IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 RSA.No. 1182 of 2009() ---------------------- RFA.96/2003 of ADDITIONAL DISTRICT COURT (ADHOC)-II, KOLLAM OS.492/1998 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANTS/APPELLANTS/9TH RESPONDENT/DEFENDANTS 3, 6 AND 7 AND LEGAL HEIRS OF THE 4th DEFENDANTS: -------------------------------------------------------- 1. KARTHIYAYANI DEVAKY, PANTHAPPAZHATHU VEEDU, MANAYIL MURI, PANMANA VILLAGE. 2. LAKSHMIKUTTY VALSALAKUMARI, MULLASSERI VADAKKATHIL VEEDU, NAMBARUVIKALA MURI, KARUNAGAPPALLY VILLAGE. 3. INDIRA, PATHIYIL VEEDU, KOLLEPURAM, KARALI JUNCTION, SASTHAMCOTTA. 4. PRADEEP, PATHIYIL VEEDU, KOLLEPURAM, KARALI JUNCTION, SASTHAMCOTTA. 5. PRSANTH, PATHIYIL VEEDU, KOLLEPURAM, KARALI JUNCTION, SASTHAMCOTTA. 6. PRAVEEN, PATHIYIL VEEDU, KOLLEPURAM, KARALI JUNCTION, SASTHAMCOTTA. 7. PADAMNABHAN PEETHAMBARAN, PATHIYIL VEEDU, KOLLEPURAM, KARALI JUNCTION, SASTHAMCOTTA. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS/ RESPONDENTS 1 AND 3 TO 17/PLAINTIFFS 1 AND 3 TO 7/DEFENDANTS 5th AND ADDITIONAL 9th AND 10th : ---------------------------------------------------------------- 1. SIVADASAN ACHARI, KONATHU MEKKATHIL NAMBARUVIKALA MURI, KARUNAGAPPALLY VILLAGE FROM MULLASSERI VADAKKATHIL NAMBARUVIKALA MURI, KARUNAGAPPALLY VILLAGE. 2. GOPALAN ACHARI BALAKRISHNAN, KATTANLAYYATHU PADEETTATHIL, MARUTHORKULANGARA SOUTH MURI, KARUNAGAPPALLY VILLAGE. 3. GOPALAN ACHARI RAJAN ACHARI, RAJ BHAVANAM, MARUTHORKULANGARA SOUTH MURI, KARUNAGAPPALLY VILLAGE. 4. GOPALAN ACHARI SASI, KOLLANTAYYATHU VEEDU, MARUTHORKULANGARA SOUTH MURI, KARUNAGAPPALLY VILLAGE. 5. SHIVANI SOBHANA, THADATHIVILA VEEDU, PADANAYARKULANGARA NORTH MURI, KARUNAGAPPALLY VILLAGE. 6. SHIVANI LATHA, THEKKEVATTATHARA VEEDU, PADANAYARKULANGARA NORTH MURI, KARUNAGAPPALLY VILLAGE. 7. PADMANABHAN DIVAKARAN, D.R.BHAVANAM, PULIYOORVANCHI SOUTH MURI, THODIYOOR VILLAGE. 8. LEKSHMI SUBHADRA, MADATHIL VEEDU, ATHINADU SOUTH MURI, ATHINADU VILLAGE. 9. K.DIVAKARAN ACHARI, KONATHU MEKKETHARAYIL, NAMBARUVIKALA MURI, KARUNAGAPPALLY. 10. D.SASIDHARAN ACHARI, KONATHU MEKKETHARAYIL, NAMBARUVIKALA MURI, KARUNAGAPPALLY VILLAGE. 11. PONNAMMA, MANALI THEKKATHIL VEEDU, KADAPPA MURI, MYNAGAPPALLY VILLAGE. 12. ANILKUMAR, MANALI THEKKATHIL VEEDU, KADAPPA MURI, MYNAGAPPALLY VILLAGE. 13. AJITH KUMAR, MANALI THEKKATHIL VEEDU, KADAPPA MURI, MYNAGAPPALLY VILLAGE. 14. LEELA, MANALI THEKKATHIL VEEDU, KADAPPA MURI, MYNAGAPPALLY VILLAGE. 15. VIJAYALEKSHMI, MANALI THEKKATHIL VEEDU, KADAPPA MURI, MYNAGAPPALLY VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1182 of 2009G --------------------------------------- Dated this 23rd day of November, 2009 JUDGMENT A preliminary decree for partition of the suit property after setting aside Ext.B4, settlement deed No.2139 of 1994 dated 08-08- 1994 executed by defendant No.1 is under challenge in the second appeal at the instance of defendant Nos.3, 6 and 7 and the legal heirs of defendant No.4. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. It is not disputed that the suit property sought to be partitioned originally belonged to the late Velayudhan Achari. Plaintiff No.1 and defendant Nos.1 to 3, Gopalanachari, Kunjukutty and Lekshmi are the children of said Velayudhan Achari. Defendant Nos.4 to 7 are the children of defendant No.1. Velyaudhan Achari got the property as per document No. 3052/1113 M.E. He died on 10th Chingam 1119 M.E. According to the plaintiffs the property devolved on Karthiyayani, wife of Velayudhan Achari and her children. It is their further case that defendant No.1 had executed Ext.B4, settlement deed in favour of defendant Nos.4 to 7 in respect of the suit property which according to them is void since defendant No.1 had no right to to assign the entire property. Therefore they wanted that assignment deed to be set aside and partition of the property effected in the way claimed in the plaint. According to the contesting defendants, the suit R.S.A.No.1182 of 2009 2 property exclusively belonged to defendant No.1 since after the death of Velayudhan Achari, he was in possession of the same to the exclusion of all other legal heirs and thus, by ouster and law of limitation he perfected title over the said property. He executed Ext.B4, settlement deed in favour of defendant Nos.4 to 7 on 08-08- 1994. Learned Munsiff found against the plea of adverse possession and limitation and set aside Ext.B4. The suit property was ordered to be partitioned. First appellate court has confirmed the preliminary decree and hence the second appeal. It is contended by learned counsel that there is evidence of ouster of all other co-owners of the suit property and the courts below went wrong in finding against the plea of adverse possession and raised by the contesting defendants. 3. It is not disputed that defendant No.1 became co-owner of suit property consequent to the death of Velayudhan Achari. Question is whether concurrent finding entered by the courts below against his plea of adverse possession raises any substantial question of law. According to defendant No.1, there was a shed in the suit property where he was residing and in the year 1968 he constructed a tiled house. Ext.B1 is said to be the invitation card for the house warming in the year 1969. Exts.B2 and B3 are receipts for payment of revenue for the suit property from 1977 onwards. Exts.B5 to B10 are also revenue receipts. 4. So far as Ext.B2 is concerned, it is for payment of revenue from the period from 1977 onwards and issued in the name of R.S.A.No.1182 of 2009 3 Padmanabhan, brother of defendant No.1 concerning property comprised in R.S.No.13677 (which is not the suit property). Ext.B3 shows that revenue was paid in the name of the Pattadars (and not in the name of defendant No.1 alone). Exts.B5 to B10 are issued to defendant Nos.4 to 7 after the settlement deed dated 08-08-1994. Assuming that Ext.B4 is an open assertion of hostile title against other co-owners, the suit has been filed in the year 1998. Ouster of co- owners should be by a positive act. There is no case or evidence of such positive act of ouster in the case on hand. The evidence on record according to the courts below was insufficient to hold in favour of plea of adverse possession and limitation. Otherwise, defendant No.1 was not competent to assign the entire property as per Ext.B4. Hence learned Munsiff was correct in setting aside Ext.B4 and ordering partition. The first appellate court has confirmed that finding and preliminary decree. On hearing learned counsel and going through the judgment I find no substantial question of law involved requiring admission of the second appeal. The second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/