IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 SA.No. 69 of 2000(G) ------------------------------ AS.12/1993 of ADDL.SUB COURT, IRINJALAKUDA OS.1404/1991 of ADDL.MUNSIFF COURT,IRINJALAKUDA .................... APPELLANT(S): APPELLANT/DEFENDANT ----------------------------------------------------------- VIJAYAN, S/O.KIZHUPPILLY KANDU, AGED 59 , VENDOOR DESOM, AMBALLUR VILLAGE, MUKUNDAPURAM TALUK, TRICHUR. BY ADV. SRI.K.S.MADHUSOODANAN SRI.C.P.PEETHAMBARAN SRI.A.B.SUBIRE SRI.C.P.REJI SRI.T.N.SURESH SRI.T.K.ANIRUDHAN RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------------------- 1. KUTTAPPAN S/O. KUZHUPPILLY KANDU, AMBALLUR VILLAGE, VENDOOR DESOM, MUKUNDAPURAM TALUK, TRICHUR. 2. SUBADRA D/O. CHIMMINI CHATHU AND D/O. KIZHUPPILLY KANDU, DO. DO. 3. CHANDRIKA W/O. KALLADATHI KUTTAPPAN AND D/O. KANDU, DO. DO. ADV. SRI.C.K.SAJEEV FOR R1 SMT.T.B.MINI FOR R1 SRI.V.N.SANKARJEE FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.165/2000 IN S.A. NO.69/2000 DISMISSED 01/06/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A.TO JUDGE tss P.BHAVADASAN, J. ---------------------------- S.A.No. 69 of 2000 --------------------------------- Dated this the 1st day of June, 2011 JUDGMENT The third defendant in O.S. No.1404/1991 before the Munsiff's Court, Irinjalakuda, who suffered concurrent decrees at the hands of the lower court is the appellant. The parties and facts are herein after referred to as they are available before the trial court. 2. The suit was one for partition. The parties are siblings. According to the plaintiff, her mother Ammu obtained Patta of the suit property and consequent on her death the property devolved in equal shares on the plaintiff as well as the defendants. Pointing out that he did not wish to continue joint possession, the suit was laid. 3. The defendants resisted the suit. Defendants 1 and 2 filed joint written statement and third defendant had filed separate written statement. Contentions in both the written statements are almost same. The husband of the second defendant had trespassed into 22 cents of puramboke land out of S.A.No. 69 of 2000 2 that 22 cents and he gifted 8 cents to the third defendant. At the relevant time the third defendant was a minor. Therefore, patta was obtained by mother for and on his behalf. He put up building in the property and the plaintiff never resided in the property and the plaintiff had no manner of right over the same. On the basis of these contentions defendants prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts. A1 to A6 from the side of the plaintiff. Defendants examined as DWs 1 and 2 and had Exts.B1 to B4 marked. On an appreciation of the evidence in the trial court found that the contention put forward by the defendants are untenable and passed the preliminary decree as follows: The plaint schedule property has to be divided into four equal shares and the plaintiff is entitled to get 1/4 such shares and the defendants together are entitled to get the remaining 3/4 shares. The plaintiff is entitled to get past three years and future mesne profits in proportion to his share from the date of the S.A.No. 69 of 2000 3 suit till he gets the separate possession of his share or for three years from the date of the final decree, which ever even happens earlier. The question regarding the quantum of mesne profits is relegated to be decided in the final decree proceedings. The third defendant is liable for the mesne profit of the plaintiff. The cost of the suit will come out of the estate. Any of the parties is at liberty to take steps to pass final decree and to divide the property by metes and bounds. 5. The aggrieved third defendant took up the matter in appeal as A.S.No.12/1993 before the Sub Court, Irinjalakuda. The lower appellate court after an independent evaluation of the material before it concurred with the trial court and dismissed the appeal. 6. Notice is seen issued on the following substantial questions of law shown in the memorandum of appeal: i. Whether the basic tax receipt showing the name of the person who remitted the tax confers title of the property to the payer ? ii. Whether the building tax assessment register showing name of the owner and the occupier of the building is a proof toward ownership as well as continuous and uninterrupted occupation ? iii. Whether the plea of adverse possession and ouster can be pleaded together against a co- S.A.No. 69 of 2000 4 owner, who is never in occupation of the property ? iv. Whether the house constructed out of own fund during the life time of mother, the owner of the property can be treated as a separate property of the person who constructed it or whether it can be treated as an irrevocable license and can claim protection under section 60 of the Easement Act. 7. The learned counsel appearing for the appellant very vehementally contended that the courts below have erred in law and on facts in decreeing the suit. Even though patta in respect of the property stood in the name of his mother it was for and on behalf of the third defendant. The evidence would clearly show that the plaintiff has never resided in the property nor was he ever in joint possession in the suit property. It is further contended that there is clinching evidence to show that the house in the property was put up by the third defendant using his fund and neither the plaintiff nor any other defendants have any manner of right over the same. It is contended that there is absolutely no evidence to show that there was any joint status in respect of the suit property which entitles the plaintiff to seek partition. S.A.No. 69 of 2000 5 8. Both the courts below have concurrently found that the case put forward by the third defendant cannot be accepted for cogent and convincing reasons. 9. It is not in dispute that the patta in respect of the suit property stands in the name of the mother of the parties. The contention of the third defendant is that the suit property was gifted to him by the husband of the second defendant out of 22 cents of puramboke land held by him. There is absolutely no evidence of said gift at all. Further contention was that patta obtained by Ammu was for and on behalf of the third defendant. It needs to be borne in mind that the gift of immovable property having value of more than Rs.100/- has to be by a registered document. 10. PW1 has stated that he was left the place early in life that wandered for a long time and at present he is residing elsewhere. These are relied on by the appellant to show that plaintiff had never resided in the suit property nor had he exercised any manner of right over the suit property. 11. On going through the materials available it cannot be stated that courts below erred any manner. Once it is shown S.A.No. 69 of 2000 6 that the patta stands in the name of his mother, it is for the third defendant to show that it was for obtained by for and behalf of him in respect of the property gifted to him. As already noticed there is no evidence in that regard. Both the courts below have noticed that there is nothing to show that funds were available the third defendant to put up a building and that the building was put up with the consent of the plaintiff and other co-owners of the property. Once it is shown that the suit property is co- ownership property it is for the person who claims exclusive right to the building to show that he is entitled to it. The necessary requirements have not been established. The courts below have found that the evidence of DW1 and DW2 are inconsistent regarding the funds provided for construction of the house. Even assuming that the reason given by the courts below are not fully acceptable, the fact remain that there is nothing to show that the building was put up with the consent of the other co-owners. There is nothing to show that third defendant had exclusive right to the property. 12. Both the courts have also considered Exts.B1 to B4 and had come to the conclusion that those documents by themselves S.A.No. 69 of 2000 7 are insufficient to prove ouster and exclusive right to the third defendant. It is significant to notice that the plaintiff had produced Exts. A2 and A2(a) which are the basic tax receipts in respect of the property. If as a matter of fact the property exclusively belonged to the third defendant he would have paid the tax for the property. It was the above facts that persuaded the courts below to hold against the third defendant and also his claim that the building was put up by him. The findings are based on appreciation of the evidence in the case and are findings of facts. The findings are neither shown to be perverse nor unwarranted by the evidence on record. The result is that no substantial questions of law arises for consideration in the second appeal. The appeal is without merits and is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln