IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 RSA.No. 582 of 2010(C) --------------------------------- (AS.NO.69/2007 OF ADDL.DISTRICT COURT (ADHOC-I), KOTTAYAM, OS.NO.511/1999 OF MUNSIFF'S COURT, VAIKOM) .................... APPELLANT/APPELLANT/DEFENDANT: -------------------------------------------------------- VIJAYAN, AGED 61 YEARS,S/O.PADMANABHAN, PADMAVILASATHIL HOUSE,MOOTHEDATHU KAVU KARA, VAIKKOM VILLAGE,VAIKKOM TALUK,KOTTAYAM DISTRICT. BY ADVS. SRI.T.MADHU, SRI.K.N.AJAYAN. RESPONDENTS/RESPONDENTS/PLAINTIFFS: ----------------------------------------------------------------- 1. AMMINI AMMA,AGED 67 YEARS, W/O.VISWAMBHARAN,PADMAVILASATHIL HOUSE, NOW RESIDING AT TRIVENIYIL,MOOTHEDATHUKAVU KARA, VAIKKOM VILLAGE,VAIKKOM TALUK,KOTTAYAM DISTRICT. 2. VIJAYALAKSHMI,AGED 45 YEARS, D/O.AMMIN AMMA,THRIVENIYIL HOUSE,NOW RESIDING AT KOCHIPARAMBIL HOUSE,MOOTHEDATHU KAVU KARA, VAIKKOM VILLAGE,VAIKKOM TALUK,KOTTAYAM DISTRICT. 3. KALA,AGED 40 YEARS,D/O.AMMINI AMMA, THRIVENIYIL HOUSE,MOOTHEDATHU KAVU KARA, VAIKKOM VILLAGE,VAIKKOM TALUK, KOTTAYAM DISTRICT. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- R.S.A No. 582 of 2010 -------------------------- Dated this the 28th July, 2010 J U D G M E N T The defendant in O.S. 511/1999 before the Munsiff's Court, Vaikom ,who suffered a decree at the hands of trial court and which was confirmed in appeal, is the appellant herein. The facts and parties hereinafter referred to as are available before the trial court. 2. According to the plaintiffs, there was a partition as evidenced by Ext.A1 document dated 29.3.1971 and they were allotted plaint C schedule property. Plaint schedule property has an extent of 24.50 cents of land comprised in Sy. No.25/36/2. Immediately, on the western side of the property, B schedule property was alloted to the defendant in the suit. Mother was in possession and enjoyment of the entire 24.50 cents of property till her death. It is pointed out that after the partition deed, respective shares obtained by the plaintiffs and defendants, they were in possession and enjoyment of the same. It is alleged that on 11.7.1998 defendant forcibly trespassed into plaint schedule property and took R.S.A No. 582 of 2010 2 the yield from the coconut trees standing therein. A lawyer notice was issued to the defendant calling upon him to make good the loss caused by him and for fixation of the boundary of the plaint schedule property. Defendant had issued a reply notice stating that contentions raised against him are false. Since the appellant has no other means to redress his grievances, he approached the Court for necessary reliefs. 3. Defendant resisted the suit. The execution of partition deed and the stipulations contained therein were admitted. According to the defendant, plaint schedule properties were lying as a single compact plot and properties were not separated as claimed by the plaintiffs. Reservation of life estate in favour of mother was admitted. But the mother was in possession and enjoyment of 24.50 cents of land till 29.6.1998. According to the defendant, after the death of mother, he has been in absolute possession and enjoyment of the same. Therefore, he prayed for dismissal of the suit and also filed a counter claim. R.S.A No. 582 of 2010 3 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and Ext.A1 was marked from the side of the plaintiffs. Defendant had examined DW1 and DW2. Exts.C1 and C1 (a) are the commission report and plan. 5. On evaluation of the evidence in the case the trial court found that the plaintiffs are entitled to get their title declared in respect of the plaint schedule property. Accordingly the suit was decreed dismissing the counter claim raised by the defendant. On appeal the decree of the trial court was confirmed. 6. It is not in dispute that the properties which are the subject matter of dispute were obtained in the partition as per Ext.A1 dated 29.3.1971. Even though the defendant had a contention that since after the death of father he come into possession of the property and thereafter enjoying as his own it is not proved. The court below found that in the partition deed the mother had been taking income from the properties which were lying R.S.A No. 582 of 2010 4 as a compact plot. 7. Going by the terms of Ext.A1 the mother who was staying with defendants is to have life interest over the properties. She was therefore in possession and enjoyment till her death. Her possession can be traced to Ext.A1. The defendants cannot take advantage of the same to say that after partition since the plaintiff has not taken possession and he was in possession. I do not think the contention is sound. Till the death of the mother, she is entitled to be in possession of both items of properties. May be the defendant might have acted for and on behalf of her mother. But that does not confer any right on her. Merely because the plaintiff did not object to the conduct of the respondent during the life time of mother will not deprive him of the rights. 8. Both the courts below have elaborately considered the evidence on record and have come to the conclusion that the plaintiff has title and granted him permission to recover the property. It is a finding on facts. Interference under Section 100 C.P.C is very limited. R.S.A No. 582 of 2010 5 There is nothing to show that the courts below have erred in any manner. The defendants faced with concurrent findings. There is no merit in the appeal and it is accordingly dismissed. P.BHAVADASAN, JUDGE ma R.S.A No. 582 of 2010 6 R.S.A No. 582 of 2010 7