IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 SA.No. 814 of 1996() ------------------------------ AS.89/1993 of IV ADDL. DISTRICT COURT, ERNAKULAM OS.805/1987 of PRL.MUNSIFF COURT,ERNAKULAM .................... APPELLANT(S): RESPONDENT IN AS. /DEFENDANTS IN OS. ---------------------- 1. POULI, W/O. VARUTHUKUTTY, AGED ABOUT 66 YEARS, POZHAMANGALATH HOUSE, VADUTHALA, CHERANELLUR,KOCHI 23. 2. THRESSIAKUTTY, W/O. DEVASSYKUTTY, AGED ABOUT 61 YEARS, KOOLIATH HOUSE, KORAMPADOM, P.O.KOTHAD, KADAMAKUDY VILLAGE, KANAYANNUR TALUK. 3. JOLLY ELIAS ELEESWA, AGED 50, D/O. POZHAMANGALATH VARUTHUKUTTY AND WIFE OF GEORGE, PANDARAPARAMBIL, CHILAVANNUR DESOM, ELAMKULAM VILLAGE. 4. ANTONY, AGED 48, S/O. POZHAMANGALATH VARUTHUKUTTY, VADUTHALA DESOM, CHERANELLUR VILLAGE. 5. ALPHONSA ALIAS LAIZAMMA, AGED 42, D/O. POZHAMANGALATH VARUTHUKUTTY AND W/O. FRANCIS, UZHUNNUMKATTIL, VADUTHALA DESOM, CHERANELLUR VILLAGE 6. THOMAS, AGED 40 YEARS, S/O. POZHAMANGALATH VARUTHUKUTTY, WINGSTON COTTAGE, NEAR OUR LADY OF HOPE CHURCH AZHEEKAL P.O., VYPEEN 682 510, VYPEENKARA ELAMKUNNAPUZHA VILLAGE. 7. FRANCISCA ALIAS FRENCHY, AGED 37 S/O. POZHAMANGALATH VARUTHUKUTTY, NEAR LOURD HOSPITAL, PACHALAM, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE. S.A. NO.814/1996 8. MARGRET ALIAS SOBHINA, AGED 36, D/O. POZHAMANGALATH VARUTHUKUTTY AND W/O. JOSEPH THARAMEL HOUSE, VADUTHALA DESOM CHERANELLUR VILLAGE. 9. MARIUM ALIAS MARYKUNJU, AGED 33, D/O. POZHAMANGALATH VARUTHUKUTTY, THEVARA DESOM, ELAMKULAM VILLAGE. 10. JOSEPH ALIAS PAPPACHAN, AGED 32, S/O. POZHAMANGALATH VARUTHUKUTTY, VADUTHALA DESOM, CHERANELLUR VILLAGE. 11. RAPHEL ALIAS BABACHAN, AGED 30, S/O. POZHAMANGALATH VARUTHUKUTTY , VADUTHALA DESOM, CHERANELLUR VILLAGE. 12. SEBASTIAN ALIAS SABU, AGED 28, S/O. POZHAMANGALATH VARUTHUKUTTY VADUTHALA DESOM, CHERANELLUR VILLAGE. 13. MARY ALIAS BELINTA, AGED 24, D/O.POZHAMANGALATH VARUTHUKUTTY, AND W/O. FRANCIS, CHEMNAYATH, NEAR FATHIMA CHURCH, CHILAVANNUR DESOM, ELAMKULAM VILLAGE. 14. STELLA, AGED 21, D/O. POZHAMANGALATH VARUTHUKUTTY VADUTHALA DESOM, CHERANELLUR VILLAGE. BY ADVS.MR.P.K.JOSE MR.JOHNSON ABRAHAM MR.K.J.VINCENT PIOUS RESPONDENT(S): APPELLANTS IN AS. /ADDL. PLAINTIFFS 2 TO 11. ------------------------- 1. PAUL, AGED 56, S/O. OUSO, POZHAMANGALATH HOUSE, VADUTHALA DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. S.A. NO.814/1996 2. ANNAKUTTY JOSEPH, AGED 54, D/O. OUSO, RESIDING AT POZHAMANGALATH HOUSE, VADUTHALA DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 3. ELSY RAPHEL, AGED 51, D/O OUSO, POZHAMANGALATH HOUSE, VADUTHALA DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 4. GEORGE, AGED 47, S/O. OUSO , POZHAMANGALATH HOUSE, VADUTHALA DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 5. VICTORY EALLIAS, AGED 44, D/O. OUSO, POZHAMANGALATH HOUSE, VADUTHALA DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 6. JUSY ANTONY, AGED 41, D/O. OUSO, POZHAMANGALATH HOUSE, VADUTHALA DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 7. MARY JACOB, AGED 38, D/O. OUSO , POZHAMANGALATH HOUSE, VADUTHALA DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. 8. ANDREWS, AGED 36, S/O. OUSO, POZHAMANGALATH HOUSE, VADUTHALA DESOM CHERANELLUR VILLAGE, KANAYANNUR TALUK. 9. THRESA PUSHPI, AGED 29, D/O. OUSO, POZHAMANGALATH HOUSE, VADUTHALA DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK. *10. PHILOMINA @ VILAMAKUTTY, AGED 73, W/O. OUSO , POZHAMANGALATH HOUSE, VADUTHALA DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK.( D I E D) *IT IS RECORDED THAT R10 DIED and R1 TO R9 ARE THE LEGAL REPRESENTATIVE OF R10 AS PER ORDER ON MEMO C.F. NO.7373/08 DT. 27.2.2008. R1 TO R9 BY ADV. MR.C.RAGHAVAN MR.V.G.SURESH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON 06/04/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 814 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2010. JUDGMENT The defendants in O.S.805 of 1987 are the appellants. They suffered a decree for partition. The parties and facts are hereinafter referred to as they were available before the trial court. 2. The plaintiff instituted a suit for partition. According to the original plaintiff, himself, the deceased husband of the first defendant and the second defendant were in joint possession and enjoyment of plaint schedule property. It belonged to their father and consequent on his death it devolved on them. Till 1952 all of them were residing together. Thereafter the plaintiff claimed that he constructed a house of his own and shifted to that house. He was employed in Tata Oil Mills. The first defendant is the wife of the deceased brother of the plaintiff and others are their children. The S.A.814/996. 2 second defendant was given in marriage in 1944 itself. It is claimed that the plaintiff was in joint possession of the property along with one Varuthukutty, the predecessor in interest of the defendants. Till the death of Varuthukutty, he was getting his share of income. He does not wish to continue in joint possession. Thus the suit. 3. It was the first defendant who mainly resisted the suit. She set up an oral partition and contended that the house was renovated by her husband in 1968 by spending Rs.10,000/-. He was also employed in Tata Oil Mills. The plaintiff had left the house in 1944. She makes mention of the arrangement by which the share of the plaintiff was given to him and she denied that the plaintiff was in possession with the defendant. Claiming that the property exclusively belongs to the defendants, she prayed for a dismissal of the suit. 4. During the pendency of the suit, the plaintiff died and his legal heirs were brought on the party array. S.A.814/996. 3 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and Exts.A1 to A4 from the side of the plaintiffs. The first defendant examined herself as D.W.1 and had Exts.B1 series and B2 marked. The trial court on a consideration of the materials before it accepted the contentions put forward by the defendants and dismissed the suit. The plaintiffs took up the matter in appeal as A.S.89 of 1993. The appellate court disagreed with the trial court and reversed the judgment and decree of the trial court and decreed the suit. 6. During the pendency of the Second Appeal before this court the first respondent died and since his legal heirs are already on the party array, death was recorded. 7. Learned counsel appearing for the appellants contended that the lower appellate court was not justified in reversing the judgment and decree of the trial court. The trial court found that the oral partition set up by the defendants is true and that the plaintiff has not been able to S.A.814/996. 4 explain his absence and therefore it is presumed that there was an oral partition. It was pointed out by the learned counsel that the specific contention of the defendants that the plaintiffs had been allotted another plot was found to be true by the trial court and there was no justification in the first appellate court holding otherwise. 8. Learned counsel for the respondents on the other hand found that the very contention of oral partition cannot be accepted because it is said to have been effected during the lifetime of the father of the original plaintiff and the husband of the first defendant. It is an admitted fact that the property belonged to the father of these persons. If so, during his lifetime the plaintiff and the husband of the first defendant could not have derived any right and could not say that there was an oral partition. Learned counsel also pointed out that there were several documents which had been executed by the plaintiff and the first defendant subsequent to the alleged oral partition and that would show that the oral partition set up is false. Learned counsel S.A.814/996. 5 stressed that the first appellate court has considered these aspects in considerable detail and came to the conclusion that the oral partition cannot be accepted. According to learned counsel, no grounds are made out to interfere with the judgment and decree. 9. A reading of the judgment of the trial court indicates that it mainly proceeded on the basis that since the first plaintiff was residing separately, he is bound to explain as to when he had demanded share of the properties on the death of their father. The lower court says that two of the documents were not marked and a presumption was drawn by the court below. This approach of the trial court, it must be said that there is no sanction of law. 9. As rightly pointed out by the learned counsel for the respondents, since the property belonged to the father of the original plaintiff and late husband of the first defendant, during his life time it could not have been partitioned. The property will devolve on the first defendant only on the death of father. The claim of the first defendant S.A.814/996. 6 that there was oral partition during the lifetime of the father of the original plaintiff and her husband makes the story of oral partition very suspicious. The father of the plaintiff and the husband of the first defendant died on 26.2.1964. The specific contention put forward by the defendants was that as a result of the oral partition in the year 1944, the plaintiff was given the value of his share in cash by three instalments by Varuthukutty. She claimed that for the said purpose the property had been mortgaged. Except the self interested testimony that the property had been mortgaged to raise funds to pay off the original plaintiff, there was nothing to prove the said fact. In fact Ext.A4 mortgage deed produced before the court below shows that it was executed by both Varuthukutty and the original plaintiff. Though an explanation is offered by the first defendant that it was so done due to the insistence of the Church authorities, it does not carry conviction. It must be remembered that the defendants had no case that the property was mortgaged in 1966 and they rely on an mortgage deeds said to have been S.A.814/996. 7 executed in 1953, 1967 and 1977 and already noticed those documents have not been produced. 10. If as a matter of fact, there was an oral partition and the plaintiff was given another item of property, when the plaintiff laid the suit contending that they were in joint possession of the property left behind by the father, if the oral partition is true, the defendants would have raised the contention that the suit is bad for partial partition. That is also not seen taken. It is not the case of the defendants that the property was settled in favour of her two sons. Lower appellate court has also noticed that D.W.1 was unable to give details regarding the oral partition. At one stage she stated that the plaintiff was given a separate share, in another portion it is stated that he was paid off his share. 11. Considering the above facts, the appellate court came to the conclusion that the oral partition set up cannot be true. That finding does not suffer from any infirmities. S.A.814/996. 8 12. Plea of adverse possession and limitation is also seen raised. It is well settled that if a co-owner claims adverse possession, it is for him to prove his claim. Clear ouster of the other co-owners is not established. Mere non- receipt of income will not be sufficient to show that there has been an ouster. There is no specific plea in the written statement to that effect at all. It is also not possible to understand from the written statement as to when the adverse possession began. Lower appellate court has referred to several decisions on this aspect and came to the conclusion that the plea of adverse possession and limitation cannot be accepted. That finding also does not suffer from any error. The result is that this appeal is without merits and it is liable to be dismissed. I do so. Considering the facts and circumstances, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.