IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 RSA.No. 271 of 2010() --------------------- AS.12/2001 of SUB COURT, OTTAPPALAM OS.233/1998 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANT/IST RESPONDENT/IST DEFENDANT ---------------------------------------------------------- PRABHAKARAN, AGED 71 YEARS, S/O.UPPAMOOCHIKKAL MUTHU, RESIDING AT PALAPPURAM AMSOM AND DESOM, OTTAPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENTS/APPELLANT AND 2nd RESPONDENT/PLAINTIFF & 2nd DEFENDANT: ------------- ----------------------------------------------------------- 1. SREEDHARAN, AGED 81 YEARS, S/O.KAVUNGAL VALLI, RESIDING AT PALAPPURAM AMSOM AND DESOM, PALAPPURAM POST, OTTAPALAM TALUK. 2. PREMAKUMAR, AGED 40 YEARS, S/O.PADICKALPARAMBU VASU, RESIDING AT PALAPPURAM AMSOM AND DESOM, PALAPPURAM POST, OTTAPALAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.271 of 2010 --------------------------------------- Dated this 17th day of March, 2010 JUDGMENT This appeal is at the instance of defendant No.1 against whom the first appellate court has passed a decree for partition and separate possession. Respondent No.1/plaintiff sued appellant and respondent No.2, assignee of a portion of the property from the appellant seeking partition of suit property alleging that it was acquired by the late Appunni as per Ext.B5 (Ext.A1 is its certified copy), assignment deed No.1234 of 1952 for and that on behalf of his family and the said Appunni died about 28 years back leaving appellant and respondent No.1 as co-owners. Muthu, brother of late Appunni had pre-deceased him. Mother of appellant died about 17 years back while mother of respondent No.1 died about 23 years back. On the death of Appunni half of the suit property devolved on his sister, Valli and on the death of Valli that half share devolved on respondent No.1. Hence the demand for partition. Appellant contended that suit property is the self acquisition of the late Appunni. It is also his claim that as per custom which prevailed in the community (Thandan community) of the parties, Polyandry was permitted and that the late Appunni and his brother, Muthu jointly married Aachu and in that wedlock appellant is born. He therefore is entitled to succeed to the entire share of the said Appunni R.S.A.No.271 of 2010 2 being his sole legal heir. He applied for and obtained purchase certificate for the suit property. At any rate, title of respondent No.1 if any is lost by adverse possession and limitation. Respondent No.2/supplemental defendant No.2 claimed that he purchased 10 cents as per assignment deed No.1185 of 1996 executed by Krishnakumar who acquired it from the appellant as per assignment deed No.8884 of 1994. He also prayed for a reservation. Trial court found that respondent No.1 had title over the suit property but, it is lost by adverse possession and limitation. On appeal at the instance of respondent No.1, first appellate court reversed that finding and granted preliminary decree for partition which is under challenge in this second appeal urging by way of substantial question of law whether first appellate court was legally correct in holding against title claimed by appellant by adverse possession and limitation. Learned counsel would contend that first appellate court has wrongly applied decision of the Supreme Court in Hemaji Waghaji Jat Vs. Bhikhabham Khengarbhai Harijan (2008(4) KLT 357 (SC)). According to the learned counsel that decision is not law declared by the Supreme Court but is in the form of recommendation to the Central Government to make necessary amendment in the law of limitation. Learned counsel also contends that on the evidence on record, first appellate court could not have reversed finding of fact entered by the learned Munsiff. R.S.A.No.271 of 2010 3 2. Though it was contended by appellant in the trial court that property was the self acquisition of the late Appunni, that claim was found against by both the courts in the light of Exts.A1 and A3 and that finding is not under challenge in this second appeal. Appellant has a contention that his mother, Aachu was married to the late Appunni and Muthu and in support of that plea, produced Exts.B2, B4(a) and B6. On the other hand respondent No.1 placed reliance on Exts.A2 to A4. It is not in dispute that Polyandry was permitted in the community to which the parties belonged. Appellant examined DW2 to say about the late Appunni and Muthu marrying Aachu jointly but, it came out in evidence that DW2 was aged about only 15 or 16 years during the time of alleged joint marriage took place. Going by the version of DW2 that marriage was during 1945-46, but Ext.A4 revealed that appellant was born on 20-06-1933. Trial court was not impressed by the evidence of DW2. So far as Exts.B2, B3, B4(a) and B6 relied on by appellant is concerned it is true that in those documents name of father of appellant is stated as Appunni. But, it would appear from those documents that information regarding name of father was given by the appellant himself. All those documents are self serving and cannot bind respondent No.1. As against that, in Ext.A4, extract of school admission register relating to the appellant name of his father is stated as 'Muthu”. Ext.A2 is a copy of gift deed executed by late Muthu in favour of Valli, mother of respondent No.1 and Ext.A3 is the copy of R.S.A.No.271 of 2010 4 assignment deed executed by the late Muthu in favour of Attiri Sankunni Nair. In Exts.A2 and A3 Muthu has described appellant as his son. In the light of the above evidence courts below were correct in holding that the claim of appellant about joint marriage of the Appunni and Muthu with Aachu and that appellant is the son of Muthu born in Aachu cannot be accepted. 3. The next question is whether first appellate court was legally correct in reversing finding of adverse possession and limitation. Ext.B2 is the purchase certificate dated 18-08-1976 issued in the name of appellant. It is primarily based on Ext.B2 that plea of adverse possession and limitation are raised. Trial court took the view that purchase certificate is conclusive but, forgot that conclusiveness under section 72K of the Land Reforms Act is not available to a certificate as against persons who are entitled to individual notice but no such notice is given. There is no case that notice of proceeding which culminated in Ext.B2 was given to respondent No.1. Hence Ext.B2 cannot bind respondent No.1. At any rate, if one of the co owners obtained purchase certificate that should enure to the benefit of all the owners. Hence based on Ext.B2 appellant cannot successfully contend that from then onwards, he is in exclusive possession and enjoyment of the property, at any rate holding it against respondent No.1. 4. So far as plea of adverse possession and limitation among R.S.A.No.271 of 2010 5 co-owners is concerned, it is the settled position of law that there must be plea and evidence of actual ouster and that the mere fact that one of the co-owners was managing the property or, the other was not sharing the profits of the properties is not sufficient by itself to prove ouster. The reason is that one co-owner in possession of the property will be treated as a trustee for the other (See Kundathodi Saidali Vs. Kappil Amina Umma & Ors (1984 KLJ 764)). One co-owner in possession of the property cannot render his possession adverse to the other co-owner not in possession merely by any secret, hostile animus on his own part in derogation of the other co-owners title (See Madhavan Pillai Vs. Padmanabha Pillai (1989(1) KLT SN.No.29). There must be evidence of open assertion of hostile title to the knowledge of other co-owners. 5. In this case, it is true that when examined as PW1, respondent No.1 stated that the suit property was being looked after and managed by the appellant on his own and that she had not questioned the same. That statement does not mean ouster of respondent No.1 from the property or amount to an admission of assertion of hostile title by the appellant. In Meethiyan Sidhique Vs. Muhammed Kunju Pareeth Kutty and Ors (AIR 1996 SC 1003) it was held that only on proving assertion of hostile title to the knowledge of co-owners out of possession, question of co-owner in possession perfecting title by adverse possession and limitation arose. R.S.A.No.271 of 2010 6 6. First appellate court has referred to the decision of the apex court in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan (2008(4) KLT 357 (SC)). Argument of learned counsel for appellant is that it is not law declared but is in the form of recommendation to the Central Government to amend law relating to the law of limitation. Even in that decision it is stated as a declaration of law that adverse possession must start with wrongful disposition of rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Here, appellant has come into possession of the suit property as one of the co-owners. If that be so that character of his possession must continue until he asserted hostile title towards respondent No.1. Such evidence is not available and hence first appellate court is justified in its conclusion that appellant has not perfected title by adverse possession and limitation. No substantial question of law is involved in the light of the decisions which I have stated above and the facts and circumstances of the case. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/