IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 SA.No. 76 of 2000(A) ------------------------- AS.1112/1994 of SUB COURT,NEYYATTINKARA OS.538/1992 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT(S):(APPELLANT/11TH DEFENDANT) --------------------------------------------------------- PANKAJAKSHI LELITHA, MEKKUMKARA PUTHEN VEEDU, CHILAVUKODE MARANALLOOR DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S):(RESPONDENTS 1 TO 7 & 9 TO 13/PLAINTIFFS, DEFENDANTS 1 TO 4 & 6 TO 10) ---------------------------------------------------------------------------- 1. BHARATHI KUNJULEKSHMI, AGED 52, KULATHINKARA MELE PUTHEN VEEDU, CHAZHE CHILAVUKODE, MARANALLOOR DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK. 2. MANIKUTTAN, AGED 32 OF DO. DO. NOW WORKING AS K.S.A. 11475, RIYADH P.B. NO.21214, REP. BY POWER OF ATTORNEY HOLDER 3RD RESPONDENT. 3. THANKAPPAN ANILKUMAR, AGED 25, KULATHINKARA MELE PUTHEN VEEDU, CHILAVUKODE OF DO. DO. 4. AMMUKUTTY CHELLAMMA, AGED 58, APPATTUVILA PUTHEN VEEDU, KALLIYOOR DESOM, KALLIYOOR VILLAGE. 5. AMMUKUTTY YESODA, AGED 58, CHITTAKODE ROADARIKATHU PUTHEN VEEDU MARANALLOOR DESOM, FROM THAZHE CHILAVUKODE MEKKUMKARA VEEDU, MARANALLOOR DESOM, MARANALLOOR VILLAGE. svs ...............2/-.. ...2... SA.No. 76 of 2000(A) 6. RAMAN GOPALAN, AGED 53, CHILAVUKODE MEKKUMKARA PUTHEN VEEDU, OF DO. DESOM, DO VILLAGE. 7. RAMAN SASIDHARAN, AGED 51, THACHAMAN ROADARIKATHU VEEDU, OF DO. DO. 8. AMMUKUTTY SAROJAM, AGED 42, MELEKUNJUVILA VEEDU, PALARAKUZHY, NARUVAMMOODU, PALLICHAL DESOM, PALLICHAL VILLAGE. 9. BHARATHI RADHAMMA, AGED 47, KULATHINKARA MELE PUTHEN VEEDU, THAZHE CHILAVUKODE, MARANALLOOR DESOM, DO. VILLAGE. 10. RADHAMMA JAYAKUMARI, AGED 35, OF DO.DO. 11. VISWANATHAN BIJU, AGED 27, OF DO. DO. 12. KOCHUKRISHNAN PUSHPANGATHAN, AGED 62, ROADARIKATHU PUTHEN VEEDU, CHITTAKODE DESOM, OF DO. DO. R1 TO 3 BY ADVS. SRI.L.MOHANAN SRI.D.SAJEEV R7 BY ASDV. SRI.R.T.PRADEEP THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO. 412/2000 IN S.A. NO. 76/2000 DISMISSED 20/12/2010 SD/- P.S.GOPINATHAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs P.S.GOPINATHAN, J. ---------------------------- S.A.No.76 OF 2000 --------------------------- Dated this the 20th day of December, 2010 J U D G M E N T ~~~~~~~~~~~ The 11th defendant in O.S.No.538/1992 is the appellant. The suit was one for partition instituted by respondents 1 to 3 seeking a decree for partition and separation of their 1/8 share of 4/10 share over item Nos.1, 3 and 4 and 1/8 share of 3/10 share over item Nos.2, 5, 6 and 8. It was contended that the property was belonging to late Raman as was obtained by virtue of Ext.A2 partition deed dated 15.4.1953 and on death of Raman in the year 1963, it devolved upon the widow and nine children of Raman and that the plaintiffs are the widow and children of Thankappan, one of the children and thus they have got right over the plaint schedule property. 2. The appellant herein, who is the 11th defendant, took up a defence that by virtue of Ext.B1 assignment deed executed by Yasodha, the daughter of Raman, who obtained a gift of the share of the other sharers in respect of item No.6 of the plaint schedule property, the appellant has got absolute right and is S.A.No.76/2000 2 not liable to be partitioned. Some of the other defendants took up a defence in respect of the other items by virtue of Ext.B3 partition deed. When the suit came up for trial, the plaintiffs abandoned their claim for partition over all items of properties except item No.6. 3. On the side of the plaintiffs, 1st plaintiff and another were examined as PWs 1 and 2. Exts.A1 to A3 were marked. The contesting defendants including the appellant didn't adduce any oral evidence. On their side, Exts.B1 to B4 series were marked. On appraisal of the evidence, the trial court arrived at a conclusion that the plaintiffs are entitled to 1/10 share over item No.6 of the plaint schedule properties. Accordingly, a preliminary decree for partition was passed. Though the appellant went in appeal as A.S.No.1112/1994 on the file of the sub court, Neyyattinkara, the appellant was not successful. Now the Second Appeal. 4. It is not disputed that the appellant got Ext.B1 assignment from Yasodha, who is one of the ten legal heirs of S.A.No.76/2000 3 late Raman and now appellant claim right under Ext.B1. Yasodha got the rights of other heirs except Thankappan by gift on the strength of Ext.B2 settlement deed dated 20.5.1964. Though Tankappan, one among the ten legal heirs of Raman, was also shown as a party in Ext.B2, Thankappan had not signed the document. So, Ext.B2 itself would show that Thankappan, the predecessor of the plaintiffs, had got one out of 10 share over Ext.B1 property. If Ext.B2 was cared to be examined by 11th defendant, who now appeals, she should have known that Yasodha had not obtained right of Thankappan by gift or otherwise and that Yasodha had only 9/10 shares. Yasodha could not assign any right other than what she had got. Since Yasodha had not got any gift or assignment from Thankappan. Thankappan died intestate. The right of Thankappan devolved upon the plaintiffs, who are the widow and children of Thankappan. The appellant could not claim any right or title over the share of Thankappan. 5. The learned counsel for the appellant very vehemently argued that the right of the plaintiffs over item No.6 had been S.A.No.76/2000 4 lost by adverse possession and limitation. It is not disputed that the appellant got assignment from Yasodha by virtue of Ext.B1 just one year before the institution of the suit. So, as on the date of institution of the suit, the appellant could claim that the appellant perfected title by adverse possession and limitation. The learned counsel then argued that Yasodha had acquired the title of Thankappan over item No.6 by adverse possession and limitation. In fact, Yasodha remained exparte and she has no case that she had perfected title over the share of Thankappan by adverse possession and limitation. So long as Yasodha had no claim, the appellant also cannot claim. It is also curious to note that there is no such whisper in Ex.B1 also. Appellant could not claim anything beyond what was obtained by Ext.B1. Adding to the above, the perfection of title by adverse possession and limitation is a matter to be pleaded and proved by the party who claims such right. There is no such pleading by Yasodha. The parties had not even chosen to adduce any oral evidence. In the above circumstance, the plea of loss of right of the plaintiffs over item No.6 by adverse possession and limitation is S.A.No.76/2000 5 devoid of any merits. The courts below were justified in decreeing the suit. The plaintiffs were rightly found entitled to claim 1/10 share over item No. 6 of the plaint schedule property. The appeal is devoid of merit and accordingly it is dismissed. Costs would come out of the estate. The trial court in final decree proceedings may make an attempt to see whether the matter could be settled amicably. (P.S.GOPINATHAN, JUDGE) ps