IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 RSA.No. 815 of 2008() --------------------- AS.14/2005 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.476/1998 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/IST APPELLANT/IST DEFENDANT SARASWATHY, W/O.LATE V.PADMANABHA IYER. 74 YEARS, R/AT.TC.NO.41/740, SREEVARAHAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM.. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENT(S): 1. V.P.CHANDRAN, S/O.LATE V.PADMANABHA IYER 53 YEARS, NOW R/AT. T-28, UMA SUDHANAGAR SOCIETY VESALPUR, UASTRAPUR RAILWAY STATION ROAD, AHAMEDBAD-58, FROM TC.41/740, SREEVARAHAM MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. 2. CHITHRA, D/O.LATE V.PADMANABHA IYER AGED 39 YEARS, R/AT. TC.41/740, SREEVARAHAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. 3. V.DHARMARAJA IYER, S/O.LATE P. VENKIOTACHALAM IYER, 79 YEARS,R/AT. R/AT.TC.175/1, DEFENCE COLONY, V.MAIN I CROSS, INDIRA NAGAR, BANGALORE-38. 4. V.NARAYANA IYER, S/O.LATE P.VENKITACHALAM IYER, 77 YEARS R/AT HO.NO.GH/583, PANCHIM VIHAR, NEW DELHI. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 815 of 2008 * * * * * * * * * * * * * * * * * * Dated: 13-01-2009 JUDGMENT The first defendant in O.S. 476 of 1998 on the file of the II Addl. Sub Court, Thiruvananthapuram is the appellant in this Second Appeal. The said suit instituted by the three plaintiffs was one for partition and separate possession of their share (they claimed 1/5th share over the property) consisting of one item of immovable property with a building thereon. The plaint schedule property admittedly belong to one P. Venketachala Iyer is by way of self acquisition as per Ext.A2 sale deed dated 7-4-1959. The said Venketachala Iyer died on 29-12-1976 leaving behind his widow Saraswathy Ammal and four sons and one daughter. One Padmanabha Iyer who died on 24-10-1994 , Regupathi Iyer died on 29-6-1993, Dharmaraja Iyer, the first plaintiff, Narayana Iyer the 2nd plaintiff Lakshmi, are the plaintiffs. His widow Saraswathi Ammal died on 15-09-1993. The first defendant is the widow of the first defendant and defendants 2 -:2:- and 3 are his children. As per Ext.A3 will dated 2-10-1990 Raghupathi Iyer had bequeathed his share over the plaint schedule to 3rd plaintiff Lakshmi who also died pending suit on 18-11-2003. She was a spinster. Taking into account Ext.A3 will and with the death of Lakshmi, the following shares which the parties would be entitled to: Defendants 1 to 3 would jointly take 1/3 share. Plaintiffs 1 and 2 would take 1/3 shares over the plaint schedule properties. Preliminary decree for partition and separate possession of the 2/3 shares of the plaintiffs was passed. The suit was resisted by the appellant/first defendant contending inter alia that the rights of the plaintiffs and other co-owners were lost by adverse possession , limitation and ouster. Both the courts below have concurrently held that the rights of the plaintiff and other co-sharers are not lost by adverse possession , limitation and ouster. The said conclusion reached by the courts below is in accordance with the decision of the Apex Court in 2007 (6) SCC 59. The findings recorded by the courts below are pure finding of fact. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal, which is -:3:- accordingly dismissed in limine. It is, however made clear that the question of reservations and equities, if any, which the parties are entitled to relegated to the final decree court which may consider the same as and when the parties raised the same. Dated this the 13th day of January, 2009. V. RAMKUMAR, (JUDGE) ani.