IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 AS.No. 332 of 1994() ---------------------------- OS.100/1992 of SUB COURT, VADAKARA .................... APPELLANT(S): PLAINTIFF ----------------------- OTHOYATH AMMED HAJI, S/O. ABDULLA, KUTTIADI AMSOM, THONDIPOYIL DESOM, VADAKARA TALUK(DIED) *SOLE APPELLANT DIED. L.Rs IMPLEADED --------------------------------------------------------------- 2. OTHAYOTH BIYYATHU W/O. LATE OTHOYOTH AMMED HAJI, KUTTIADI AMSOM, THONDIPOYIL DESOM, VADAKARA , KOZHIKODE DISTRICT. 3. OTHAYOTH KUNHAMI, W/O. LATE OTHAYOTH AMMED HAJI, DO. DO. 4. OTHAYOTH KUNHABDULLA , S/O. LATE OTHAYOTH AMMED HAJI, DO. DO. 5. OTHAYOTH ASSIYA, D/O. LATE OTHAYOTH AMMED HAJI, DO. DO. 6. OTHAYOTH SARA, D/O. LATE OTHAYOTH AMMED HAJI, DO. DO. 7. OTHAYOTH ABDUL SALAM, S/O. LATE OTHAYOTH AMMED HAJI, DO. DO. 8. OTHAYOTH SAFIYA D/O. LATE OTHAYOTH AMMED HAJI, DO. DO. 9. OTHAYOTH SUBAIDA, D/O. LATE OTHAYOTH AMMED HAJI, DO. DO. 10. OTHAYOTH SOUDHA, D/O. LATE OTHAYOTH AMMED HAJI, DO. DO. A.S. NO.332/1994 *ADDL. APPELLANTS 2 TO 10 ARE IMPLEADED AS THE L.Rs OF DECEASED SOLE APPELLANT AS PER ORDER DT. 5.6.97 IN CMP. 2579/97. BY MR.T.R.G.WARRIYER , SR. ADVOCATE, MR. A.A.ABUL HASSAN, MR. V.M.KURIAN (JR) RESPONDENT(S): DEFENDANTS ------------------------- 1. MAKKINTAVIDA THAMASIKUM OTHOYATH KUNHAMMEDKUTTY, S/O. ABDULLA, KUTTIADI AMSOM, THONDIPOYIL DESOM, VADAKARA TALUK, KOZHIKODE DIST. 2. PUTHANPURAYIL PARKUM PAZHE MADATHIL AYISSU, D/O. KUNHIKUTIALI, DO. DO. 3. KEERAMKAYI KUNIYIL PARKUM KOLAMULLATHIL BEEVI, D/O. KUNHIKALANDHAN, DO. DO. 4. VELIPARAMBATH THAMSIKUM THIYYARUKANDI KUNHAVULLA, S/O. MOIDU, VADAYAMSOM, VADAKARA TALUK. 5. SIRAJUL HUDA ISLAMIC EDUCATION COMPLEX, REP.BY ITS SECRETARY, PURAMADATHIL P.M., ABDURAHIMAN MUSLIAR, S/O. KUNHABDULLA HAJI, KUTTIADI AMSOM, THONDIPOYIL DESOM, VADAKARA TALUK. 6. VELIPARAMBATH THAMASIKUM KARIYATTU MOIDU, VADAYAMSOM, DESOM, VADAKARA TALUK R1 BY ADVOCATE MR.M.K.ABOOBACKER R5 BY ADVOCATES MR.G.S.REGHUNATH MR.A.SHAHUL HAMEED MR.V.R.VENKATA KRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- A.S.No. 332 OF 1994 --------------------------------- Dated this the 19th day of January, 2009 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge, Vadakara in O.S. No. 100/1992. The suit is one for partition and the trial court dismissed the suit on the ground that there had been an oral surrender and in any event by ousters. It is against that decision the plaintiff has come up in appeal. 2. The brief facts necessary for the disposal of the appeal are stated as follows: During the pendency of the appeal, the sole appellant died and his legal representatives had been impleaded as supplemental appellants 2 to 10. One Abdulla who is the title holder to the property had two sons namely plaintiff and the 1st defendant and a daughter by name Kunhami. It is the case of the plaintiff that after the death of this Abdulla the property as per the Mohammedan Law had devolved upon the plaintiff, 1st defendant and Kunhami. Plaintiff and 1st defendant are entitled to 2/5 shares each and Kunhami got 1/5 share in the property. This Kunhami's daughter is the 2nd plaintiff and defendants 3 to 6 are persons in possession of A.S.No. 332/1994 -2- portions of the property. According to the plaintiff the property is held in joint possession and therefore the plaintiff is entitled to the relief prayed for. The 1st defendant's brother supports the contention of the plaintiff. The contesting defendant in the suit are the 3rd defendant and others. According to them the property belonged to Abdulla and in the year 1936 the jenm right of the property was purchased by Kunhami on 5.6.1936. Thereafter on 30.6.1936 Abdulla orally surrendered his tenancy right in the property in favour of Kunhami and thereby Kunhami became the absolute owner in possession of the property. Thereafter she had been continuously and uninterruptedly enjoying the property and in the year 1978 after the death of Kunhami, the property was divided by metes and bounds under a partition deed and the plaint schedule property was set apart to the share of the 2nd defendant in the case. Therefore neither the plaintiff nor the 1st defendant did have any right over the property and therefore the suit is liable to the dismissed. As stated by be earlier, the trial court did not accept the plea of the plaintiff and it is against that decision the plaintiff has come up in appeal. 3. The point that arises for determination are : 1. Whether the court below was right in accepting the case of A.S.No. 332/1994 -3- oral surrender by Abdulla in favour of Kunhami? 2. Whether the order of the trial court upholding plea of ouster, adverse possession and limitation is correct? 3. Is there anything to interfere with the decision rendered by the trial court? 4. Point No.1: This point deals with the question of the right in the property. Admittedly the property belonged to Mr. Abdulla. There is no dispute that the plaintiff, 1st defendant and Kunhami are the children of Abdulla. It is the definite case of the contesting defendant that the jenm right over the plaint schedule property was purchased by Kunhami by virtue of Ext. B1 document dated 11.6.1936. Thereafter on 30.6.1936 there was an oral surrender of the lease hold right by Abdulla in favour of Kunhami. On the death of Kunhami in the year 1978, the property had been divided and it is set apart to the share of the 2nd defendant. The learned counsel for the appellant would strongly contend before me, until and unless the defendants are able to establish the case of oral surrender the contention that the property is partable has to be accepted. There is no document to prove the oral surrender. Oral surrender of a tenancy is not unknown to law, so it is the circumstances and other A.S.No. 332/1994 -4- connected materials that have to be looked into in order to find out whether there was a probable case of surrender as alleged by the contesting defendants in the case. It has to be understood that the original owner Abdulla died 55 years back. Thereafter there was a partition between his children in the year 1962. Admittedly the plaint schedule property was not a subject matter of that partition is admitted by the parties. When confronted with such a difficult situation the plaintiff would submit that there was some dispute regarding the partibility of the plaint schedule property and so it was not divided in the year 1962. When there was a dispute with respect to the partibility of the property in 1962, by no stretch of imagination one can believe that the plaintiff would have keep quite for a long number of 30 years to institute a litigation of this nature. So the factum of non inclusion of this property at the time of oral partition with other properties of Abdulla would show that at the time of death of Abdulla this property did not belong to him. 5. It has to be remembered that between the heirs of Kunhami there was a division of the property by virtue of Ext. B5 on 1.11.1978. This property was also included as a part and parcel of that document and was set apart to the share of the 2nd defendant. A.S.No. 332/1994 -5- It is true, neither the plaintiff nor the 1st defendant is a party to Ext. B5 document. It has to be stated that from the properties which were the subject matter of Ext. B5 partition, a portion had been purchased by the plaintiff. It is true that it does not relate to the plaint schedule. I am specifically stating it to hold that the plaintiff was aware of a partition deed between the heirs of Kunhami which took place in 1978. The assignment deed with respect to some property included in that document in favour of the plaintiff was also done in the year 1978. This suit is instituted in the year 1992 i.e. long after 13-14 years after the plaintiff has come to know about the Ext. B5 partition deed. This also indicate the fact that all is not well with the plaintiff's case. 6. The learned counsel for the appellant strongly contends before me that what is recited in Ext. B5 is “ The learned counsel would contend that it only indicates the right of Kunhami over the property that is being partitioned. There is no case for the plaintiff that all the properties covered under Ext. B5 belong to them jointly and it is only the fractional right of Kunhami over that property that is being partitioned. Ext. B5 deals with the exclusive property of Kunhami and that has been divided. So the A.S.No. 332/1994 -6- word “ “ means the property belonged to Kunhami and not in the other sense as contended by the learned counsel for the appellant. This has been rightly discussed and held by the trial court also in paragraph 18 of its judgment. Therefore Ext. B5 also will militate against the case of the plaintiff in this case. 7. To crown these things it has to be remembered that a portion of the property was acquired under the provisions of the Land Acquisition Act. The judgment relating to that acquisition case is produced as Ext. B25 and it can be seen from the said judgment that the present plaintiff was examined as a party to support the case of the 3rd defendant regarding the entitlement of the 3rd defendant to get the compensation. We cannot expect the plaintiff so philanthropic at the time of apportionment of the compensation and therefore knowingly that Kunhami was the owner he had let in evidence. Further a building has been constructed by the 3rd defendant therein. The property had changed hands. It is in the possession of the 5th defendant. 5th defendant has constructed a building in the property. So right in front of his eyes all these things are happening and neither the plaintiff nor the 1st defendant didn't move their little finger to do anything with respect to the A.S.No. 332/1994 -7- same and after a lapse of about 55 years after the death of the father a case is instituted for partition. So the sum and substance of the materials convincingly establish the factum that Kunhami was dealing with the property as her exclusive property and in the back drop of the Ext. B1 assignment deed one can infer that there was surrender as contended. So I hold that the finding of the trial court regarding the genuineness of the oral surrender cannot be found fault with. 8. Point No.2: The next question is regarding the ouster. The doctrine of Nec vi nec claim nec precario has been quoted in the decision reported in Krishnan v. Raman 1986 [KLT Case No.104] . It would only show that the mere non partition of profits or the mere long possession of a portion of the property by itself could not constitute adverse possession. Here is a case that right from 1936 onwards Kunhami had been enjoying the property and that too with the knowledge of her two brothers and subsequently his legal representatives effect a partition of the property hold it specially and assigns a portion of the property in favour of others and the number of documents would itself reveal that the property was going on changing hands and ultimately it had gone to a third party. A.S.No. 332/1994 -8- So right in front of the plaintiff and 1st defendant property has been assigned in favour of the 3rd persons. The question of long possession, non sharing of profits etc. may not militate against co- owner when the property continues to be in the possession of the co-owner. When the property is transferred in favour of strangers and those strangers in pursuance of the document of title does permanent work in the property, that to right in front of the plaintiff and the others, it will certainly amount to holding the property adverse to the interest of the real owners. Therefore the finding of adverse possession of limitation also cannot be said to be wrong. I am conscious of the fact whenever a plea of ouster is pleaded in a suit for partition, necessarily the court should be slow in the same. But when right in front of the person with their knowledge, the possession is held by a party and the person who is said to be entitled to have the right keeps quite for long number of 40-45 years, he has to blame his own fate for the inaction. The finding on the adverse possession or ouster also cannot be said to be unjustified or not proved. So from the facts and circumstances of this case, it is very clear that Kunhami and her legal representatives had been in possession of the property, treating the property as their own and by exercising the right of title by transferring the A.S.No. 332/1994 -9- same. So it has to be held that even if the plaintiff has got any right it is lost by the law of limitation as well. Therefore the findings of the court below do not call for any interference. 9. Point No.3 In the light of findings on points 1 and 2, the judgment and decree of the trial court do not call for any interference. Therefore the appeal lacks merit and it is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN,JUDGE vkm