by this Court in this second appeal. There is no question of law and much less, any substantial question of law arising for consideration. This Regular Second Appeal is, hence, dismissed in limine, refusing admission. 21st May, 2008 (K.P.Balachandran, Judge) tkv