IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P. BHAVADASAN TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 AS.No. 579 of 2001() -------------------------- OS.101/1993 of SUB COURT, MANJERI .................... APPELLANT: ------------------- HAMSA, S/O.CHOORAPPILAN MUHAMMED, MURAYOOR AMSOM DESOM, ERANAD TALUK. MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT/PLAINTIFF: ------------------------------------- * ASSAN, S/O.VATHAPRAMBAN MUHAMMEDEESAKKUTY, MURAYOOR AMSOM DESOM, ERANAD TALUK, MALAPPURAM DISTRICT. ADDL.R2: THAZHATHE KUNDAN BIYYAKUTTY, WIDOW OF ASSAN MORAYUR (PO), VIA. KOND0TTY, MALAPPURAM DISTRICT. ADDL.R3:- V.P.SUHARA, D/O.ASSAN, KERIHIKUZHIYIL HOUSE, VENJAPPALLY (PO), VIA.KALPETTA, WYNAD DISTRICT. * THE ABOVE ADDL.RESPONDENTS 2 AND 3 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT VIDE ORDER DATED 08.02.2005 IN IA 320/2005. ADDL.R4. V.P.MUHAMMED, S/O. AHAMMEDKUTTY, VATTAPARAMBIL HOUSE, PILAKKAVU P.O, MANANTHAVADY TALUK, WAYANAD DISTRICT. AS.No. 579 of 2001 2 ADDL.R5. V.P.MAMMEESA, S/O.AHAMMEDKUTTY, --DO-- ADDL.R6. V.P.MAJEED, S/O. AHAMMEDKUTTY, THRISSELERY (PO), MANANTHAVADY TALUK, WAYANAD DISTRICT. ADDL.R7. V.P.UMMER, S/O. AHAMMEDKUTTY, VATTAPARAMBIL HOUSE, PILAKKAVU (PO), MANANTHAVADY TALUK, WAYANAD DISTRICT. ADDL.R8. V.P. HAMEED, S/O. AHAMMEDKUTTY, -DO- ** LEGAL REPRESENTATIVES OF THE DECEASED FIRST RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 4 TO 8 AS PER ORDER DATED 12.07.2011 IN IA NO.864/2011. ADV. SRI.R.RAJESH KORMATH SMT.PREETHY KARUNAKARAN SRI.ANISH S.AMBADY SMT.BIJIMOL JOSE SMT.MEENA.A. SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.RAHUL VARMA SRI.V.S.ROBIN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/7/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 579 of 2001 ORDER IN IA NO.864/2011 IN A.S.NO.579/2001 DISMISSED. SD/- 12.07.2011 P.BHAVADASN, JUDGE /TRUE COPY/ P.A.TO JUDGE. P.BHAVADASAN, J. ---------------------------- A.S.No. 579 of 2001 --------------------------------- Dated this the 12th day of July, 2011 JUDGMENT The sole defendant, who suffered a decree for partition in O.S.No.101/1993 before the Sub Court, Manjeri is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff is the son of one Mammeessakutty. The genealogy is furnished in the schedule I-A attached to the plaint. The plaint item II-B schedule property belonged to Mammedeessakutty. His legal heirs are his children plaintiff, Ahammedkutty, Aydrooze, Moideenkutty and a daughter by name Mammeeria. The said Mammeeria died and her rights devolved on her husband and son Muhammad. The plaintiff, Ahammadkutty, Ibrahim and Muhammad assigned their right in favour of the defendant as per a registered deed dated 18.03.1971. Thus defendant got 5/9 shares in the property and the defendant, Ayidrooze and Moideen were co-sharers. The whereabouts of Aydrooze and Moideen were not known for the last so many years, since they have not been heard of for the A.S.No. 579 of 2001 2 last 7 years they may be presumed dead. Therefore, the plaintiff becomes a legal heir and he is entitled to his share in the property. On the basis of these contentions, he laid the suit. 3. The defendant resisted the suit. It is pointed out by him that the plaintiff had no manner of right over the suit property and entire rights the plaintiff and others had been assigned to the defendant under Ext.A1. The defendant had effected improvements in the property and also put up a building therein. He resides in the said building. It is also contended that even if the plaintiff had any manner of right over the suit property, the same had been lost by adverse possession and limitation. He prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised. No oral evidence adduced by the plaintiff and only Exts.A1 to A3 marked from the side of the plaintiff. Defendant had DW1 examined and had Ext.B1 series marked. The trial court on an evaluation of the evidence found that the claim of the plaintiff is tenable and accordingly passed a preliminary decree as follows: A.S.No. 579 of 2001 3 1. That the plaint II B schedule property shall be divided into 9 equal shares, plaintiff is entitled for 4 such shares and defendant is entitled for 5 such shares. 2. That the share of the plaintiff shall be allotted to him. Shares shall be allotted to defendant if court fee is paid. 3. That the plaintiff is entitled for share of mesne profits from defendant, the quantum of which shall be decided at the time of final decree proceedings. 4. Costs shall come out of the estate. 5. That the parties who have paid court fee are entitled to apply for final decree. 5. According to the learned counsel appearing for the appellant, the lower court not correct in decreeing the suit since no vestige of right was left with the legal heirs of the Muhammedeeja after assignment as per Ext.A1. At any rate, according to the learned counsel, the plaintiff, who had surrendered all his rights over the suit property cannot claim as a legal heir of Aydrooze and Moideen who had share over the suit property. It is also pointed out that no oral evidence whatsoever was adduced by the plaintiff and his pleading remain unsubstantiated. The learned counsel also drew attention of this A.S.No. 579 of 2001 4 court to the fact that the entire improvements in the property had been made by the appellant and therefore, even assuming that the plaintiff can seek partition and he is not entitled to mesne profits. It is also contended that the findings of the lower court is regarding adverse possession and limitation is incorrect. 6. The learned counsel appearing for the respondent on the other hand pointed out that a reading of Ext.A1 will show that rights of the persons whose whereabouts are not known namely Aydrooze and Moideen had not been assigned. It is clear from a reading of Ext.A1 that what was assigned were the rights, which the other co-sharers had over the suit property. Attention was drawn to the written statement wherein it is conceded that the whereabouts of Aydroose and Moideen were not known for last 50 years. When that fact is admitted there was no necessity to adduce evidence in that regard. The learned counsel went on to contend that the status of the parties is that of co-owners and unless there is evidence on ouster of a co-owner, plea of adverse possession and limitation cannot be sustained. In short, the contention is that there are no grounds to interfere with the A.S.No. 579 of 2001 5 judgment and decree of the trial court. 7. The fact that Mammadeesakutty had 5 children ie, four son and one daughter is not disputed. The evidence clearly shows that in pursuance to the Ext.A1 deed of sale, the possession of the property was taken by the defendant and he had made improvements therein. It is not disputed that the plaint schedule property originally belonged to one Mammadeesakutty who died leaving his four sons and one daughter and later legal heirs of Mammadeesakuty except his sons Aydrooze and Moideen assigned their right in the property in favour of the defendant as per Ext.A1. 8. There is nothing to show that the rights of the two persons namely Aydrooze and Moideen whose whereabouts were not known were assigned to the defendant and their rights have devolved on the defendant. If that be so, going by Sections 107 and 108 of Indian Evidence Act, if a man is unheard for the last 7 years by the relatives and friends, there is a presumption that he is no more. In that situation, the burden is on the person who claims that unheard person was alive to establish that fact. The A.S.No. 579 of 2001 6 defendant though says that the two persons are alive did not establish that fact. 9. Even though there is a contention in the written statement that the rights if any of the plaintiff is lost by adverse possession and limitation, unfortunately, there is no evidence in support of the same. The necessary ingredients to attract adverse possession and limitation are not spoken to by DW1 at the time of evidence. Therefore, the pleadings are not supported by the evidence. As regards the mesne profit is considered, the evidence shows that the entire improvements had been made by the defendants after the assignment. If that so, the plaintiff is not entitled to mesne profit. The quantum of future mesne profit is to decided at the final decree stage. 10. It is also pointed out by the learned counsel for the appellant that a building has been put up in the property and as far as possible the portion of property where the building stand to be allotted to defendant. It seems to be a reasonable prayer. There is no reason to reject this prayer while confirming the preliminary decree passed by the courts below regarding the A.S.No. 579 of 2001 7 shares, it is made clear that in equity as far as possible the portion of the property where the building stand shall be allotted to the defendant. The appeal is disposed of as above. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln