IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 SA.No. 359 of 1995() ----------------------------- AS.38/1990 OF III ADDITIONAL DISTRICT COURT, ERNAKULAM OS.594/1987 of II ADDITIONAL SUB COURT, ERNAKULAM .................... SECOND APPELLANTS/RESPONDENTS/DEFENDANTS: --------------------------------------------------------------------------------- *1. JOSEPH, S/O.OUSEPH, THOTTIYIL VEEDU, PUTHENPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK P.O., EDAPPALLY, COCHIN-24. *(DIED) **2. LAZAR, S/O.OUSEPH, THOTTIYIL VEEDU, DO. KARA, DO. VILLAGE, DO. TALUK, EDAPPALLY P.O., COCHIN-24. **(DIED) * ADDL. APPELLANTS 3 TO 6 IMPLEADED 3. MARY, W/O.LATE JOSEPH, THOTTIYIL VEEDU, PUTHENPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK P.O., EDAPPALLY, COCHIN-24. 4. ALPHONSA JOSEPH, D/O.LATE JOSEPH, THOTTIYIL VEEDU, PUTHENPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK P.O., EDAPPALLY, COCHIN-24. 5. MARY THOMAS, D/O.LATE JOSEPH, THOTTIYIL VEEDU, PUTHENPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK P.O., EDAPPALLY, COCHIN-24. 6. PHILOMINA SEBASTIAN, D/O.LATE JOSEPH, THOTTIYIL VEEDU, PUTHENPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK P.O., EDAPPALLY, COCHIN-24. * ADDL. APPELLANTS 3 TO 6 ARE IMPLEADED AS LRS OF DECEASED 1ST APPELLANT, AS PER ORDER DATED 21/01/2011 IN I.A.1344/2009. SA.No. 359 of 1995 ** ADDL. APPELLANTS 7 TO 14 IMPLEADED 7. REJEENA, W/O.LATE LAZAR, 75 YEARS, THOTTIYIL VEEDU, EDAPPALLY P.O, TOLL GATE, VPM ROAD, PIN-682 024. 8. VINCENT T.L., S/O.LATE LAZAR, 38 YEARS, THOTTIYIL VEEDU, EDAPPALLY P.O, TOLL GATE, VPM ROAD, PIN-682 024. 9. VARGHESE T.L., S/O.LATE LAZAR, AGED 45 YEARS, THOTTIYIL VEEDU, PURAMCHAL ROAD, MANJUMMEL P.O., ERNAKULAM-683 501 10. T.L. JOHNSON, S/O.LATE LAZAR, AGED 46 YEARS, THOTTIYIL VEEDU, EDAPPALLY P.O, TOLL GATE, VPM ROAD, PIN-682 024. 11. T.L. ANTONY, S/O.LATE LAZAR, AGED 50 YEARS, THOTTIYIL VEEDU, EDAPPALLY P.O, TOLL GATE, VPM ROAD, PIN-682 024. 12. JOSEPH T.L., S/O.LATE LAZAR, AGED 52 YEARS, THOTTIYIL VEEDU, UNICHIRA, CHANGAMPUZHA NAGAR P.O., PIN-682 033. 13. MARY IMMANUEL, D/O.LATE LAZAR, AGED 43 YEARS, PALIYATHARA VEEDU, POTTAKUZHI ROAD, MAMANGALAM, PALARIVATTOM P.O., ERNAKULAM DISTRICT-682 025. 14. LISSY JOB, D/O.LATE LAZAR, AGED 40 YEARS, ALAPPATT VEEDU, VARAPPUZHA LANDING P.O., PIN-683 517. ** ADDL. APPELLANTS 7 TO 14 ARE IMPLEADED AS LRS OF DECEASED 2ND APPELLANT, AS PER ORDER DATED 21/01/2011 IN I.A.234/2011. BY ADV. SRI.VIVEK VARGHESE P.J. RESPONDENTS/APPELLANTS/PLAINTIFFS: ---------------------------------------------------------------- #1. GEORGE, DRIVER, S/O.THOTTIYIL OUSEPH, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. #(DIED) SA.No. 359 of 1995 $2. CHACKO, COMPANY EMPLOYEE, S/O.THOTTIYIL OUSEPH, RESIDING AT THOTTIYIL VEEDU, DO. KARA, DO. VILLAGE, EDAPPALLY P.O., COCHIN-24. $(DIED) #3. ANDREWS, MAISON, THOTTIYIL OUSEPH, RESIDING AT THOTTIYIL VEEDU, DO. VILLAGE, CHANGAMPUZHA NAGAR P.O., COCHIN-33. #(DIED) 4. ANTONY, MAISON, S/O.THOTTIYIL OUSEPH, THOTTIYIL VEEDU, DO. KARA, DO. VILLAGE. #5. MAGDALANA, D/O.THOTTIYIL OUSEPH, AND W/O.GEORGE, VELIPARAMBIL, CHERANELLOOR DESOM, CHERANELLUR VILLAGE, DO. TALUK. #(DIED) # ADDL. RESPONDENTS 6 TO 27 IMPLEADED 6. THRESSIAKUTTY, W/O.LATE GOERGE, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. 7. ANNAKKUTTY VARGHESE, D/O.LATE GOERGE, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. 8. MARY, D/O.LATE GOERGE, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. SA.No. 359 of 1995 9. PHILO BABY, D/O.LATE GOERGE, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. 10. VARGHESE, S/O.LATE GOERGE, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. 11. JUSTIN, S/O.LATE GOERGE, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. 12. PEEYOUS, S/O.LATE GOERGE, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. 13. LAWRENCE, S/O.LATE GOERGE, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. 14. JOSHY, S/O.LATE GOERGE, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. 15. PAUL, HUSBAND OF LATE ECHAMMA, D/O.LATE GEORGE, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. 16. ANCIL, S/O.LATE ECHAMMA, D/O.LATE GEORGE, RESIDING AT THOTTIYIL VEETTIL, PUTHENPALLIPRAM KARA, THRIKKAKARA, THRIKKAKKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. CHANGAMPUZHA NAGAR, COCHIN-24. SA.No. 359 of 1995 17. SHEELA THOMAS, D/O.LATE ANDREWS, THOTTIYIL VEEDU, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK, P.O. EDAPPALLY, COCHIN-24. 18. ELSY JOSEPH, D/O.LATE ANDREWS, THOTTIYIL VEEDUL, PUTHENPALLIPRAM KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK P.O., EDAPPALLY, COCHIN-24. 19. JACOB, S/O.LATE MAGDALENE, VELIPARAMBIL, CEHRANELLOOR DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 20. SEBASTIAN, S/O.LATE MAGDALENE, VELIPARAMBIL, CHERANELLOOR DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 21. FR.MICHAEL, S/O.LATE MAGADALENE, VELIPARAMBIL, CHERANELLOOR DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 22. FRANCIS, S/O.LATE MAGDALENE, VELIPARAMBIL, CHERANELLOOR DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 23. MARY THOMAS, D/O.LATE MAGDALENE, VELIPARAMBIL, CHERANELLOOR DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 24. KOCHUTHRESSIA DAVID, D/O.LATE MAGDALENE, VELIPARAMBIL, CHERANELLOOR DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 25. BABY JOSEPH, W/O.LATE JOSEPH, VELIPARAMBIL, CHERANELLOOR DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 26. VIJI JOSEPH, D/O.LATE JOSEPH, VELIPARAMBIL, CHERANELLOOR DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 27. SINI PAUL, D/O.LATE JOSEPH, VELIPARAMBIL, CHERANELLOOR DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. # ADDL. RESPONDENTS 6 TO 27 ARE IMPLEADED AS LRS OF DECEASED RESPONDENTS 1, 3 AND 5 RESPECTIVELY, AS PER ORDER DATED 21/01/2011 IN I.A.1344/2009. SA.No. 359 of 1995 $ ADDL. RESPONDENTS 28 TO 33 IMPLEADED 28. SMT.STELLA CHACKO, W/O.LATE CHACKO T.J., THOTTIYIL VEEDU, PUTHUPALLIPRAM KARA, EDAPPALLY P.O., COCHIN-24. 29. AANI, D/O.LATE CHACKO T.J., THOTTIYIL VEEDU, PUTHUPALLIPRAM KARA, EDAPPALLY P.O., COCHIN-24. 30. MR.JOSEPH, S/O.LATE CHACKO T.J., THOTTIYIL VEEDU, PUTHUPALLIPRAM KARA, EDAPPALLY P.O., COCHIN-24. 31. MR.FRANCIS, S/O.LATE CHACKO T.J., THOTTIYIL VEEDU, PUTHUPALLIPRAM KARA, EDAPPALLY P.O., COCHIN-24. 32. GEORGE, S/O.LATE CHACKO T.J., THOTTIYIL VEEDU, PUTHUPALLIPRAM KARA, EDAPPALLY P.O., COCHIN-24. 33. MARTIN, S/O.LATE CHACKO T.J., THOTTIYIL VEEDU, PUTHUPALLIPRAM KARA, EDAPPALLY P.O., COCHIN-24. $ ADDL. RESPONDENTS 28 TO 33 ARE IMPLEADED AS THE LRS OF DECEASED 2ND RESPONDENT AS PER ORDER DATED 21/01/2011 IN I.A.2947/2010. R4, ADDL. R17, R18 & R20 TO R33 BY ADV. SRI.N. NEELAKANDHAN NAMBOODIRI, SRI.P.V. SUBRAMANIYAN NAMBOODIRI. SRI.P.S. NARAYANA RAJA. ADDL. R6 TO R16 BY ADV. SRI.LITTO VARGHESE PALATHINKAL. SMT.P.K.GIGIMOLE. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - S.A.No. 359 of 1995 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November, 2011 J U D G M E N T The defendants in O.S.No.594 of 1987 before the Sub Court Ernakulam, which was a suit for partition are the appellants. 2. The parties and facts are hereinafter referred to as they are available before the trial court. 3. Parties are siblings. Property admittedly belonged to their father late Ouseph. They had an elder brother by name Poulose whose whereabouts were not known. Claiming that the plaintiffs did not wish to continue the joint possession, the suit for partition was laid. 4. The defendants resisted the suit by pointing out that even during the lifetime of their father, the properties were given by the father to his children and each of them were in possession of the respective properties. Therefore the plaint schedule property was not available for partition. They also pleaded adverse possession and limitation, in -:2:- S.A.No. 359 of 1995 case, it is found that the plaintiffs had title and could sue for partition. 5. On the above pleadings issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A3 from the side of the plaintiffs. The defendants had DWs 1 to 3 examined and Exts.B1 to B11 series marked. 6. On an evaluation of the evidence, the trial court came to the conclusion that the claim made by the defendants are true and that the right if any of the plaintiffs are lost by adverse possession and limitation. Accordingly the suit was dismissed. The plaintiff carried the matter in appeal as A.S.No.38 of 1990. The appellate court found that the finding on adverse possession and limitation entered into by the trial court cannot be upheld and reversed the findings of the trial court and passed a preliminary decree which reads as follows:- (1)The plaint schedule property will be partitioned into 7 equal shares and 5 shares shall allotted to the share of the -:3:- S.A.No. 359 of 1995 plaintiffs/appellants. (2)The three buildings which were in existence at the time of institution of the suit shall not be available for partition and the respondents will be entitled to three buildings and those buildings shall be allotted to the share of the respondents. (3)The building constructed by the respondents after the filing of this appeal in violation of the order of injunction shall be removed by the respondents at their costs and the respondents shall not have any special right over that building. (4)The parties can apply for passing a final decree in accordance with law. (5)The parties are directed to suffer their respective costs through out. 7. This judgment and decree are assailed in this second appeal. 8. Notice is seen issued on the following questions of law:- 1. Whether the lower appellate court is legally justified in reversing the trial court's decree and judgment on the pleading, evidence and decision applicable to the facts of the case. 2. Are the plaintiffs who were slumbering over their alleged right for 20 years and allowing and who were not questioning the defendants exclusive enjoyment and appropriation of the suit properties entitled for claiming partition. -:4:- S.A.No. 359 of 1995 3. Is not long, continuous, and exclusive possession of suit property by defendants 1 and 2 sufficient to show that the plaintiffs were ousted from the suit property. 4. Are not the circumstances brought out through the witnesses and documents indicative of an inference that there was ouster of the other co-owners from possession. 5. Are not the plaintiffs estopped by silence to claim partition being aware of their rights and allowing the defendants to appropriate the suit property by construction in others name. 6. Is not the language of the Church in marriage service -let him now speak of else hereafter for ever hold his peace and regard – the absence of notice or protest as a representation of the absence of the right, title or interest which should have been the subject of such notice on protest-applicable on the facts of the case. 7. Are the plaintiffs who have silently, without any protest accepted the directives of the later father entitled to claim partition contrary to such directives. 9. The learned counsel appearing for the appellants pointed out that the lower appellate court was not justified in upsetting the judgment and decree of the trial court, which, after analysis of the evidence in the case and facts and circumstances of the case had come to the conclusion that the defendants have been in possession of the suit -:5:- S.A.No. 359 of 1995 property for a considerably long period and they had been asserting right in themselves to the suit property. At any rate, the learned counsel pointed out that it is admitted by PW1 that defendants 1 and 2 were permitted by his father to occupy the respective buildings in the property and they have been in occupation for more than 30 years of the respective buildings. Even during the life time of father, these defendants have been exercising rights over the respective property as if it belonged to them and nobody had taken any objection to that conduct of the defendants. It is also pointed out that the evidence of PW1 is clear to the effect that one of them put up structures. This shows that he too knew the actual arrangement made by his father regarding the properties. The learned counsel highlighted that the father died in 1966 and till 1987 the plaintiffs did not seek to agitate their claim. It shows that they were aware of the true facts and has come forward with a false suit. The learned counsel also pointed out that the evidence -:6:- S.A.No. 359 of 1995 would disclose that some of the plaintiffs have given property by their mother which was in fact the acquisition of father. At any rate, the learned counsel pointed out that the defendants may be allowed to retain the extent of property occupied by the buildings in which they have been residing for several years. 10. The learned counsel appearing for the respondents on the other hand pointed out that, once it is found that the adverse possession and limitation plea fails, then a preliminary decree has to follow and that is all what the lower appellate court has done. The learned counsel also drew the attention of this Court to the fact that the lower appellate court had made reservation in respect of the buildings and there is no room for any grievance for the appellants. Based on these contentions, it is considered there are no grounds to interfere with the judgment and decree of the lower appellate court. 11. As rightly pointed out by the learned counsel for -:7:- S.A.No. 359 of 1995 the respondents, the plea of adverse possession and limitation cannot stand. Apart from the fact that there is no clear pleadings. Evidence is also wanting in that respect. One has to remember that when the plea of adverse possession and limitation is taken by a party, the burden is on him to establish the said fact. The burden is more heavy in this case as there has to be clinching and convincing evidence to show ouster of other co-owners to their knowledge and that the claimants have been asserting their independent right, title and possession over the property. There is no such evidence in this case. 12. The learned counsel appearing for the appellants pointed out that, though it has not been raised before the court below that father of the plaintiff had granted permission to the defendants to occupy the properties and the defendants have put up structures therein and have made vast improvements, the permission so granted by the father can be treated as a license and license to erect -:8:- S.A.No. 359 of 1995 structures and to effect improvements in the property and it qualifies to fall under Section 60(b) of the Indian Easements Act, 1882 and the license became irrevocable. 13. It would appear from a reading of the Section 60 (b) that so called license arrangement cannot qualify to fall under that category since there are documents to that effect. In the case on hand the appellants rely on an oral license. Apart from that the evidence would indicate that the buildings were in fact put up by the father and the defendants occupied the buildings put up by him as directed by him. As regards some temporary structures like cow shed etc, it cannot qualify to fall under the category of permanent structures and also there is an allegation that some of them are put up after the suit. 14. But one fact needs serious consideration. The evidence clearly shows that the defendants have been in possession and occupation of the houses for decades and the lower appellate court has reserved the right for -:9:- S.A.No. 359 of 1995 allotment of the three buildings in their favour. According to the counsel it may so happen that the extent of land actually occupied by the buildings may extent beyond the share to what they are entitled to and if they are directed to surrender appurtenant land, it would cause injustice. 15. Since it is found that the buildings had been put up long ago and the respective defendants have been residing in the respective buildings for several decades, it is only just and proper that the land occupied by the buildings be allotted to them subject to the condition that the extent of land so allotted does not exceed 7.5 cents. One may recollect that the total extent of plaint schedule property is 47 cents and it is to be divided into seven shares. Of course, by the above stipulation, it may so happen that the appellants may get a slight extent more than to what they are entitled to but in equity and in the interests of the parties, it is felt that such a direction is just and proper. In the result:- The preliminary decree passed by the -:10:- S.A.No. 359 of 1995 lower appellate court is confirmed subject to the modification of Clause No. 2 which shall be read as:- the three buildings which were in existence along with the land not exceeding 7.5cents, shall be allotted to the respective defendants as their share. If the buildings occupy more than 7.5cents the respective defendant were liable to pay owelty to the plaintiffs. Subject to the above modification, the preliminary decree is confirmed and this second appeal is disposed of as above. There will be no order as to costs. P.BHAVADASAN, JUDGE kkj