IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 RSA.No. 1081 of 2009() ---------------------- AS.126/2001 of II ADDL. DISTRICT COURT, KOLLAM OS.244/1993 of SUB COURT,KOTTARAKKARA .................... APPELLANTS/APPELLANTS/DEFENDANTS: ---------------------------------------------------- 1. LAILA BEEVI, AGED 55 YEARS, W/O. LATE MUHAMMED SHERIF, THEVACHARAZHIKATHY VEEDU, KIZHAKKEKARA MURI, KOTTARAKKARA. 2. FAZILA, AGED 36 YEARS, D/O. LAILA BEEVI, THEVACHARAZHIKATHY VEEDU, KIZHAKKEKARA MURI, KOTTARAKKARA. 3. HAZEENA, AGED 34 YEARS, D/O. LAILA BEEVI, THEVACHARAZHIKATHY VEEDU, KIZHAKKEKARA MURI, KOTTARAKKARA. BY ADV. SRI.ALEXANDER GEORGE SRI.J.ABHILASH RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- SHAMSUDEEN, AGED 44 YEARS, S/O. MEERASAYU RAWTHER, RESIDING AT NEDIYASALA, THEKKETHIL VEEDU, PADINJATTINKARA, MURI, KOTTARAKKARA VILLAGE, KOTTARAKKARA. By ADV. K. S. MANU & P.SREEKUMAR – CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.1081 of 2009 --------------------------------------- Dated this 19th day of October 2009 JUDGMENT The second appeal arises from judgment and decree of learned Additional District Judge, Kollam in A.S.No.126 of 2001 confirming preliminary decree for partition passed by learned Sub Judge, Kottakakara in O.S.No.244 of 1993. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. Plaintiff is the younger brother of the late husband of defendant No.1, Meera Sayu Rawther Muhammed Sherif (hereinafter referred as Muhammed Sherif). Defendant Nos.2 and 3 are children of Defendant No.1. According to the plaintiff, suit property belonged to Muhammed Sherif as per sale deed Nos.4531 of 1967, 1489 of 1977 and 4392 of 1979. Muhammed Sherif died in the year 1980 and thereon suit properties devolved on defendants and parents of Muhammed Sherif. Parents executed Ext.A1, sale deed in favour of plaintiff in respect of their 16/48 shares. On the strength of Ext.A1 plaintiff demanded partition and separate possession of his share. Defendants resisted the suit contending that item No.2 of the plaint schedule was purchased by defendant No.1 with funds raised by defendant No.1 by sale of her family property though, item No.2 happened to be purchased in the name of her husband. It is also the contention of defendants that Muhammed Sherif was murdered by R.S.A.No.1081 of 2009 2 plaintiff and his parents and that plaintiff or his parents did not have any right, title, interest or possession of the suit properties. Assignment deed in favour of plaintiff is a sham document and has not taken effect. At any rate title of plaintiff over the suit property is lost by adverse possession and law of limitation. Plaintiff gave evidence as PW1. Defendant No.1 gave evidence as DW1. DW2 is a witness examined on the side of defendant. Trial court found that properties are partible among plaintiff and defendant Nos.1 to 3 and passed preliminary decree. First appellate court has confirmed that finding. In the second appeal at the instance of defendant Nos.1 to 3 the substantial questions of law urged are whether Ext.A1, sale deed is executed between plaintiff and his parents for valid consideration, whether item No.2 of the plaint schedule was acquired by defendant No.1 in the name of her husband and whether plaintiff has any right over item No.2 of the plaint schedule. It is also contended that courts below did not discuss the evidence in the proper manner and in the light of Ext.B1 it ought to have been found that acquisition of item No.2 of the plaint schedule was with the funds of defendant No.1 though in the name of her husband. 3. So far as allegation that Muhammed Sherif was murdered by plaintiff and his parents is concerned, it is not disputed by defendant Nos.1 to 3 also that connected criminal case ended in acquittal. No acceptable evidence is adduced by the defendants as to R.S.A.No.1081 of 2009 3 that allegation. 4. So far as item No.1 is concerned, there is no serious dispute for the defendants also and it would appear that at the time of evidence in trial court, defendant No.1 expressed her willingness to spare item No.1 to save item No.2 from partition. At any rate there is no claim for defendants that item No.1 did not belong to Muhammed Sherif. 5. So far as item No.2 is concerned, contention is based on Ext.B1, assignment deed dated 14-06-1979 executed by defendant No.1 in respect of family properties. According to her, it is making use of the sale consideration received as per Ext.B1, sale deed that a portion of item No.2 was purchased in the name of Muhammed Sherif. Exts.A3 and A4 are the copy of assignment deed in favour of Muhammed Sherif in respect of entire item No.2 properties. Ext.A4 is dated 19-05-1977 while Ext.A3 is dated 29-11-1979. So far as acquisition of a portion of item No.2 as per Ext.A4 is concerned defendants make no claim since Ext.B1 sale deed is executed on 14- 06-1979 (after Ext.A4 dated 19-05-1977) and hence they cannot contend that making use of sale consideration obtained as per sale on 14-06-1979 (Ext.B1) a portion of item No.2 was acquired by defendant No.1 on 19-05-1977. 6. So far as acquisition of rest of item No.2 as per Ext.A3 dated 29-11-1979 is concerned, it is seen that it is almost five months R.S.A.No.1081 of 2009 4 after Ext.B1. On the question whether sale consideration obtained as per Ext.B1 was used for purchase of property as per Ext.A3 is concerned what is available is only the interested version of defendant No.1 as DW1 while, Ext.A3 and A4 say that the sale consideration flowed from Muhammed Sherif. Another circumstance to be noted is that parents of plaintiff and Muhammed Sherif filed O.S.No.151 of 1980 against defendant No.1 and others claiming that they as legal heirs of Muhammed Sherif have share in the suit properties and seeking injunction against defendant No.1 interfering with their joint possession and enjoyment of the suit properties with defendant No.1. That suit was decreed in favour of parents of plaintiff and Muhammed Sherif as seen from Exts.A7 and A8. That means contentions raised by defendant Nos.1 to 3 that a portion of item No.2 was purchased by her using her funds but in the name of her husband was not accepted in O.S.No.151 of 1980. Therefore the contention that portion of item No.2 was acquired by defendant No.1 was rightly found against by courts below. Parents have assigned their share in favour of plaintiff as per Ext.A1, sale deed No.2600 of 1970. 7. Further contention is that Ext.A1 is a sham document and that no consideration has passed between plaintiff and his parents who executed Ext.A1. Learned counsel referred me to Ext.A1 to the consideration mentioned therein. What is stated in Ext.A1 is that plaintiff has spend certain amount for the marriage expenses of his R.S.A.No.1081 of 2009 5 sister. Past consideration is good consideration under Indian law. There is nothing to show that Ext.A1 is a sham document as contended by defendant No.1. It is seen that Muhammed Sherif died only in the year 1980 and 1980 itself the court has accepted the joint possession of the parents of Muhammed Sherif in the suit properties consequent to his death. Parents of Muhammed Sherif and following them, plaintiff are co owners of the suit properties. As they are co-owners a mere plea of adverse possession is not sufficient. There must be plea and evidence of ouster which is lacking in the case. On the facts and evidence courts below have found in favour of plaintiff. On going through the judgment under challenge and hearing learned counsel, I do not find any substantial question of law involved in the second appeal requiring its admission and notice to the respondent/plaintiff. The second appeal fails. It is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/