IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 AS.No. 397 of 1997 & CROSS OBJECTION -------------------------------------------------------------- OS.438/1988 of PRL.SUB COURT,THRISSUR .................... APPELLANT(S): DEFENDANT NO. 1 IN OS. ---------------------------------------------------------------- JACOB, S/O. OOKKAN ANTONY, KURIMBILAVU VILLAGE AND DESOM, THRISSUR TALUK, THRISSUR DISTRICT. BY ADVS. DR.SEBASTIAN CHAMPAPPILLY, MR.M.T.AJITH. RESPONDENT(S): PLAINTIFFS IN OS: -------------------------------------------------------- *1. INASU, S/O.PERUMBILLY LONAPPAN, PERUMBILLISSERY DESOM, CHOWOOR VILLAGE, THRISSUR TALUK. ( D I E D) – LR'S ARE 2 TO 5 WHO ARE ALREADY IN PARTY ARRAY. 2. PEEYOOS, S/O. 1ST RESPONDENT, PERUMBILLISSERY DESOM, CHOWOOR VILLAGE, THRISSUR TALUK. 3. JOSEPH, S/O.1ST RESPONDENT, PERUMBILLISSERY DESOM, CHOWOOR VILLAGE, THRISSUR TALUK. 4. SHERLY, D/O.1ST RESPONDENT, PERUMBILLISSERY DESOM, CHOWOOR VILLAGE, THRISSUR TALUK. Kss ..2/- ..2... A.S.NO.397/1997 5. ANTU, S/O.1ST RESPONDENT, PERUMBILLISSERY DESOM, CHOWOOR VILLAGE, THRISSUR TALUK. *IT IS RECORDED THAT 1ST RESPONDENT DIED AND THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT ARE RESPONDENTS 2 TO 5 WHO ARE ALREADY IN THE PARTY ARRAY VIDE ORDER DTD.22/02/2005 IN MEMO C.F.NO.1716/05. R1,R2,R4 & R5 BY ADV. MR.N.P.SAMUEL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/02/2009 ALONG WITH CROSS OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.Ravindran, J. =================== A.S. No.397 of 1997 & Cross Objections ================================= Dated this the 4nd day of February, 2009. JUDGMENT The first defendant in O.S.No.438 of 1988 on the file of the Court of the Subordinate Judge of Thrissur is the appellant in this appeal. The respondents are the plaintiffs therein. The second defendant w ho is the mother of the appellant passed away on 1.1.1997 after the suit was decreed and before this appeal was filed. The appellant is her only legal heir. After this appeal was filed, the first respondent/first plaintiff passed away and respondents 2 to 5 have been recorded as his legal heirs. 2. The respondents instituted the suit for partition of three items of immovable properties described in A schedule to the plaint, the movables described in B schedule to the plaint and the monies lying in the fixed deposits described in C schedule to the plaint into three equal shares and allotment of one such share to them. According to the plaintiffs, the plaint schedule properties belonged to late Antony, husband of the second defendant (late Rosa) and father of the first defendant and late Kochannam. The plaintiffs are husband and children of late Kochannam Late Antony passed away on 11.6.1973 and his daughter Kochannam passed away on 8.12.1986. They contended that as the legal heirs of late Antony, they are entitled to 1/3rd share in the AS 397/97 -: 2 :- suit properties, the first defendant is entitled to 1/3rd share and the second defendant is entitled to the remaining 1/3rd share. The suit was preceded by Ext.A1 suit notice dated 11.5.1988 to which the first defendant sent Ext.A2 reply dated 19.5.1988 wherein he took the stand that as the lawyer has not issued notice in his letter head, he is not in a position to give a reply. He also called upon the lawyer who issued Ext.A1 notice to furnish his correct postal address and the register number on the rolls. 3. The first defendant resisted the suit contending inter alia that he has perfected title to the plaint A schedule properties by adverse possession and limitation even while his father was alive, that he had constructed a house in item No.1 of plaint A schedule with his own funds, that all the movables described in B schedule to the plaint belong to him and that late Antony had no deposits in his name at the time of his death. In the court below, the first plaintiff was examined as PW1 and Exts.A1 and A2 were marked on the side of the plaintiffs. The first defendant examined himself as DW1. The trial court on an analysis of the evidence oral and documentary available in the case held that the immovable properties described in plaint A schedule are available for partition. It was held that the plaintiffs have not succeeded in proving that the movables described in B schedule to the plaint and the deposits described in C schedule are available for partition. A preliminary decree for partition was passed directing division of the immovable properties AS 397/97 -: 3 :- described in A schedule to the plaint into three equal shares and allotment of one such share to the plaintiffs together with future profits to be quantified in the final decree proceedings. 4. The first defendant has filed this appeal challenging the finding of the court below that the immovable properties described in A schedule to the plaint are available for partition. The respondents plaintiffs have filed a memorandum of Cross Objections contending that the court below ought to have passed a preliminary decree for partition of the fixed deposits described in plaint C schedule also. The learned counsel appearing for the appellant contended that the finding of the court below that the first defendant has not proved that he has perfected title to the movable properties by adverse possession and limitation is not sustainable in the light of the evidence on record. Per contra, the learned counsel appearing for the respondents contended that the plea of adverse possession and limitation set up by the first defendant has not been proved and that the finding of the court below does not merit interference. He also submitted that to prove that the deposits described in plaint C schedule belong to late Antony, the first plaintiff had filed I.A.No.3196 of 1991 to issue summons to the Branch Manager, Canara Bank, Cherpu Branch and the Branch Manager, Catholic Syrian Bank, Chirakkal Branch to deposit the amounts lying in the deposits made by late Antony in the said banks. The learned counsel also submitted that on receipt of summons, the Branch Manager of the Canara Bank, Cherpu AS 397/97 -: 4 :- Branch had filed a statement in the court below to the effect that late Antony had deposited the sum of Rs.16,200/- in small savings deposit as per deposit receipt No.2721 and another sum of Rs.10,000/- as fixed deposit as per fixed deposit receipt No.506/1972 and that the value of the deposit as on that day was Rs.12,000/-. He also submitted that the Branch Manager, Catholic Syrian Bank had on 15.1.1992 deposited in the court below the sum of Rs.24,028/- representing the amounts lying in the fixed deposit made by late Antony. The learned counsel for the respondents contended that the court below therefore ought to have passed a preliminary decree directing division of the said sum of Rs.52,228/- into three equal shares and allotment of one such share to the plaintiffs. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The suit for partition of the immovable properties belonging to late Antony is resisted by the appellant on the short ground that he had perfected title to the properties by adverse possession and limitation even while his father was alive. The suit was preceded by Ext.A1 notice. The first defendant had admittedly received the suit notice and sent Ext.A2 letter dated 19.5.1988 wherein he feigned ignorance of the contents of the notice and declined to give a reply on the ground that the lawyer notice is not issued on the letter head of the lawyer and that the register number of the lawyer is not disclosed. The first defendant did not in Ext.A2 letter AS 397/97 -: 5 :- sent by him on receipt of Ext.A1 notice, wherein the plaintiffs had demanded partition of the suit properties, set up a plea of adverse possession and limitation. In the written statement filed by him, the first defendant contended that he had perfected title to the suit properties by adverse possession and limitation even while his father was alive. When examined as DW1, the first defendant deposed that his father had no right over the properties when he passed away. He has not stated when examined as DW1 that he had perfected title by adverse possession and limitation. In fact, when examined as DW1 he has not even deposed that he has perfected title to the suit property by adverse possession and limitation. All that he has stated when examined as DW1 was that his father had no right over the properties at the time of his death. It is not in dispute that the immovable properties described in plaint A schedule were acquired by late Antony. There is no material on record to prove that the first defendant was holding the property to the exclusion of others. As noticed earlier, the first defendant when examined as DW1 has not even spoken to the fact that he was holding the property adverse to the interests of his father. The finding of the court below that the first defendant has not succeeded in proving that he has perfected title to the immovable properties described in plaint A schedule by adverse possession and limitation does not therefore merit interference. I accordingly hold that there is no merit in this appeal and that it is liable to be dismissed. AS 397/97 -: 6 :- 6. I shall now consider whether the plaintiffs have proved that the deposits described in plaint C schedule are available for partition. Though in the memorandum of Cross Objections the plaintiffs have stated that on receipt of the summons issued by the court below in I.A.No.3196 of 1991, the Branch Manager, Canara Bank, Cherp Branch filed a statement to the effect that the sum of Rs.28,200/- was lying in fixed deposit in the name of late Antony and that the Branch Manager, Catholic Syrian Bank, Chirakkal Branch had on 15.1.1992 deposited the amount of Rs.24,028 in the court below, on going through the records, I do not find any such deposit having been made or statement filed. In the absence of any cogent evidence, the relief prayed for in the Cross Objections cannot be granted. For the reasons stated above, I hold that there is no merit in the appeal and the Cross Objections. They are accordingly dismissed. No costs. P.N.Ravindran, Judge. ess 18/2