IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 SA.No. 614 of 1998(F) -------------------------- AS.203/1990 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.383/1987 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S):1ST RESPONDENT/PLAINTIFF ----------------------------------------------------- CHELLAMMA KAMALAMMA, D/O.CHELLAMMA, RESIDING AT PUTHUKUNNU PUTHEN VEEDU, MELULIYAZHATHURA MURI, ULIYAZHATHURA VILLAGE. BY ADVS. SRI.R.S.KALKURA SRI.P.C.HARIDAS RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------- 1. MARIA CHELLAMMA(DECEASED), MUKKUMKARA PUTHENVEEDU, KARAPUZHA, ANAD MURI, PALOD VILLAGE. 2. CHELLAMMA JOICE, M.K.P. HOUSE, ELAVATTOM FROM MEKKUMKARA PUTHEN VEEDU. 3. G.GEORGE YOHANNAN, MEKKUMKARA PUTHENVEEDU, KARAPUZHA, ANAD MURI, PALOD VILLAGE. 4. CHELLAMMA NJANASUNDARI,OLIPPIL VEEDU, KUNNUMPURAM, KURUPUZHA. 5. C. RETNABAI, MELEVEEDU, POONTHOTTATHU ARAMADA VILLAGE,THIRUVANANTHAPURAM. 6. GOVINDAN THANKAPPAN, MEKKUMKARA PUTHENVEEDU, KURUPUZHA, ANAD MURI, PALODE VILLAGE. 7. CHELLAN, MEKKUMKARA PUTHENVEEDU, KURUMPUZHA, ANAD MURI, PALODE VILLAGE. 8. CHELLAMMA THANKAMMA, OORAMKUZHI PUTHEN VEEDU OF KURUMPUZHA, ANAD MURI, PALODE VILLAGE FROM MEKKUMKARA PUTHEN VEEDU. R3 & R6 BY ADV. SRI.P.GOPALAKRISHNAN NAIR R7 BY ADV. SRI.L.MOHANAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.1678/1998 IN S.A. NO.614/1998 DISMISSED 07/04/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs P.BHAVADASAN, J. ---------------------------- S.A.No. 614 of 1998 --------------------------------- Dated this the 7th day of April, 2011 JUDGMENT The plaintiff in O.S.No.383/1987 before the Munsiff's Court, Nedumangad is the appellant before this Court. 2. The suit was one for partition of three items of properties shown as plaint A, B and C schedule properties. A schedule property has an extent of 1 acre 7 cents, B schedule property 29 cents and C schedule 4 acre 18 cents. The claim put forward by the plaintiff was that the property originally belonged to the father of the parties namely Kochan George who died in 1968. Consequent to the death of Kochan George, plaintiff and defendants inherited the estate left behind by Kochan George. On the basis of these allegations, the suit was laid claiming 1/9 share. 3. The defendants 2, 4, 5 and 8 supported the plaintiff. First and 7th defendants had filed a joint written statement contesting the suit. 4. The contesting defendants pointed out that the suit itself was not maintainable and was barred by limitation. Since the plaintiff and defendants 2, 4 and 5 were given in marriage after paying Shridhnan they had no subsisting right over the property left behind by Kochan George. It is also contended on their behalf that 4.5 acres of land S.A.No. 614 of 1998 2 admittedly belonged exclusively to defendants 3, 6 and 7 since they have obtained a purchase certificate in respect of that property. Thereafter, the 7th defendant had instituted O.S.No.199/1984 for partition and that suit was decreed and preliminary decree was passed. It was therefore, contended that not only that the plaintiff and defendants 2, 4, 5 and 8 had no right over the property and even if they had any manner of right it was lost by adverse possession and limitation. 5. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 from the side of the plaintiff. The defendants examined as DWs 1 to 3 and had Exts. B1 to B4 were marked. 6. The trial court found that all properties are partible and passed a preliminary decree as follows:- That it is hereby declared that the plaintiff and the defendants 2 and 4 are entitled to 1/12th share each in the plaint schedule properties and they are allowed separate possession of their share on a division of the schedule properties by metes and bounds; that they are directed to file an application to make this decree final, through the issue of a commission on or before the expiry of two months from today.; S.A.No. 614 of 1998 3 that in the circumstances of the case, the parties are directed to suffer their costs. 7. Disappointed defendants 3 and 6 carried the matter in appeal as A.S.203/1990 before the District Court, Thiruvananthapuram. The lower appellate court while confirming the partition regarding A and B schedule properties set aside the preliminary decree passed as against the C schedule property and held that rights of the plaintiff and other supporting defendants had been lost by adverse possession and limitation. Accordingly, modified decree was passed, which reads as follows: “In the result, the preliminary decree passed by the lower court is modified in so far as items A and B of plaint scheduled properties and the plaintiff and defendants 2 and 4 are allotted 69/504 shares each and 8th defendant 21/504 shares (out of the share of deceased first defendant) in plaint schedule items A and B excluding 50 cents in plaint schedule item No.A assigned to 7th defendant as per Exhibit B1 sale deed. The preliminary decree in so far as plaint C schedule property is concerned is set aside. All other directions in the preliminary decree passed by the lower court will stand. The appeal is allowed as above. Cross objection filed by first respondent-plaintiff is dismissed. Cross objection filed by 6th respondent(7th respondent) is allowed as above. No order as to costs in this court.” S.A.No. 614 of 1998 4 8. Notice is seen issued on the following substantial questions of law: 1. Is the court below right in holding that the defendants 3, 6 and 7 have perfected title over plaint C schedule property by adverse possession and prescription. 2. Have the defendants 3, 6 and 7 acquired exclusive right and title over plaint C schedule properties by virtue of Exhibit B3 Certificate, 3. Are not defendant 3, 6 and 7 holding Exhibit B1 patta for and on behalf of the legal heirs of deceased Kochan George as trustees, 4. Was the court below right in concluding that female heirs of Kochan George namely daughters had lost their right over plaint schedule property by virtue of their having obtained streedhanan and confirm the judgment and decree of the Principal Munsiff's Court dated 31.08.1993 by virtue of the decision reported in 1986-KLT 528 especially when the Travancore Cochin Christian Succession Act 1102 stood abrogated. 9. The learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in reversing the decree in respect of C schedule item having an extent of 4.18 acres. After having found that the purchase certificate does not enure to the benefit of the defendants 3, 6 and 7 only, the lower appellate court was not justified in coming to the conclusion that the right of the plaintiff and supporting defendants had been lost by adverse S.A.No. 614 of 1998 5 possession and limitation. The reasons given have no support in law. 10. It is well settled that in order to establish ouster of a co- owners, a high decree of proof is required. No such evidence is available in the case on hand and the lower appellate court ought not to have interfered with the preliminary decree passed by the trial court in respect of C schedule property also. 11. The learned counsel appearing for the contesting respondents pointed out that one cannot omit to note that plaintiff and similarly situate person did seek to get themselves to impleaded in the proceedings before the Land Tribunal, which was rejected. They did not challenge that order and that has become final. That is clear indication of the fact that their rights were not recognised the Land Tribunal and it was thereafter purchase certificate was issued in favour of defendants 3, 6 and 7. It is also pointed out by the learned counsel after the death of Kochan George 1968, it is only in 1987 that for the first time the claim is raised regarding the property. Even assuming that the plaint A and B schedule items are partible, the plaint C schedule stands on a different footing. The Land Tribunal has issued purchase certificate in favour of D3, D6 and D7 finding that they are entitled to the property. It is also pointed out that one S.A.No. 614 of 1998 6 cannot brush aside the fact that D7 had instituted a suit for partition and a preliminary decree had been passed in the said suit. Attention was also drawn to the evidence of PW1, where it is mentioned by her that she did ask for share one year after the death of father, but she was not given her share. If that be so, it is clear indication that her right to property had been rejected by the contesting respondents long ago and so the lower appellate court was right in reaching a conclusion that the right if any of the plaintiff and other supporting defendants over C schedule is lost by adverse possession and limitation. 12. The plea of adverse possession and limitation in this case one has to notice is against the co-owners. The law regarding ouster of co-owners is well settled. In the decision reported in (1980 (4) SCC 396) Karbalai Begum v. Mohd. Sayeed and another it was held as follows: “Even if no share was given to the plaintiff by the defendants, as the defendants were co-sharers, unless a clear ouster was pleaded or proved the possession of the defendants as co-sharers would be deemed in law to be in possession of the plaintiff. '' S.A.No. 614 of 1998 7 13. The decision reported in (1986 Kerala 110) V.V. Janaki v. P.P. Paru, held as follows: “I feel no doubt to hold that the contesting defendants in their capacity as co-owners acted as constructive trustees of the plaintiff and other defendant when they obtained the purchase certificates. This position has been accepted by Paripoornan,J. In 1984 Ker LJ 764 : (AIR 1985 (NOC) 23), Kundathodi Saidali v. Kappil Amina Umma the learned Judge observed : “That apart, once it is admitted or proved or found that the original lease of the plaint items was in favour of Kunhahammed and the renewal was in favour of Kunhahammed and Ist defendant, Kunhahammed and his heirs will be co-owners alongwith the Ist defendant. Even though the heirs of Kunhahammed (plaintiffs) were not eo nomine parties to the proceedings evidenced by Ext. B-14, as long as the certificates evidenced by Exts. B-7 and B-13 were obtained by the Ist defendant, who was only a co-owner, the rights obtained will certainly enure to the benefit of the heirs of Kunhahammed as well. This S.A.No. 614 of 1998 8 follows in view of the fact that a co-owner in possession will be treated as a trustee as held by the Supreme Court in the decision reported in Karbalai Begum v. Mohd. Sayeed (AIR 1981 SC 77).” 14. The decision reported in (1990(2) KLT 854) Kunhunni v. Kesavan Namboodiri held as follows: “Though non-participation in the income for fairly a long period is evident in this case, there is no other circumstance to support the possibility of an inference being drawn that there has been ouster. Mere participation by itself, in the absence of any other circumstance, may not be sufficient to enable the court to hold that there is ouster.” 15. On going through the above decisions, it can be seen that co-owner in possession will be deemed to be in possession on behalf of all co-owners. It can also be seen that mere non participation of income or mere long possession by themselves are not sufficient to constitute ouster. 16. The reasons given by the lower appellate court to come to the conclusion that the rights of the plaintiff and similarly situated S.A.No. 614 of 1998 9 persons are barred by adverse possession and limitation does not seems to have support of law. The mere fact that the plaintiff and defendants 2, 4 and 5 at the time of their marriage were given shridhanam will go against them as found by the lower appellate court is something which cannot be supported. It is well known that succession opens on the date of the death of the person concerned and Kochan George died in 1968, Successions open then. It cannot be disputed that the parties are governed by Indian Succession Act. If that be so, the defendants 2, 4 and 5 have a share in the property. 17. Then the only question is where their rights are barred by the claim of adverse possession and limitation and ouster made by defendants 3, 6 and 7. There is no positive evidence of any act having been done by the defendants 3, 4, 6 and 7 indicating that they had clearly asserted their rights in themselves to the exclusion of others. 17. Faced with this situation, the learned counsel appearing for the contesting respondent before this court made a frivolous plea for remand to enable the parties to adduce additional evidence and show that defendants 3, 6 and 7 have perfected title by adverse possession and limitation in respect of plaint C schedule. In the light of the fact that the plaintiff admitted on PW1, she had demanded S.A.No. 614 of 1998 10 a share, a year after the death of her father and was not granted share etc. There is some indication that there has been hostility between the parties. However, as already noticed the evidence is not sufficient to constitute adverse possession, limitation and ouster. But it is felt that an opportunity needs to be given to defendants 3, 6 and 7 to establish their case as far as C schedule property is concerned. In the result, the appeal is allowed. The judgment and decree of the lower appellate court is set aside so far as the plaint C schedule property is concerned. The matter is remanded to the trial court for fresh consideration of dispute relating to C schedule property only in accordance with law and in the light of what has been stated above. The parties are free to adduce further evidence. The parties shall appear before the lower court on 01.06.2011. The court shall make every endeavour to dispose of the suit as early as possible, at any rate within 6 months from the date of appearance of the parties before it. P.BHAVADASAN, JUDGE. ln