IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 RSA.No. 170 of 2009() --------------------- AS.92/2007 of D.C. & SESSIONS COURT,KOZHIKODE AS.7/2000 of SUB COURT, QUILANDY .................... APPELLANTS/APPELLANTS/DEFENDANTS 30, 32, 33 & 34 -------------------------------------------------------------------- 1. BHARGAVI AMMA, D/O.KUNHIKRISHNAN KIDAVE, KAYANNA AMSOM, CHERUKAD DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 2. RAMACHANDRAN, S/O.KUNHIKRISHNAN KIDAVE, MALAPPADYKANDY, KOZHUKKALLUR AMSOM, NARAKKOT DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 3. SOBHANA AMMA, W/O.PRABHAKARAN, NARAKKOTTUMCHALI, P.O., VATAYAM, KUTTIADY, VATAKARA TALUK, KOZHIKODE DISTRICT. 4. PRASHOB, S/O.PRABHAKARAN, NARAKKOTTUMCHALI, P.O., VATAYAM, KUTTIADY, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.R.PARTHASARATHY RESPONDENTS/: RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 TO 29, 31 & 35 TO 27 ------------------------------------------------------------------------------ 1. M.V.RAMAKRISHNAN, KIDAVE S/O.LAKSHMI AMMA, EDAKKUDI, KOZHUKKALLUR AMSOM, NITUMPOYIL DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. PADMINI AMMA, D/O.LAKSHMI AMMA, PADMALAYAM HOUSE, KAYANNA AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 3. PREMARAJAN, PADMALAYAM HOUSE, KAYANNA AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 4. MADHUSOODHANAN, PADMALAYAM HOUSE, KAYANNA AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 5. BANUMATHY AMMA, D/O.LAKSHMY AMMA, NOCHOOLIPOYIL THAZHAKUNI HOUSE, KOZHUKKALLUR AMSOM, NIDUMPOYIL DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 6. MONY MOHAN, S/O.BHANUMATHY AMMA, NOCHOOLIPOYIL THAZHAKUNI HOUSE, KOZHUKKALLUR AMSOM, NIDUMPOYIL DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 7. SHAJI MANESH, S/O.BHANUMATHY AMMA, NOCHOOLIPOYIL THAZHAKUNI HOUSE, KOZHUKKALLUR AMSOM, NIDUMPOYIL DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 8. BALAN ALIAS GOPALAN KIDAVE, S/O.LAKSHMI AMMA, KOZHUKKALLUR AMSOM, NARAKOTTU DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 9. GIRIJA AMMA, D/O.LAKSHMI AMMA, NALLUVASSERY HOUSE, MUTAVANCHERY AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 10. MARYANKANDY JANAKI AMMA, W/O.KUNHIRAMAN KIDAVE, KALPATHUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 11. RUGMINI AMMA, D/O.KUNHIRAMAN KIDAVE, KALLUVETTUKUZHIYIL HOUSE, SIVAPURAM AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 12. PANKAJAKSHI AMMA, D/O.KUNHIRAMAN KIDAVE, RAGAM HOUSE, PANANGAD AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 13. PRAMOD, S/O.THANKAMANI AMMA, PUTHANPURAYIL HOUSE, BALUSSERY AMSOM, THURUTHIAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 14. KRISHNANDAN NAMBIAR, S/O.GOVINDAN KIDAVU, KOYERI HOUSE, VELLUR AMSOM, DESOM, P.O.KOTANCHERY (VIA) PURAMERI, VADAKARA TALUK, KOZHIKODE DISTRICT. 15. MOHANAN NAMBIAR, S/O.GOVINDAN KIDAVU, MADATHIL, KOZHUKKALLUR AMSOM, NITUMPOYIL DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 16. SUSHAMA, D/O.GOVINDAN KIDAVU, KOOTATHIL HOUSE, VELLUR AMSOM, DESOM, P.O.KOTANCHERY, PURAMERI, VADAKARA TALUK. 17. NANDAKUMAR NAMBIAR, S/O.GOVINDAN KIDAVU, ERANKIL, BALUSSERY AMSOM, THURUTHIAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 18. SOUMINI AMMA, D/O.NARAYANI AMMA, CHARUPUTHUKULANGARA, VILAYATHOOR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 19. GEETHA AMMA, D/O.SOUMINI AMMA, MANCHALIL HOUSE, KARIYAD AMSOM, DESOM, P.O.KARIYAD NORTH, KANNUR DISTRICT. 20. SHEEJA AMMA, D/O.SOUMINI AMMA, MANCHALIL HOUSE, KARIYAD AMSOM, DESOM, P.O.KARIYAD NORTH, KANNUR DISTRICT. 21. RAJEEVAN KADAVE, S/O.SOUMINI AMMA, CHERUPUTHUKULANGARA HOUSE, VILAYATHOOR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 22. GOPALAKRISHNAN KIDAVU, S/O.NARAYANI AMMA, VADAKKACHALIL, KOZHUKKALLUR AMSOM, NITUMPOYIL DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 23. VASANTHA AMMA, D/O..NARAYANI AMMA, ILLATH HOUSE, PERAMBRA AMSOM, DESOM, P.O.THANDOPARA, KOYILANDY TALUK, KOZHIKODE DISTRICT. 24. GIRISH KUMAR, S/O.VASANTHA AMMA, ILLATH HOUSE, PERAMBRA AMSOM, DESOM, P.O.THANDOPARA, KOYILANDY TALUK, KOZHIKODE DISTRICT. 25. SULOCHANA AMMA, D/O.NARAYANI AMMA, PULLATTEE HOUSE, MANIYUR AMSOM, MUTHUVANA DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 26. SURESAN, S/O.NARAYANI AMMA, VADAKKACHALIL, KOZHUKKALLUR AMSOM, NITUMPOYIL DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 27. OMANA AMMA, D/O.KUNHIKRISHNAN KIDAVU, KOZHUKKALLUR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 28. NARATH PARVATHI AMMA, D/O.KUNHIKRISHNAN KIDAVU, ETAKKULAM AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 29. KARTHIAYANI AMMA, D/O.KUNHIKRISHNAN KIDAVU, KAIPATT HOUSE, KEEZHARIYUR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 30. MEENAKSHI AMMA, D/O.KUNHIKRISHNAN KIDAVU, MAPPALLY, MELUR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 31. SARADA AMMA, D/O.KUNHIKRISHNAN KIDAVU, THIRUVOTH, ARIKKULAM AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 32. VENUGOPALAN KIDAVU, S/O.KUNHIKRISHNAN KIDAVU, KAIPATT, KEEZHARIYUR AMSOM, NADUVATHUR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 33. PADMAVATHY AMMA, D/O.KUNHIKRISHNAN KIDAVU, VELUKKUMPARAMBATH, NOCHAD AMSOM, VELLIYUR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 34. RAVEENDRAN, S/O.KUNHIKRISHNAN KIDAVU, KUTTIVAYALIL, KALPATHUR AMSOM, RAMALLUR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 35. SUSEELA, W/O.RADHAKRISHNAN, CHAKKITTAPARA AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 36. SOORAJ KUMAR, S/O.RADHAKRISHNAN, CHAKKITTAPARA AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 37. RAJESH KUMAR, S/O.RADHAKRISHNAN, CHAKKITTAPARA AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 38. REEJA, W/O.LATE MURALEEDHARAN NAMBIAR, THARAKANDATHIL, ACHUTHA NIVAS, P.O.ATHOLI, KOYILANDY TALUK. 39. JISHNU (MINOR) 16 YEARS, REPRESENTED BY GUARDIAN AND MOTHER 38TH RESPONDENT. 40. MEENU, (MINOR) 15 YEARS, -DO- -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 308 OF 2009 IN R.S.A. NO. 170 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 24.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 170 of 2009 ---------------------------------------- Dated this the 24th day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. 92/2007 on the file of the District Court, Kozhikode which arises from the decree and judgment in O.S. 7/2000 on the file of the Sub court, Koyilandy. The defendant Nos. 30, 32, 33 and 34 are the appellants herein. The plaintiffs 7 in number filed the suit for partition claiming 38/125 shares with mesne profits. The above said defendants contended that the plaint A schedule property is not partible. The trial court passed a preliminary decree and the same was confirmed in appeal by the lower appellate court. The parties hereinafter referred to as plaintiffs and contesting defendants as arrayed in the Suit. 2. The plaint A schedule property is having an extent of 66.5 Cents. It was described as “Malappadi”. This property and other properties were partitioned as per Ext.A1 partition deed of 1939 as per which the plaint A schedule property was kept in common since there was a grave yard, a Karanavar Sankalpam and also the tharawad house. As per the terms of Ext.A1, that property was to be managed by the successive karanavans. Executant No.2 Kunhikrishnana Kidave was managing the property till he died on 14.04.1989. D22 to D34 are his legal R.S.A. No. 170 of 2009 -2- heirs. The legal heirs who are entitled to share in the plaint A schedule property are as per the geneology shown in the plaint B schedule. After the death of Kunhikrishnan Kidave, D28 to D32 were keeping possession of the property for and on behalf of other co-owners including the plaintiffs. Since the request for partition was not headed to, the suit was filed. 3. The 1st defendant filed written statement supporting the case of the plaintiffs. The 1st defendants contended that it is the D28 to D34 who are taking income from the property. So this defendant is not liable for any mesne profits. According to him he is not liable for any mesne profits and has no objection in partitioning the property as prayed for in the plaint. 4. The defendants 28 to 30 and 32 to 34 contended interalia in their joint written statement that the plaintiffs have no manner of right or partible interest over the plaint schedule property The averment in the plaint that the rights of Kunhikrishnan Kidavu devolved on tavazhi, that the rights of Ammalu Amma devovled on D2 to D8, the rights of Kunhikrishnan kidavu devolved on D3 to D5 etc. are also denied. They contended that the right of plaintiffs and the remaining defendants if any are barred by ouster and adverse possession and limitation They also contended that the Kunhikrishnan Kidavu was in possession of the properties till the date of gift in favour of the 28th defendant ( the wife of . Kunhikrishnan Kidavu) and thereafter she was in possession of the property till it was gifted to defendant Nos. 29 to 32 and late Prabhakaran Nair in respect of properties described as item Nos. 1 to 5 int he schedule R.S.A. No. 170 of 2009 -3- to the written statement. .According to the contesting defendants the donees are in separate possession and enjoyment of the property and there is no joint property to be partitioned as claimed. 5. On the side of the plaintiffs Exts A1 to A13 were marked. On the side of the contesting defendants DW1 and DW2 were examined. ExtsB1 to B20 were marked on their side. Exts. C1 to C3 were marked as court exhibits. The contesting defendants produced Exts B21 to B29 at the appellate stage. 6. The plaintiffs asserted that the Kunhikrishna Kidavu was in possession of the property on his behalf and on behalf of other co-owners. But the contesting defendants who are defendants 28 to30, and defendants 32 and 34 who are the wife and children of Kunhikrishna kidavu, contended that the said Kunhikrishnan Kidavu possessed the property as exclusive owner. The plaintiffs produced Ext.A1 partition deed; but the contesting defendants contended that the said partition deed was never acted upon. The trial court held that the said contention is not sustainable in view of the contesting defendants' admission itself in para 2 of their written statement wherein they clearly stated that the plaint schedule property was kept in common, therefore their their version indicates that the partition deed was acted upon. The trial court concluded after referring to Exts.A1 and B1 and DW1's version, that Ext.A1 partition deed was acted upon. 7. The trial court also noted that the oral evidence of DW1 in cross-examination to the effect that his father (Kunhikrishnan kidave) got R.S.A. No. 170 of 2009 -4- right over the plaint A schedule property only as per Ext.A1.The trial court arrived at a conclusion that the Kunhikrishnan Kidavu was given permission to manage the property as per Ext.A1 and that he has got no exclusive right over it to claim that no other co-owner has any right over it. There is no pleading at all r that the defendants are in possession and enjoyment of the property adverse to the others. The trial court also observed that the mere possession over a statutory period is not sufficient to succeed the plea of adverse possession unless it is accompanied by adverse animus. The fact the Kunhikrishnan Kidavu had planted Kuzhikoors in the property also cannot be a ground to hold that he enjoyed the property as his own. Possession of one co-owner is to be treated as possession of other co-owners . It is settled position that mere non- participation in the income of land by a co-owner does not amount to an ouster so as to give title by adverse possession to the other co-owner in possession. In the above circumstances the trial court concluded that the said Kunhikrishnan Kidavu possessed the property on his behalf and on behalf of other co-owners and that he did not get any exclusive title to the property , that since the contesting defendants are his legal heirs , they also would get the right which the Kunhikrishnan kidavu got as per Ext.A1 and that the said right is only for management of the property . 8. The trial court passed a preliminary decree partitioning the property into 125 equal shares and declared that the plaintiffs together are entitled to 38 shares out of 125 with mesne profits. The trial court also declared the shares of the 1st defendant. R.S.A. No. 170 of 2009 -5- 9. The contesting defendants re-agitated all the contentions before the lower appellate court in A.S. 92/2007. The lower appellate court re-appreciated the materials on record and examined the contentions of the contesting defendants. The lower appellate court also considered in detail as to whether the rights of the plaintiffs and other defendants who claimed to be the co-owners was lost by ouster's adverse possession and limitation. The lower appellate court also agreed with the findings of the trial court and held that there is no reason to hold that Kunhikrishnan Kidavu was holding the property exclusively asserting hostile title against other co-owners. 10. The lower appellate court also examined the testimony of DW1 who is the 32nd defendant, Ext.A1 partition deed and Ext.B1 registered gift deed executed by Kunhikrishnan Kidavu in favour of his wife on 30.03.1979 . The lower appellate court also noted the fact that a recital in Ext.B1 to the effect that Kunhikrishnan Kidave was in exclusive possession of the property is not sufficient to establish a plea of ouster against the non- possessing co-owners. After examining Ext.B2 gift deed executed by Ammalu Amma , the wife of kunhikrishnan kidavu mentioned above as per which 11.10 cents of land from out of item No.1 of Ext.B1 was gifted to DW1 , and Exts. B1 to B7 land revenue receipts, held that on the death of Kunhikrishnan kidavu, if the land revenue was paid by Ammalu Amma or her sons that will not in any way affect the rights of the non -possessing co-owners. 11. The lower appellate court also examined the 9 documents R.S.A. No. 170 of 2009 -6- produced by the contesting defendants, out of them the first document is the pattayam dated 23.05.1940 issued by the Malabar Deputy Collector in the name of Kunhikrishnan Kidavu. The lower appellate court held that there is nothing to show that this pattayam is in respect of the plaint schedule property. That apart, even this document would show that the application was filed for issuance of pattayam on the strength of the partition deed. Therefore the pattayam issued would enure to the benefit of all the co-owners who are entitled to get right over the property as per Ext.A1. There is nothing to indicate that it was done in derogation of the right of the respective parties, given or allotted as per Ext.A1. The lower appellate court asserted that even if the said documents were accepted , those documents will not support the contention of the contesting defendants to the effect that Kuhikrishnan Kidavu or thereafter his wife and children were in exclusive possession of the plaint schedule property dehorse the title of other co-owners. 12. The lower appellate court after considering all the evidence on record, facts and circumstances further held that the Kunhikrishnan kidavu or his legal heirs had any time asserted hostile title so as to make the other co-owners know that Kunhikrishnan Kidavu or his wife and children were asserting hostile title, that in the absence of evidence to show that Kunhikrishnan kidavu or his successors-in-interest asserted any hostile title to the suit property to the knowledge of the true owners, their possession cannot be said to be adverse. R.S.A. No. 170 of 2009 -7- The lower appellate also relied on the following decisions before coming to a conclusion. Devaki Pillai Vs Gouri Amma 2003 (1) KLT 421, Naziruddin Vs. Hajirambee 2004 (1) KLT 896, Sarala Vs. Little Flower Mission 2004 (1) short note case No. 58, Annakkutty Vs Xavier 1991 (1) KLT 342 ,Saramma Ittoop and others Vs. kunhamma Kuruvila and others 2006(3) ILR Kerala 272, Sidhiqu Vs. Mohammed K.P.Kutty AIR 1996 SC 1003, Marwari Kumbar Vs. Bhagwanpuri Guru Ganeshpuri 2000 SAR (Civil) 746, Ouseph Vs. Alice 2005 (4) 309, Balakrishnan Vs. Venugopalan 2006 (2) KLT short notes page No. 5 . After relying own the settled principles in the above said decisions the lower appellate court held that the plea of adverse possession thus set up by the contesting defendants was rightly found against by the trial court that the plaint schedule property as set apart in common as per Ext.A1 was held and possessed jointly and as such it is available for partition. The lower appellate court thus confirmed the preliminary decree passed by the trial court . The findings entered by the trial court, confirmed in appeal by the lower appellate court are correct. I do not find any reason to interfere with the judgments and decrees passed by the courts below by invoking Section 100 of the C.P.C. No question of law much less any substantial question of arises for consideration in this appeal This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 170 of 2009 ---------------------------- JUDGMENT 24th June, 2009