IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 RSA.No. 1472 of 2011 ---------------------------- AS.18/2009 of SUB COURT, THIRUVALLA OS.199/2004 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT / APPELLANT / 5th DEFENDANT : - ------------------------------------------------------------------ ABDUL HAKIM N.M., S/O LATE K.K. MARAKKAR RAUTHER, PUTHENPURAYIL SYMA MANZIL, RAILWAY STATION P.O, THIRUVALLA. BY ADVS. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN RESPONDENTS / RESPONDENTS / PLAINTIFFS & DEFENDANTS 1 TO 4 : - -------------------------------------------------------------------------------------------------------- 1. SUBAIDA BEEVI, 66 YEARS, W/O HAJI P.M HASSANKUNJU, NAZIA MANZIL, KARAPPUZHA, KOTTAYAM VILLAGE, KOTTAYAM DISTRICT, PIN – 686 001. 2. HAMSAMMA BEEVI, 63 YEARS, W/O SAYED MOHAMMED, PUTHENPARAMBIL HOUSE, ANAKALLU, KANJIRAPALLY, KOTTAYAM DISTRICT, PIN – 686 507. 3. HALEEMA BEEVI, 58 YEARS, W/O ABDUL RAHIM, SHYNA MANZIL, FATHIMAPURAM, CHANGANASSERY VILLAGE, PIN – 686 101. 4. RASHEEDA BEEVI, 55 YEARS, W/O HANEEFA, VANIYATHU VADAKETHIL, VIZHOORSRIKARA, MANNAR – 686 102. RSA.No. 1472 of 2011 5. SAFIA BEEVI, AGED 54 YEARS, W/O SHAHULHAMMED, KUNNAMPURATHU HOUSE, MUNDAKAYAM VILLAGE, KOTTAYAM DISTRICT – 686 002. 6. LAILA BEEVI, 49 YEARS, W/O HAMMED, THOPPIL HOUSE, NEAR NSS LADIES HOSTEL, PERUNNA EAST, CHANGANASSERY – 686 101. 7. MOHAMMED SADIQ, 41 YEARS, S/O SULAIKHA BEEVI, VAZHAKALA PUTHENPARAMBIL, FATHIMAPURAM, CHANGANASSERY – 686 101. 8. SHAJI, 38 YEARS, S/O SULAIKHA BEEVI, VAZHAKALA PUTHENPARAMBIL, FATHIMAPURAM, CHANGANASSERY – 686 101. 9. SUBAIR, 35 YEARS, S/O SULAIKHA BEEVI, VAZHAKALA PUTHENPARAMBIL, FATHIMAPURAM, CHANGANASSERY – 686 101. ADV. SRI.T.M.ABDUL LATHEEF FOR CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DMR/- M.SASIDHARAN NAMBIAR, J ........................................... RSA No. 1472 of 2011 ............................................ DATED THIS THE 21st DAY OF DECEMBER, 2011 JUDGMENT Fifth defendant in O.S.199 of 2004 on the file of Munsiff Court, Thiruvalla is the appellant. Respondents 1 to 5 are the plaintiffs and other respondents, the other defendants in the suit. Challenging the preliminary decree, appellant filed A.S.18 of 2009 before Sub court, Tiruvalla. Learned Sub Judge, on re- appreciation of the evidence confirmed the preliminary decree and dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. The fact that plaint schedule property belonged to Kunhi Marakkar and on his death, as intestate in 1974, the rights devolved on his legal heirs, the plaintiffs and defendants are not in dispute. The only question is the availability of the plaint schedule property. Appellant contended that the case of appellant was that his sisters, the daughters of Kunhi Marakkar were given in marriage and were given money and property and therefore they are not entitled to a share. It was also contended that their right has RSA 1472/2011 2 been lost by ouster and adverse possession. Courts below, on proper appreciation of the evidence, found that there is no evidence to prove that in lieu of the share of daughters of Kunhi Marakkar, they were given either property or money and therefore it was found that they are also entitled to share. Though ouster and adverse possession was set up, courts below found that there is no evidence to prove ouster and a preliminary decree was passed. Though, in the appeal memorandum, it was contended that there is a family arrangement and therefore, the other sharers are not entitled to claim a share, such a plea was not raised in the written statement. There was no evidence also. In such circumstances, on the pleading and evidence, no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk