IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 AS.No. 707 of 1999(B) --------------------- OS.344/1993 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT/IST DEFENDANT: ----------------- OUSEPH, S/O.CHACKO, PAZHAYATHOTTATIL, RESIDING AT PUNCHAVAYALIL, 604 VADAKUMMURI, ERUMELI VILLAGE. BY ADV. SRI.K.B.SURESH RESPONDENTS/PLAINTIFF 1 TO 3: -------------------- 1. ALEY, W/O.LATE CHACKO, RESIDING AT THAIPARAMPIL, VADAVATHOOR P.O., KOTTAYAM. 2. ANNA, D/O.ALEY, AGED ABOUT 36, -DO- -DO- 3. ABHAS, S/O.BABUKHAN, RESIDING AT MEERANPARAMBIL HOUSE, MAGAPETTA, EDAKUNNAM. 4. PHILIPOSE JAIN, RESIDING AT ALAMPALLIL, PAMPADY KARA, -DO- VILLAGE. 5. PHILILPOSE, S/O.ITTY, RESIDING AT -DO- -DO- ADV. SRI.BECHU KURIAN THOMAS FOR R3 SRI.PRAKASH PUTHIADAM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- A.S.NO. OF 2005 --------------------------- DATED THIS THE 19TH DAY OF OCTOBER, 2009 JUDGMENT The lst defendant in O.S.No.344/93 on the file of the Sub Court, Kottayam is the appellant. The appeal is directed against the judgment and decree dated 6/6/1998. The suit was filed for partition. The plaint schedule property having an extent of one acre and virivu belonged to late Chacko. The lst plaintiff is the wife of late Chacko, the 2nd plaintiff is their daughter and the lst defendant is the son of late Chacko born through his first wife. It is the plaintiff's case that the deceased Chacko married the lst plaintiff on 30/5/1960 and Chacko died on 30/5/1972. The plaintiffs claimed 2/3 share over the plaint schedule property. The trial court passed a preliminary decree dividing the property into three equal shares and declared that the plaintiffs are entitled to get 2/3 share and the lst defendant is entitled to get 1/3 share. 2. The lst defendant resisted the suit contending that -2- A.S.No.707/1999 he was cultivating the property for the last number of years, that late Chacko became a T.B. patient in the year 1950 and therefore he could not do any work and that it was this defendant, who cultivated and improved the property and effected valuable improvements by planting coconut trees, arecanut trees, jack trees, teak trees, pepper wines, rubber trees etc. According to him, he has constructed kayyalas on all sides and put up a residential building worth not less than Rs.2 ½ lakhs. After the construction of the building he was residing in the property with his wife and the deceased Chacko was residing far away from the plaint schedule property at Kanjiramattam. It is also averred that the defendant's mother died when he was about 4 years old. While his father was living as a widower, he happened to come in contact with the lst plaintiff Aley, who is a widow having two daughters, and married her. After the marriage, the lst plaintiff came to know that late Chacko was a T.B. patient and therefor she left Chacko and started living with one Mathai, who is also a widower having children. -3- A.S.No.707/1999 3. The evidence in this case consists of depositions of PW1, DW1 to DW4, Exts.A1 to A4 and X1 and X2. 4. The lst plaintiff is the 2nd wife of deceased Ouseph Chacko. According to the lst plaintiff, the 2nd plaintiff is the daughter born to her and Chacko. Chacko died on 30/5/1972. According to her, the plaintiffs and the lst defendant are the legal heirs entitled to inherit the property of deceased Chacko. It is the plaintiffs' case that the lst plaintiff has married Chacko on 30/5/1960 and the marriage was in existence till the death of Chacko. Ext.X1 is the photocopy of the marriage register of Holy Cross Church. In Ext.X1 register, the marriage between lst plaintiff and Chacko was registered and the same was endorsed as Serial No.65. From the evidence on record, it is seen that sthe lst plaintiff is the legally wedded wife of Chacko and the 2nd plaintiff daughter was born to them in the wedlock. The trial court held that they are entitled to inherit the property belonged to the deceased Chacko. The trial court also considered the contentions of the lst defendant in detail including the contention -4- A.S.No.707/1999 of adverse possession and limitation. According to the lst defendant, his father was a T.B. patient for more than 10 to 20 years, that he was not able to do any work and so according to him, he is in exclusive possession over the plaint schedule property and even if the plaintiffs are found to be the legal heirs of Ouseph Chacko, they are not entitled to inherit the property. Ext.A3 is the copy of the sale deed executed by the lst defendant in favour of third party. The recitals in Ext.A3 would go to show that the lst defendant has alienated the property as the legal heir of the deceased Chacko. The trial court considered the evidence and rightly held that there is absolutely no evidence to show that the possession of the lst defendant was exclusive one as against the plaintiffs. I find that the evidence adduced by the lst defendant is not sufficient to take a different conclusion. There is absolutely no evidence to show that he had ever possessed the property adverse to the interest of the plaintiffs. The trial court also observed that the mere statement that the property has been in possession and enjoyment for long time by a party is not at all -5- A.S.No.707/1999 sufficient and that there must be clear, definite and specific evidence to prove exclusive possession adverse to the interest of the real owner. Having failed to prove that he is enjoying the property adverse to the other co owners, the trial court held that the possession of the lst defendant over the property was also for the interest and benefit of the other legal heirs, namely, the plaintiffs in the suit. The trial court issued a direction that at the time of allotting the shares in the final decree proceedings, the property alienated by the lst defendant shall be allotted to his share. 5. The lst defendant has a definite case that since his father was a T.B. patient, he has improved the property by effecting cultivation and constructed the house situated in the property and is living therein with his family. 6. The property is available for partition. It is submitted by the learned counsel for the plaintiffs that they have conveyed their 2/3 share in favour of the third plaintiff. But the sale deed was not produced before the court. In the light of the -6- A.S.No.707/1999 fact that the plaintiffs had alienated their 2/3 share to the 3rd plaintiff and for the reason that they had only alienated their share over the property and for the further reason that they had not conveyed any right over the residential building in question, a modification of the decree and judgment is proper and just in the circumstances. The appeal is partly allowed. The plaint schedule property is liable to be partitioned except the residential building. To that extent the preliminary decree is modified. The 2/3 share shall be allotted to the 3rd plaintiff subject to the production of sale deed before the final decree court. The residential building shall be allotted to the share of the lst defendant. There will be no order as to costs. HARUN-UL-RASHID, Judge. kcv. -7- A.S.No.707/1999