IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 RSA.No. 404 of 2011 ----------------------------- [AS.NO.120/2006 OF ADDITIONAL DISTRICT COURT, THALASSERY, OS.NO.65/2005 OF PRINCIPAL MUNSIFF'S COURT, KANNUR] .................... APPELLANTS/APPELLANTS/DEFENDANTS: -------------------------------------------------------------- 1. SAROJINI BHASKAR, D/O. RAGHAVAN, 73 YEARS, NO OCCUPATION, SAROJ, GOKALE ROAD, KANNUR -1. 2. VIMALA RAGHAVAN, D/O. RAGHAVAN, AGED 63 YEARS, VIMAL RAG, MANAL, P.O. ALAVIL, KANNUR -8. 3. GIRIJA DEVAN, D/O. RAGHAVAN, AGED 60 YEARS, JAYA NIVAS, BEACH ROAD, PAYYAMBALAM, KANNUR-1. 4. M.N. JAYARAJAN, S/O. RAGHAVAN, 59 YEARS, BUSINESS, SEETHARAM WEAVING, BEACH ROAD, PAYYAMBALAM, KANNUR -1. 5. RAGINI RAVEENDRAN, D/O. RAGHAVAN, 58 YEARS, RISHA NIVAS, BEACH ROAD, PAYYAMBALAM, KANNUR-1. 6. SATHYAVATHY PREMAN, D/O. RAGHAVAN, 48 YEARS, JAYA NIVAS, BEACH ROAD, PAYYAMBALAM, KANNUR. BY ADVS.SRI.M.RAMESH CHANDER, SMT.K.A.SANJEETHA, SRI.ANEESH JOSEPH. RESPONDENT/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- M.N. PAVITHRAN, S/O. ROHINI, 69 YEARS, RETIRED BANK OFFICER, RESIDING AT MANGATTUPARAMBA, KALLIASSERY.P.O – 670 562. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO. 404 OF 2011 ............................................ DATED THIS THE 29th DAY OF MARCH, 2011 JUDGMENT Defendants in in O.S.65 of 2005 on the file of Munsiff Court, Kannur are the appellants. Plaintiff therein is the respondent. Respondent instituted the suit seeking a decree for partition. Plaint schedule property admittedly originally belonged to Raghavan, father of the appellants and the respondent under registered gift deed 2149/1952. Raghavan admittedly executed a gift deed in favour of appellants and the respondent. First appellant would contend that he is entitled to equal share along with other appellants and behind his back, under Ext.B3 partition deed, respondent alone divided the property and as he is not a party to Ext.B3, it is not binding on him and therefore he is entitled to get his share separated. Appellants resisted the suit contending that plaint schedule property is not available for partition as it was divided under Ext.B3. They would contend that respondent had released his rights in respect of the plaint schedule property by executing Ext.B2 agreement dated rsa 404/2011 2 31.1.1973 and on the same day, first appellant had transferred property having more extent than the share due to the respondent in the plaint schedule property, under Ext.B1 and subsequent to Ext.B2 respondent has no right in the plaint schedule property and therefore the properties were divided under Ext.B3 and appellant is not entitled to claim any share. It is also contended that even if respondent has any right, it was lost by ouster and adverse possession. 2. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A3 and B1 to B17 granted a preliminary decree finding that under Ext.B2 agreement, which is an unregistered document, rights of the respondent in the plaint schedule property was not legally released and therefore based on Ext.B2, the share due to the respondent cannot be denied. Learned Munsiff also found that there is no evidence to prove that appellants ousted the respondent and thereby perfected their title by adverse possession. A preliminary decree was passed directing division of the plaint schedule properties into 56 equal shares and for allotment of 8 shares to the respondent declaring that each of the appellants is entitled to 8 such shares. Appellants challenged the rsa 404/2011 3 judgment before District Court, Thalassery in A.S.120 of 2006. Learned Additional District Judge, on reappreciation of evidence, confirmed the preliminary decree and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. Argument of the learned counsel is that Ext.B2 agreement establishes that respondent had released all his rights in the properties covered under gift deed 2149/1952 executed by the father in favour of the children and Ext.B1 gift deed was executed by the first appellant on the same day of execution of Ext.B2 in favour of the respondent and in such circumstances, courts below should have found that respondent has no subsisting right in the plaint schedule properties subsequent to Ext.B2 and therefore he is not a necessary party to Ext.B3 partition deed and as co ownership properties were divided under Ext.B3, suit for partition is not maintainable. Learned counsel also argued that in any case, evidence establish that marriage of 4th appellant was conducted in the plaint schedule property and the residential building was constructed by 4th appellant and appellant and respondent was aware of the partition under Ext.B2 and even if rsa 404/2011 4 respondent has any right it was lost by ouster and adverse possession. 4. Learned counsel made available copies of Exts.B1 to B3. Ext.B1 gift deed was executed by the first respondent in favour of his brother appellant on 31.10.1973. In that registered gift deed, first appellant has traced out the title of the properties transferred thereunder. Ext.B1 shows that property so transferred are absolute properties of the first appellant, though learned counsel appearing for appellant submitted that the said property was purchased by the father in the name of first respondent. If that be the case, first respondent alone cannot transfer that property, as apart from the first respondent and first appellant, all other children of Raghavan should have right in that property. First appellant has no such case. Moreover, Ext.B1 does not show that the said property was purchased by the father in the name of the daughter. Instead, the assertion is that the properties were acquired by the first respondent herself. Though Ext.B2 agreement is seen executed on 31.10.1973 and Ext.B2 shows that the respondent had released his rights in favour of his brothers and sisters, admittedly, Ext.B2 is an unregistered rsa 404/2011 5 agreement. It is not disputed the value of the share of the respondent would exceed Rs.100/-. Hence any release of his rights in the property could only be by a registered document. Therefore, as rightly found by courts below under Ext.B2, respondent cannot release his rights. Hence based on Ext.B2, appellants cannot deny the right of the respondent obtained under the gift deed executed by father in favour of all his children, including the respondent. 5. Though learned counsel appearing for appellant vehemently argued that evidence shows that marriage of the appellant was conducted in the house constructed in the plaint schedule property and respondent participated in the marriage and therefore he should be aware of Ext.B3 partition, for mere participation in the marriage, knowledge of Ext.B3 partition deed cannot be imputed on the respondent. When respondent is having equal right in the plaint schedule property like all the appellants, when respondent is not a party to Ext.B3 partition deed, his rights cannot be defeated based on Ext.B3. 6. The only remaining question is whether the rights of respondent was lost by ouster and adverse possession. Definitely, rsa 404/2011 6 burden is on the appellants to establish ouster and adverse possession. Though Ext.B2 was relied on to prove ouster, being an unregistered document, Ext.B2 cannot be relied on. There is no other evidence except the interested testimony of PW1 to prove the ouster. On the evidence, courts below found that appellants failed to establish the ouster and hence respondent is entitled to get his share separated. That factual finding is in accordance with the evidence on record. I find no substantial question of law is involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk