IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 SA.No. 34 of 1994(D) & CROSS OBJECTION --------------------------- OS.74/1985 of PRL.MUNSIFF COURT, PALAKKAD AS.176/1989 of I ADDL. DISTRICT COURT, PALAKKAD .................... APPELLANT: APPELLANT/PLAINTIFF ------------------ 1. KUTTA MOOTHAN, S/O. CHAMANNA MOOTHAN, RESIDING AT NELLISSEY GRAMAM, VADAKKANTHARA AMSOM, PALAKKAD TALUK.(DIED) SUPPL. APPELLANT 2 TO 9 ARE IMPLEADED. 2. C.KARTHIANI, WIDOW OF LATE KUTTA MOOTHAN.(DIED)* 3. K.SUBAMANIAN, S/O. LATE KUTTA MOOTHAN. 4. K.CHANDRAN, S/O. LATE KUTTA MOOTHAN (DIED)* 5. K.PARAGU, S/O. LATE KUTTA MOOTHAN 6. K.RAJAN, S/O. LATE KUTTA MOOTHAN. 7. K.KAMALAM, D/O. LATE KUTTA MOOTHAN. 8. K.THANKAM, D/O. LATE KUTTA MOOTHAN. 9. K.PREMA, D/O. LATE KUTTA MOOTHAN ALL ARE RESIDING AT NELLISSERY GRAMAM, VADAKKANTHARA AMSOM, PALAKKAD TALUK. SUPPL. APPELLANT 2 TO 9 ARE IMPLEADED AS PER ORDER DT. 23.7.97 IN CMP/ 1058/1997. SUPPL. APPELLANTS 10 TO 12 LRS OF DECEASED 4TH APPELLANT. 10. GIRIJA WIDOW OF K.CHANDRAN. 11. AISWARYA (MINOR), D/O. LATE CHANDRAN. S.A. NO.34/1994 12. SARANYA (MINOR), D/O. LATE CHANDRAN. (MINOR SUPPLEMENTAL APPELLANTS 11 AND 12 ARE REP.BY THEIR GUARDIAN MOTHER THE 10TH APPELLANT. ALL ARE RESIDING AT NELLISSERY GRAMAM , VADAKKANTHARA AMSOM, PALAKKAD TALUK. SUPPL. APPELLANTS 10 TO 12 IMPLEADED AS LRS OF DECEASED 4TH APPELLANT AS PER ORDER DT. 7.11.07 IIN IA. 1611/04 IN SA. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON RESPONDENTS: RESPONDENTS. DEFENDANTS. ---------------------- 1. RAMA MOOTHAN, S/O. KUNJU MOOTHAN. 2. SUBRAMANIAN, S/O. LATE KUTTA MOOTHAN. 3. CHAMIYAR, S/O. APPAYI MOOTHAN. 4. SETHU, S/O. AYYAPPA MOOTHAN. 5. BALAKRISHNAN, S/O. AYYAPPA MOOTHAN. 6. SUBRAMANIAN, S/O. LATE NARAYANA MOOTHAN.(DIED). RESPONDENTS 1 TO 6 ARE RESIDING AT MOOTHANTHARA, KOPPAM AMSOM, PALAKKAD TALUK. 7. SANTHAKUMARI, W/O. LATE RAJU. 8. HARIHARAN (MINOR) AGED 16 YEARS, S/O. LATE RAJU. 9. SREENIVASAN, (MINOR) AGED 14 YEARS, S/O. LATE RAJU. 10. MADHU(MINOR) AGED ABOUT 11 YEARS, S/O. LATE RAJU. 11. SASI (MINOR) AGED 7 YEARS, S/O. LATE RAJU. RESPONDENTS 7 TO 11 ARE RESIDING AT SIVAJI ROAD, KOPPAM AMSOM PALAKKAD TALUK. MINOR RESPONDENTS 8 TO 1 ARE REP.BY GUARDIAN MOTHER SANTHAKUMARI, THE 7TH RESPONDENT HEREIN. SUPPL. RESPONDENTS 12 TO 18 LRS OF DECEASDED 6TH RESPONDENT. S.A. NO.34/1994 12. BHARGAVI, WIDOW OF SUBRAMANIAN, RESIDING AT 31/572, KALIKOVIL STREET, PALAKKAD. 13. S.NARAYANAN, S/O. LATE SUBRAMANIAN, RESIDING AT 31/78-(1), PATTIKKARA, PALAKKAD. 14. S.HARI, S/O. LATE SUBRAMANIAN, RESIDING AT 33/564, VADAKKANTHARA ROAD, PALAKKAD. 15. S.BHASI, S/O. LATE SUBRAMANIAN, RESIDING AT 31.572, KALIKOVIL STREET, PALAKKAD. 16. S.VIJAYALAKSHMI, D/O. LATE SUBRAMANIAN, RESIDING AT 13/468, THACHANCODDE, KAKKOOR P.O. PALAKKAD. 17. S.KRISHNAVENI, D/O. LATE SUBRAMANIAN, RESIDING AT 8/102, KARNAKI NAGAR, KODUVAYUR P.O., PALAKKAD. 18. S.KALA, D/O. LATE SUBRAMANIAN, RESIDING AT 11/77, KAVILPAD P.O., PALAKKAD. SUPPL. RESPONDENTS 12 TO 18 ARE IMPLEADED AS ADDL. RESPONDENTS FOR THE LRS OF DECEASED 6TH RESPONDENT AS PER ORDER DT. 22/10/07 IN IA. 539/05 IN RSA. BY ADV. SRI.C.P.DAMODARAN NAYAR SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH THIS SECOND APPEAL AND CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 01/01 / 2008 , ALONG WITH SA NO. 824 OF 1993 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. =========================== S.A.824/1993 & S.A.NO.34 OF 1994 & Cross Objection =========================== Dated this the 1st day of January,2008 JUDGMENT Plaintiff in O.S.74/1985 a suit for partition is the appellant in S.A.34/1994. First defendant herein is the appellant in S.A.824/1993. Suit was instituted contending that plaint schedule property originally belonged to Kutta Moothan, son of Chamanna Moothan and he had six sons and out of them Ponnara Moothan and Panda Moothan died issuless and on the death of Kutta Moothan his rights devolved on his sons Chamanna Moothan, Kunju Moothan, Appayi Moothan and Narayana Moothan. Plaintiff is the son of Chamanna Moothan. Kunju Moothan had two sons, first defendant and Kutta Moothan. Second defendant is the son of the said Kutta Moothan. Appayi Moothan had two sons, third defendant and deceased Ayyappa Moothan. Defendants 4 to 6 are the sons of said Ayyappa Moothan. Seventh defendant is the only son of Narayana S.A.824/93 & 34/1994 2 Moothan . Plaintiff and defendants except seventh defendant contended that plaint schedule property is available for partition and on the death of Kutta Moothan, it devolved on his children and as the legal heir of Chamanna Moothan he has 1/4 share and being the legal heir of Kunju Moothan, defendants 1 and 2 together are entitled to 1/4 share and being the legal heirs of Appayi Moothan, defendants 3 to 6 together are entitled to 1/4share and being the sole legal heir of Narayana Moothan, seventh defendant is entitled to the remaining 1/4th share. Partition and separation of the share was sought for. Only seventh defendant contested the suit. He contended that plaint schedule property did not belong to Kutta Moothan and instead the property exclusively belonged to Narayana Moothan who constructed the residential house after the old house was destroyed in a fire in 1961 after obtaining necessary plan and licence and and thereafter seventh defendant have been paying the tax and plaintiff or other defendants are not entitled to claim any share and even if they have S.A.824/93 & 34/1994 3 any right, it is lost by ouster and adverse possession. 2. Learned Munsiff on the evidence of Pws.1 and 2,DWs.1 and 2, Exts.A1 and B1 to B27 and Exts.X1 and X2 dismissed the suit holding that plaintiff or other defendants did not establish that plaint schedule property jointly belonged to them and evidence do not establish that plaint schedule property is available for partition. It was also found that in any case as seventh defendant and his father have been in possession of the property from 1961 asserting their independent right, the right and title of the plaintiff and other defendants, if any, is lost by adverse possession and limitation. Challenging the dismissal of the suit, plaintiff filed A.S.181/1989. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff holding that plaintiff or other defendants did not establish that plaint schedule proprety belonged to Kutta Moothan and it is therefore not available for partition. Learned S.A.824/93 & 34/1994 4 District Judge also found that as the seventh defendant has no case that he is a co-owner, finding of adverse possession is not sustainable. Confirming the judgment of the trial court on other points appeals were dismissed. Plaintiff challenged that appeal in S.A.34/1994. First defendant challenged it in S.A.824/1993. Challenging the reversal of the finding on adverse possession, seventh defendant filed a cross objection. 3. The appeals were admitted formulating the following substantial questions of law. 1. Whether courts below were correct in not deciding the title on the basis of intention as manifested in the subsequent conduct in relation to the property, especially when either parties have no anterior documents? 2. Whether courts below were S.A.824/93 & 34/1994 5 justified in casting the onus of proof on any particular person, when the suit is for partition and all the parties are in the position of plaintiff? 3. Whether courts below were justified in not relying on the boundary shown in Exts.B1 and B2, to decide the question whether plaint schedule property is partible or not? 4. When the seventh defendant did not establish exclusive title to the plaint schedule property, whether courts below were justified in not granting a decree for partition? 4. Learned senior counsel appearing for appellant in S.A.34/1994 and learned counsel S.A.824/93 & 34/1994 6 appearing for appellant in S.A.824/1993 and learned counsel appearing for seventh defendant were heard. 5. The argument of learned senior counsel Sri.V.Chitambaresh and Advocate Sri.V.V.Asokan appearing for the appellants is that when suit is one for partition, all the defendants are in the same footing as that of the plaintiff and seventh defendant did not establish his exclusive title to the plaint schedule property, courts below should have found that plaint schedule property jointly belonged to plaintiff and defendants and is available for partition. It was argued that Exts.B1 and B2 the sale deed and the sale certificate as neighbouring property establish that the property which lies to the east of the property covered under Exts.B1 and B2 is the property of Chamanna Moothan and when the executant of Ext.B1 is not alive, courts below should have relied on the boundary description in Ext.B1. It was also argued that When Ext.B2 is a sale certificate, courts below should have accepted the boundary S.A.824/93 & 34/1994 7 shown in Ext.B2 without any further evidence and especially when seventh defendant did not adduce any evidence as to how his father obtained the property, if not as the legal heir of Kutta Moothan and in the absence of other evidence it should have been found that plaint schedule property is available for partition. Learned counsel also argued that when Ext.A1 birth register establish that PW1, the wife of the plaintiff was given birth to a child at house No.22/78 and it is the building in the plaint schedule property, it should have been found that case of plaintiff and other defendants is true and the property originally belonged to their ancestors and on the death of Kutta Moothan, it devolved on his children and as two of the sons died issuless, courts below should have granted one share each respectively to the legal heirs of the other four sons. Learned counsel also argued that eventhough the birth register extract of two other sons of plaintiff was produced along with an application filed under Rule 27 of Order XL1 of Code of Civil Procedure S.A.824/93 & 34/1994 8 first appellate court was not justified in not passing any order in that application and the documents should have been received as additional evidence and the said documents also establish that plaintiff along with his wife were residing in one portion of the building in the plaint schedule property and it is only as the legal heir of Kutta Moothan and therefore it should have been found that the plaint schedule property is available for partition. It was also argued that courts below in the absence of any other evidence to prove that Narayana Moothan the father of seventh defendant, obtained the plaint schedule property and when no other evidence was adduced, it should have been found that plaint schedule property is available for partition. Sri.Krishna Prasad, learned counsel appearing for contesting seventh defendant argued that even if Exts.B1 and B2 are admitted in evidence and the recitals are relied on, in the light of the pleading and evidence they do not establish that plaint schedule property belonged to Kutta Moothan and on his death it devolved on his S.A.824/93 & 34/1994 9 children and thus available for partition. It was argued that what was pleaded in the plaint was that plaint schedule property belonged to Kutta Moothan and not that it belonged to Chamanna Moothan and on the death of Chamanna Moothan, being the sole legal heir it devolved on Kutta Moothan and therefore available for partition and instead the case was that it was obtained by Kutta Moothan and thus available for partition. Exts.B1 and B2 do not establish that Kutta Moothan had any right over the eastern boundary property. Therefore even according to case of the plaintiff and the other defendants the description on the eastern boundary Exts.B1 and B2 cannot be true. It was argued that as DW1, first defendant deposed that the property was obtained by Kutta Moothan and not by Chamanna Moothan and therefore Exts.B1 and B2 will not be helpful to the plaintiff or other defendants to contend that it is available for partition. Learned counsel also argued that the evidence of DW1 establish Ext.B1 was obtained in 1961 at a time when the father of seventh defendant was S.A.824/93 & 34/1994 10 constructing the residential building after the original building was destroyed in fire and as found by the courts below evidence establish that asserting his independent right Narayana Moothan had constructed the house and has been paying the tax and in such circumstance findings of courts below that plaint schedule property is not available for partition is perfectly correct. It was also argued that Narayana Moothan was only the fifth son of Kutta Moothan and his possession of the plaint schedule property cannot be for and on behalf of the children of Kutta Moothan and in the light of the evidence and pleading, courts below rightly held that plaintiff or other defendants are not entitled to claim any share in the plaint schedule property. 6. As rightly argued by learned counsel Sri.Krishna Prasad, plaint does not show that shares are claimed in the plaint schedule property on the basis that plaint schedule property was the property of Chamanna Moothan and on his death it devolved on Kutta Moothan and being legal heirs, S.A.824/93 & 34/1994 11 plaintiff and defendants are entitled to a share. On the other hand, plaint proceeded on the basis that plaint schedule property belonged to Kutta Moothan, son of Chamanna Moothan and on his death it devolved on his sons as the other two sons died issueless and it is available for partition. There is no case in the plaint that plaint schedule property originally belonged to Chamanna Moothan. Therefore Exts.B1 and B2, even if relied on as canvassed by learned counsel appearing for plaintiff and other defendants, will not help the parties to establish that plaint schedule property is available for partition. PW1,the wife of the plaintiff expressed ignorance not only about acquisition of the property but also regarding the death of the two other sons of Kutta Moothan and whether they died issueless or not. Therefore evidence of PW1 is not at all helpful to decide the question whether parties have a partible right in the plaint schedule property. First defendant when examined as DW1 deposed that plaint schedule property was obtained S.A.824/93 & 34/1994 12 by Kutta Moothan. Plaintiff and other defendants can succeed only on the basis of the case set up that plaint schedule property originally belonged to Kutta Moothan. If that be the case, reference about the eastern property, as the property of Chamanna Moothan in Exts.B1 and B2 will not help to resolve the dispute. If the case of the plaintiff and other defendants is accepted, the reference about the ownership of the property on the eastern boundary could only be a mistake committed while preparing the documents. Moreover on the basis of such a reference about the eastern property owner alone plaintiff or other defendants cannot claim a partible right in the plaint schedule property. There is no other evidence to prove that plaint schedule property belongs to Kutta Moothan and available for partition. 7. Though it was argued that Exts.A1 with Exts.X1 and X2 voters list establish that the house in the plaint schedule property which is 22/78 was in the joint possession of plaintiff and other defendants, as rightly found by courts below from S.A.824/93 & 34/1994 13 Exts.A1 or Exts.X1 and X2 it is not possible to hold that plaint schedule property belongs jointly to the plaintiff or other defendants. True, Ext.A1 shows that one of the children of PW1 was born in 1964 at the house 22/78. But Ext.X1 voters list shows that during 1963 plaintiff and PW1 were residing not in building No.22/78 but 22/77 at that time. On the other hand Ext.X1 shows that seventh defendant and his wife were residing in building No.22/78. Though it was argued that one house was occupied by two families and therefore two building numbers were given to same house, there is no supporting evidence to accept that argument. Ext.X2 voters list for the subsequent period shows that seventh defendant and his wife were residing in house No.22/87 and plaintiff and PW1 were residing in 22/87A. Even if because of the number 87A it could be argued that it is part of one house, it shows that voter No.360 and 361 were residing in building No.22/87B. Neither the plaintiff nor the other defendants have a case that there were three separate families residing in S.A.824/93 & 34/1994 14 house No.22/78 or 22/87. Therefore because of the additional numbers given as 87A or 87B it is not possible to hold that plaintiff was also in possession of the building. Courts below on the evidence rightly found that there is no evidence to prove that plaint schedule property was acquired by Kutta Moothan or it originally belonged to Kutta Moothan so as to be inherited by the sons and be available for partition in between the legal heirs of the children of Kutta Moothan. The documents sought to be received as additional evidence before the final appellate court are two other birth register extracts like Ext.A1. The affidavit filed in support of the application do not satisfy the test provided under Rule 27 of Order XL1 of the Code and hence cannot be received as additional evidence. Even if they are looked into they also did not establish the right claimed by plaintiff or other defendants. 8. The argument of the learned counsel appearing for appellants is that when the seventh defendant did not adduce any evidence to prove the S.A.824/93 & 34/1994 15 acquisition of the property, it is to be found that plaint schedule property is available for partition. True, seventh defendant did not plead how his father obtained the property and did not adduce evidence to prove how seventh defendant or his father obtained title to the property. Learned counsel appearing for appellants also pointed out that when examined as DW2 seventh defendant deposed that the records showing the title to the property was burnt and if that be so, registration copy of the document should have been produced and in the absence of any evidence, case of the seventh defendant that the property belonged exclusively to his father can only be rejected. But for the failure of the seventh defendant as to how his father obtained the property, it is not possible to grant a decree for partition, unless there is evidence to prove that plaintiff and other defendants have a partible right in the plaint schedule property. Even if it is taken that Narayana Moothan the father of seventh defendant did not have any title to the plaint schedule S.A.824/93 & 34/1994 16 property , that will not enable plaintiff or other defendants to claim a share in the plaint schedule property unless it is proved that the property, belonged to Kutta Moothan and thereby all the children of Kutta Moothan had a partible right in the property. The fact that seventh defendant did not establish his independent right by itself will not enable the plaintiff or other defendants to claim a share. In the absence of any other evidence and when evidence establish that father of the seventh defendant constructed the building in 1971 with his own funds and also taking into consideration the fact that he is not the eldest of the sons of Kutta Moothan but the fifth son, as rightly found by first appellate court it is not possible to hold that on the evidence on record that the plaint schedule property jointly belonged to plaintiff or defendants so as to be divided between them. Therefore I find no reason to interfere with the findings of the courts below. When it is found that plaintiff or other defendants have no right in the plaint schedule property, the S.A.824/93 & 34/1994 17 question of adverse possession raised by seventh defendant does not arise. Hence Cross Objection can only be dismissed. Appeals and Cross Objections are dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. ------------------------------------ S.A..NOs.824/93 &34 /94 & CROSS OBJECTION ---------------------------------- JUDGMENT 1ST JANUARY,2008