IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 RSA.No. 670 of 2008() --------------------- AS.47/2006 of ADDL.SUB COURT, ALAPPUZHA OS.340/2003 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANTS/DEFENDANTS 5 & 6: ------------------------------------------------ 1. PURUSHOTHAMA KAIMAL, S/O.NARAYANA PILLAI, VALUPARAMBIL PADINJARE MURI, KARUMADI VILLAGE, AMBALAPPUZHA P.O. 2. SUMANGALA, W/O.PURUSHOTHAMA KAIMAL, VALUPARAMBIL PADINJARE MURI, KARUMADI VILLAGE, AMBALAPPUZHA P.O. BY ADV. SRI.M.P.MADHAVANKUTTY SRI.GOKUL DAS V.V.H. RESPONDENTS: RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 4: --------------------------------------------------------- 1. PUSHPALEKHA, D/O.RAJAMMA, KOCHUVEETTIL, KARUNALAYAM, PADAHARAM MURI, THAKAZHI VILLAGE, THAKAZHI P.O., REPRESENTED BY SIVARAJAN NAIR, S/O.KARUNAKARAN NAIR, KARUNALAYAM, PADAHARAM MURI, THAKAZHI VILLAGE, THAKAZHI P.O. 2. SEETHALAKSHMI AMMA, D/O.KAMALAKSHI AMMA, KOCHUVEETTIL, AMAYIDA MURI, KARUMADI VILLAGE NOW RESIDING AT KALATHOOR HOUSE, MANAPPALLY SOUTH, S.R.P.MARKET P.O., THAZHAVA (VIA), KARUNAGAPPALLY. 3. RAJALAKSHMI AMMA, D/O.KAMALAKSHI AMMA, KOCHUVEETTIL, AMAYIDA MURI, KARUMADI VILLAGE, NOW RESIDING AT ARCHANA (KELATHOOR), MANAPPALLY SOUTH, S.R.P.MARKET P.O., THAZHAVA (VIA), KARUNAGAPPALLY. 4. SANTHAKUMARI AMMA, W/O.BHASKARAN, PALLATHU HOUSE, AMAYIDA, AMBALAPPUZHA. ADV. SRI.B.GOPAKUMAR FOR R1 SMT.CHINCY GOPAKUMAR FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- R.S.A.No.670 of 2008 ------------------------------------- Dated this the 31st day of July, 2009 JUDGMENT The defendants 5 & 6 in O.S.No.340 of 2003 on the file of the Additional Munsiff’s Court, Alappuzha are the appellants. The appeal is directed against the judgment and decree in A.S.No.47of 2006 on the file of the Additional Sub Court, Alappuzha. The first respondent as plaintiff filed the suit for partition and separate possession. The trial court decreed the suit and preliminary decree was passed declaring that the plaintiff is entitled to 2/5th share. The appellants herein preferred the first appeal A.S.No.59 of 2006. The decree was confirmed. Hence, this second appeal. The parties are arrayed as plaintiff and defendants as in the suit. 2. It is the plaintiff’s case that the members of the family effected a partition vide deed No.1216 wherein B schedule property was allotted to the sakha of plaintiff’s grand mother, Muthumma. Plaintiff is the grand daughter of Muthumma. The plaintiff is the daughter of one Rajamma who is the daughter of Smt.Muthumma. The plaintiff’s claim is that she is entitled to R.S.A.No.670 of 2008 2 2/5th share in the plaint schedule property. The defendants 5 and 6 who are appellants herein contested the suit. The other defendants remained absent. The appellants are claiming title over the entire property on the basis of 2 sale deeds executed by defendants 1 to 4. They further contended that neither the plaintiffs nor their predecessors had obtained joint possession or co-ownership right. Whatever rights that the plaintiff has had over the property is lost by adverse possession, ouster and limitation. It is further contended that the plaint schedule property is in the possession and enjoyment of the contesting defendants from 15/9/1988 on the basis of an agreement of sale. 3. The trial court examined the rival contentions of the parties on the basis of oral and documentary evidence adduced by on both sides. PW.1, DWs.1 to 4, Exts.A1 to A5 and Ext.B1 are marked, discussed and appreciated. It is not disputed in the case the fact that there was a family partition effected, vide deed No.1216 and that the B schedule property therein was allotted in favour of the sakha of plaintiff’s grand mother, Muthumma. The court after examining the evidence on record held that late Rajamma who is the mother of the plaintiff had obtained 2/5th R.S.A.No.670 of 2008 3 share of the plaint schedule property and that she was in enjoyment of the property as a co-owner till her death. The plaintiff contented that the defendants 1 to 4 are not entitled to any share in the plaint schedule property and that she is not a party to the said sale deeds and therefore the recitals in the sale deed are not binding on her. 4. The contesting defendants are the husband and wife. Their contentions were also considered. The very fact that the plaintiff is having 2/5th share over the plaint schedule property cannot be disputed effectively. The sale deeds executed by the other sharers are not binding on the plaintiff nor will affect her share. The contention that the defendants have perfected title by adverse possession and limitation was negatived finding that there is no basis for such a claim and there is no evidence in support of the same. The principle of ouster was correctly appreciated by the courts below and rightly repelled the contentions raised by the appellants. The court also relied on Ext.A4 sale deed and concluded that late Rajamma got share and therefore the plaintiff is entitled to claim 2/5th share. The very fact that the plaintiff is not a party to Exts.A1 and A2 sale deed is R.S.A.No.670 of 2008 4 not disputed and therefore the sale deeds are not binding on her. In the circumstances, the trial court decreed the suit. The appellate court also elaborately considered the contentions raised by the appellants and agreed with the findings of the trial court. 5. The learned counsel for the appellant also contended that the procedure prescribed in Order 32 Rule 15 has not been complied with. I find that there is no merit or force in the contentions of the counsel for the appellant. The appellant did not raise any contention before the appellate court or trial court that the plaintiff is not of sound mind; if that be so, he cannot contend that an enquiry is warranted. I have examined the contentions raised by the appellant in the light of the findings and reasonings entered by the courts below. I find that the findings arrived at on the basis of the reasonings stated in the judgment are correct and I fully agree with the findings. I also found that the grounds urged in support of the case set up in the memorandum of appeal are not sufficient to invoke this court’s jurisdiction under Section 100 C.P.C. No question of law much less any substantial questions of law arises for consideration in R.S.A.No.670 of 2008 5 this second appeal. Hence, this appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE Skj.