IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 RSA.No. 816 of 2011(E) ---------------------- AS.80/2009 of SUB COURT,NEYYATTINKARA OS.726/2006 of II ADDL.M.C.,NEYYATTINKARA .................... APPELLANT/APPELLANT/1ST DEFENDANT ------------------------------------------------------------------ A.NAZIR, AGED 42, S/O. ABDUL KARIM, KADAYARAVILAKATHU VEEDU, NEAR MARKET, BALARAMAPURAM, KOTTUKAL VILLAGE. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 TO 10 ----------------------------------------------------------------------------------------------------- 1. BEEMA BEEVI, D/O. SABIA BEEVI, AGED 50, MILAD MANZIL, KALLAMBALAM. 2. REMLA BEEVI, D/O. SABAI BEEVI, AGED 31, RESIDING AT TC 53/2048, S.R.COTTAGE, PONUMANGALAM, UPARIYOOR DESOM, NEMOM VILLAGE. 3. SAIFUDDIN, S/O. ABDUL KHARIM, AGED 45, KADAYAM VILAKATHU VEEDU, NEAR MARKET, BALARAMAPURAM. 4. SALIM, S/O. ABDUL KHARIM, RAJAN MANZIL, VATTAVILA, VIZHINJAM. 5. LATHEEF, S/O. ABDUL KHARIM, SHEMIN MANZIL, THOPPIL, PALLICHAL DESOM. 6. SABITHA BEEVI, D/O. SABIYA BEEVI, SAMEER MANZIL, ERAVANTHOOR DESOM, MARANALLOOR VILLAGE. 7. THAHIRA BEEVI, D/O. SAFIYA BEEVI, AJITHA MANZIL, KANDALA, ARAMANOOR DESOM, KULATHUMMAL VILLAGE. 8. ABDUL SALAM, S/O. MEERA SAHIM, SAMIN MANZIL, THOPPIL, PALLICHAL DESOM. 9. SAMIN, S/O. ABDUL SALAM, AGED 17, (MINOR OF -DO-) 10. SHAHANA, D/O. ABDUL SALAM, AGED 21 OF -DO- 11. SHAN, S/O. ABDUL SALAM, AGED 21 OF -DO- ADV. SRI.B.KRISHNA MANI FOR CAVEATOR ADV. SRI.B.KRISHNA MANI FOR R2- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 816 OF 2011 =========================== Dated this the 25th day of June,2011 JUDGMENT First defendant in O.S.726/2006 on the file of II Additional Munsiff Court, Neyyattinkara is challenging the preliminary decree for partition as confirmed by the Sub Judge, Neyyattinkara in A.S.No.80/2009. The plaint schedule property is 1 1/2 cents which admittedly originally belonged to the mother and father of the appellant. Under Ext.A1 gift deed the mother Safiya Beevi obtained one cent and under Ext.A2 mortgage deed Abdul Karim the father obtained 1/2cent. The suit was filed for partition and separation of the share due to the plaintiffs. Plaintiffs, defendants 1 to 6 and late Shameela Beevi are their children. Defendants 7 to 10 are the legal heirs of Shameela Beevi. The plaintiffs sought R.S.A.816/2011 2 separation of 2/13 shares contending that on the death of the parents the property devolved on the children and it is available for partition. Appellant though filed a written statement admitting that the property belonged to the parents contended that 20 years back he joined his father in the business and after four years he was conducting the business alone and therefore the right of other legal heirs was lost by ouster and adverse possession, he remained absent and was set ex parte. Though defendants 5 and 6 raised a counterclaim and resisted the suit, they also remained ex parte. The learned Munsiff passed a preliminary decree directing division of the property and allotment of 2/13 shares to the plaintiffs. Appellant challenged the judgment before Sub Court, Neyyattinkara in A.S.80/2009. Learned Sub Judge on reappreciation of the evidence confirmed the preliminary decree and dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for the appellant was heard. R.S.A.816/2011 3 3. The argument of the learned counsel is that O.S.702/2006 and 933/2006 were jointly tried and appeals filed against those judgments are pending before the first appellate court and even if the defendants were set ex parte, learned Munsiff should not have passed a preliminary decree without considering the question whether the plaint schedule property is available for partition and whether the right of the plaintiffs was lost by adverse possession and limitation. It is argued that as the question was not considered by the learned Munsiff and the first appellate court the preliminary decree is to be set aside. 4. The fact that the plaint schedule property belonged to the parents is not only not disputed but admitted by all the parties. Both the parents died intestate. On their death the property would definitely devolve on all the parties in accordance with the law of inheritance. The appellant is not disputing the share allotted to the parties. But he is only contending that the plaint schedule property is not available for R.S.A.816/2011 4 partition. According to appellant, the property though originally belonged to the parents was in the exclusive possession of the appellant and therefore the right of the co-owner was lost by ouster and adverse possession. The burden to prove that the right of the other co-owners was lost by ouster and adverse possession is definitely on the person who alleges that fact. When the appellant did not adduce any evidence and in fact remained ex parte before the learned Munsiff, on the materials available it cannot be said that the right of the co-owner has been lost by ouster and adverse possession as canvassed by the appellant. If the case of the appellant is that he did not get opportunity to adduce evidence as there are sufficient cause for his failure to appear before the trial court, when the suit was taken up, remedy of the appellant was to approach the trial court as provided under Rule 13 of Order IX of Code of Civil Procedure. Eventhough an appeal will lie against an ex parte decree, it can be challenged only on the materials available. When the R.S.A.816/2011 5 materials available establish that the property jointly belonged to the parents and devolved on the legal heirs and the appellant is contending that by ouster and adverse possession the rights of the other co-owners was lost and he did not adduce any evidence, the preliminary decree cannot be interfered. Learned counsel argued that in any case the suit is bad for partial partition as the suit properties in O.S.702/2006 and O.S.933/2006 are also available for partition. When the appellant and respondents are tenants in common, I find that the suit is not bad for partial partition. As no substantial question of law is involved in the appeal, It is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006