IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 RSA.No. 1049 of 2007(G) ----------------------- AS.536/2003 of ADDL.DISTRICT COURT, THRISSUR OS.1650/2001 of I ADDL.M.C.,THRISSUR .................... : 2ND APPELLANTS/APPELLANTS/DEFENDANTS ----------------------------------------------------- 1. MARY THOMAS, W/O.LATE KAVALAKKATT THOMAS RESIDING AT CHALISSERY STREET, KURIACHIRA DESOM, THRISSUR TALUK. 2. K.T.JOBY, S/O.LATE KAVALAKKAT THOMAS, RESIDING AT ST.THOMAS NAGAR, ARANATTUKARA VILLAGE, THRISSUR TALUK. 3. K.T.JOSE, S/O.LATE KAVALAKKATT THOMAS, RESIDING AT SREE RAMAKRISHNA NAGAR, PUTHURKKARA DESOM, PULLAZHY VILLAGE, THRISSUR TALUK. 4. K.T.FRANCIS, S/O.LATE KAVALAKKATT THOMAS KURIACHIRA DESOM, THRISSUR TALUK. 5. K.T.JESSY, D/O.LATE KAVALAKKATT THOMAS, W/O.SHAJAN, RESIDING AT ARIMBUR MUTHUPEEDIKA VEETTIL, VALLACHIRA DESOM, OORAKAM VILLAGE, THRISSUR TALUK. 6. K.T.TESSY, D/O.LATE KAVALAKKATT THOMAS, W/O.CHAZHOOKARAN SHAJAN, PERUMBILLYSSERY DESOM, CHERPU VILLAGE,THRISSUR TALUK. 7. K.T.BINDU, D/O.LATE KAVALAKKATT THOMAS, W/O.MEPPULLY DENNY, KAIRALI ROAD, ANCHERY DESOM, OLLUR VILLAGE, THRISSUR TALUK. 8. K.T.BIJU, S/O.LATE KAVALAKKATT THOMAS, CHALISSERY STREET, KURIACHIRA VILLAGE, THRISSUR TALUK. 9. K.T.JULEE, D/O.LATE KAVALAKKATT THOMAS, CHALISSERY STREET, KURIACHIRA VILLAGE, THRISSUR TALUK. 10. K.T.ANTONY, S/O.LATE KAVALAKKATT THOMAS, CHALISSERY STREET, KURIACHIRA VILLAGE, THRISSUR TALUK. (APPELLANTS 1 TO 3 AND 5 TO 10 ARE REP.BY THEIR POWER OF ATTORNEY 4TH RESPONDENT AS PER POWER OF ATTORNEY REGISTERED AS DOCUMENTS NOS. 255/03 AND 364/04 OF TRISSUR SRO). BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE RESPONDENTS: RESPONDENTS/PLAINTIFFS ------------------------------------------------- 1. FRANCIS, S/O.KAVALAKKATT JOSEPH CHIYYARAM VILLAGE, DESOM, THRISSUR TALUK, NOW WORKING IN CATHOLIC SYRIAN BANK LTD., PARUNA, CHANGANASSERY, KOTTAYAM DIST. 2. LISSY, W/O.KAVALAKKAT JOSEPH, CHIYYARAM VILLAGE, DESOM, THRISSUR TALUK. 3. SHERLY, D/O.KAVALAKKAT JOSEPH, CHIYYARAM VILLAGE, DESOM, THRISSUR TALUK. 4. VARGHESE, S/O.KAVALAKKAT JOSEPH, CHIYYARAM VILLAGE, DESOM, THRISSUR TALUK. 5. ANTO, S/O.KAVALAKKAT JOSEPH, CHIYYARAM VILLAGE, DESOM, THRISSUR TALUK. 6. DEVASSY, S/O.KAVALAKKATT KURIAPPAN CHIYYARAM VILLAGE, DESOM, THRISSUR TALUK, NOW RESIDING AT KAVALAKKATT HOUSE, FATHIMA ROAD, KOTTEKKAD, TRICHUR-13. 7. MARY, W/O. KAVALAKKATT KURIAPPAN, CHIYYARAM VILLAGE, DESOM, THRISSUR TALUK. 8. SHAJU, S/O.KAVALAKKATT KURIAPPAN, CHIYYARAM VILLAGE, DESOM, THRISSUR TALUK. 9. MARGALI, W/O.LATE KAVALAKKATT ANTONY, CHIYYARAM VILLAGE, DESOM. 10. ROSILY, D/O.KAVALAKKATT ANTONY AND MARGALI, CHIYYARAM VILLAGE, DESOM. 11. FRANCIS, S/O.KAVALAKKATT ANTONY AND MARGALI, CHIYYARAM VILLAGE, DESOM. 12. K.A.JOSE, S/O.KAVALAKKATT ANTONY AND MARGALI, CHIYYARAM VILLAGE, DESOM, NOW WORKING AT GOD MORNING AGENCIES MISSION QUARTERS, THRISSUR. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO.1049 OF 2007 =========================== Dated this the 6th day of February, 2008 JUDGMENT Defendants in O.S.1650/2001 on the file of Additional Munsiff Court, Thrissur are the appellants. Respondents are the plaintiffs. A preliminary decree for partition and division of plaint schedule property into five equal shares and allotment of one share together to plaintiffs 1 to 5, one share to sixth plaintiff, one share together to plaintiffs 7 to 8 and one share together to plaintiffs 9 to 12 and one share together to appellants were granted. Appellants challenged the judgment before District Court, Thrissur in A.S.536/2003. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for appellants was heard. R.S.A.1049/2007 2 3. The only substantial question which according to appellants which is involved in the appeal is on adverse possession. 4. Learned counsel appearing for appellants was heard. 5. Learned counsel argued that courts below did not properly appreciate the evidence and when evidence establish that plaintiffs were excluded from possession and deceased Thomas has been in exclusive possession and enjoyment of the property, it should have found that right of the plaintiffs is barred by adverse possession and limitation and therefore plaint schedule properties are not available for partition. 6. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 7. Plaint schedule properties were acquired under Ext.A1 and A2 title deeds. They prove that properties were acquired by five brothers jointly. They are Joseph, Thomas, Varghese, Antony and to the respondent. Appellants are legal heirs of deceased Thomas. Respondents 1 to 5 are legal R.S.A.1049/2007 3 heirs of deceased Joseph. Respondents 7 and 8 are legal heirs of deceased Varghese. Respondents 9 to 12 are legal heirs of deceased Antony. Thomas is admittedly a co-owner along with the plaintiffs. Being a co-owner possession of Thomas can only be for and on behalf of the other co-owners. The right of other co-owners could be lost by adverse possession only they were ousted to their knowledge. In order to claim adverse possession as against other co-owners there should be pleading that there was an ouster to the knowledge of other co-owners. In the written statement there is no plea of ouster or adverse possession. Evidence also did not establish that deceased Thomas or appellants have been in exclusive possession of the property and that too adverse to the other co- owners. I find no substantial question of law involved in the appeal. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- R.S.A.1049/2007 4 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006