IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 RSA.No. 597 of 2011() --------------------- AS.49/2000 of SUB COURT, CHERTHALA OS.104/1994 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANTS/DEFENDANTS 4 & 6/RESPONDENTS 4 & 6 ------------------------------------------------------------------------------------ 1. MURALI @ MURALEEDHARAN,AGED 63 YEARS, S/O.LATE NARAYANAN, RESIDING AT ATTUPURATH HOUSE, PERMTHURUTH MURI,KANJIKUZHY VILLAGE, MUHAMMA PO, CHERTHALA TALUK. 2. THANKAMMA, W/O.MURALEEDHARAN,AGED 57 YEARS, RESIDING AT ATTUPURATH HOUSE, KANJIKUZHY VILLAGE,MUHAMMA PO, CHERTHALA TALUK. BY ADV. SRI.THOMAS JOSEPH RESPONDENT(S): APPELLANT AND RESPONDENTS 1,2,3 & 5/PLAINTIFF AND DEFENDANTS 1,2,3 & 5 --------------------------------------------------------------------------------------------------------------- 1. ANANTHAN, S/O.VASU, AGED ABOUT 75 YEARS, RESIDING AT ATTUPURATH HOUSE,PERMTHURUTH MURI, KANJIKUZHY VILLAGE,MUHAMMA PO, CHERTHALA TALUK. 688 525. 2. SAVITHRI, D/O.VASU, AGED ABOUT 66 YEARS RESIDING AT ATTUPURATH HOUSE,PERMTHURUTH MURI, KANJIKUZHY VILLAGE,MUHAMMA PO, CHERTHALA TALUK. 688 525. 3. RAJAMMA, D/O.VASU,AGED 62 YEARS, RESIDING AT ATTUPURATH HOUSE,PERMTHURUTH MURI, KANJIKUZHY VILLAGE,MUHAMMA PO, CHERTHALA TALUK. 688 525. 4. SUSEELA, D/O.VASU, AGED ABOUT 60 YEARS RESIDING AT ATTUPURATH HOUSE,PERMTHURUTH MURI, KANJIKUZHY VILLAGE,MUHAMMA PO, CHERTHALA TALUK. 688 525. 5. GOPALAN, S/O.VASU, AGED ABOUT 58 YEARS, RESIDING AT ATTUPURATH HOUSE,PERMTHURUTH MURI, KANJIKUZHY VILLAGE,MUHAMMA PO, CHERTHALA TALUK. 688 525. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 597 OF 2011 =========================== Dated this the 18th day of July,2011 JUDGMENT Fourth defendant in O.S.104/1994 on the file of Munsiff Court, Cherthala is the first appellant. First respondent is the plaintiff and the other respondents are the defendants in the suit. First respondent sought partition and separation of his 1/4 shares in the plaint schedule property contending that plaintiff and defendants 1 to 3 are the children of deceased Vasu. Later when defendant No.4 contended that Vasu had one more son who was not impleaded, fifth defendant was impleaded as the son of Vasu. According to the plaintiff the plaint schedule property belongs to the plaintiff and defendants 1 to 3 as per document No.15 of 1966 of Mararikulam Sub Registry and it has been in their joint possession and fourth defendant RSA 597/2011 2 based on a fraudulent document in collusion with other defendants is claiming right over the plaint schedule property and plaintiff is not a party to the document and his rights will not be affected by it and being a co-owner plaintiff is entitled to get his share separated. Appellant resisted the suit contending that the plaintiff has no right in the property. It was admitted that plaintiff and defendants 1 to 3 are the children of deceased Vasu and Vasu is having another son by Gopalan and the suit is bad for his non joinder. It was also contended that even prior to the assignment deed 15/1966, based on which the plaintiff is claiming right, 2.32 acres including the plaint schedule property has been in the possession and enjoyment of the plaintiff and defendants 1 to 3 and 5 as per Ext.B4 gift deed executed by Vasu and assignment deed 15/1966 is only the assignment of jenm right and the property obtained under Ext.B4 was put in the possession of plaintiff, defendants 1 to 3 and RSA 597/2011 3 5 by Vasu. According to the appellant as per an oral lease on 10.11.1963, the property was put in possession of Raman Narayanan, the father of the appellant and since then Raman Narayanan has been in possession of the property and while so defendant No.5 on his behalf and on behalf of defendants 1 to 3 assigned their right in favour of the father of the appellant under Ext.B5 sale deed and thus Raman Narayanan obtained absolute right in the property and he in turn put the appellant in possession of 64 cents of the property including the plaint schedule property and while so father of the defendant executed Ext.B8 gift deed in favour of the appellant and his wife Thankamma and under the gift deed, they have been in possession of the property and therefore plaintiff is not entitled to seek partition. Subsequently Gopalan and Thankamma the wife of the appellant were impleaded as defendants 5 and 6. 2. Learned Munsiff on the evidence of Ext.B1 RSA 597/2011 4 to B8 dismissed the suit holding that the fourth defendant has been in possession of the property and plaintiff was unaware of Ext.B5 sale deed and plaintiff is not entitled to claim a share in view of Ext.B5. Plaintiff challenged the judgment before Sub Court, Cherthala in A.S.49/2000. Learned Sub Judge on reappreciation of evidence found that the appellant has admitted the right of Vasu and as well as the right of the plaintiff under the assignment deed 15/1966. Though it was contended that the property was in the possession of father of the appellant as per the oral lease of 1963, no evidence was adduced to prove the lease. It was also found that as plaintiff was not a party to Ext.B5 assignment deed, whereunder the other brothers of the plaintiff assigned their right in favour of father of the appellant, plaintiff is entitled to get his share. Finding that Vasu had five children and thus plaintiff is only entitled to only 1/5 share, a preliminary decree was passed directing division of the plaint schedule property RSA 597/2011 5 into five equal shares and allotment of one share to the plaintiff and the remaining shares to defendants 4 and 6 as, they have obtained the rights of defendants 1 to 3 and 5. The second appeal is filed challenging the said decree. 3. Learned counsel appearing for the appellants was heard. 4. The argument of the learned counsel is that Ext.B5 sale deed and Ext.B6 receipt establish that the appellant has been in exclusive possession of the property obtained by his father under Ext.B5 and Ext.B6 contains a specific recital that the property covered under that document lies on the side of the property assigned to Murali who is the appellant herein and therefore first appellate court was not justified in holding that plaintiff is entitled to 1/5 share. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the second appeal. 6. Though plaintiff claimed 1/4share under RSA 597/2011 6 the assignment deed of 1966 contending that under the assignment deed plaint schedule property belongs to the plaintiff and defendants 1 to 3, first appellate court rightly found that under Ext.B4 gift deed the property was gifted by Vasu, the father in favour of plaintiff, defendants 1 to 3 and 5, the five children and if the plaint schedule property is available for partition, plaintiff is only entitled to 1/5 share. Learned Sub Judge also found that though defendants 1 to 3 and 5 assigned their right in favour of the father of the appellant, the right of the plaintiff is unaffected by Ext.B5 as he is not a party to the document and therefore plaintiff is entitled to get his share separated. 7. Though learned counsel argued that Ext.B6 receipt issued by the plaintiff in 1980 establishes that he had acknowledge of Ext.B5 assignment by his brothers in favour of the appellant, Ext.B6 is a receipt admittedly not issued in favour of the appellant. Appellant did not examine anybody to RSA 597/2011 7 prove Ext.B6 receipt. Even if it is taken that reliance could be placed on the recitals in Ext.B6, unless it is established that the property covered by that document lies on the boundary of the plaint schedule property herein, reference about the assignment in favour of Murali cannot be taken as in respect of Ext.B5 assignment the plaint schedule property executed by his brothers. Though an oral lease was set up appellant in favour of his father, he did not adduce any evidence. Though learned Munsiff found that the appellant has been in possession of the property adverse to the plaintiff, no issue on ouster and adverse possession was claimed. No oral evidence was adduced to prove that the appellant has been in possession of the plaint schedule property exclusively and that too adverse to the plaintiff. When appellant admitted the rights of the plaintiff under Ext.B4 gift deed as well as the assignment deed 15/1966 and claim that his father obtained the entire rights under Ext.B5, as plaintiff is not a RSA 597/2011 8 party to Ext.B5, the rights of the plaintiff cannot be claimed by the appellant. As the rights obtained by his father under Ext.B5 was transferred in his favour under Ext.B8 gift deed and appellant is claiming the right under Ext.B8 which in turn is the right obtained by his father under Ext.B5, possession of the appellant could only be as by a co-owner. Hence unless ouster is pleaded and proved, plaintiff is entitled to get his share.In such circumstances, first appellate court rightly found that plaintiff is entitled to 1/5 share and passed a preliminary decree. In the light of the factual findings, no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- RSA 597/2011 9 JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006