IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 RSA.No. 211 of 2011 --------------------------------- AS.63/1997 of SUB COURT, PAYYANNUR OS.340/1992 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT/APPELLANT/DEFENDANT: PALAKKEEL NANI, D/O.MATHI, AGED 69 YEARS, R/AT KUNHIMANGALAM AMSOM AND DESOM, P.O. KUNHIMANGALAM, KANNUR DISTRICT. BY ADV. SRI.MAHESH V RAMAKRISHNAN RESPONDENTS/RESPONDENTS/PLAINTIFFS: LEGAL REPRESENTATIVES OF DECEASED KUNHAPPA: 1. WIFE-ITTAMMAL CHEEYAYI, AGED 83 YEARS. 2. SANTHAKUMAR, AGED 58 YEARS LEGAL REPRESENTATIVES OF DECEASED NARAYANAN, 3. WIFE-AKKAMANI SANTHA, AGED 60 YEARS. 4. RAJEEV KUMAR, AGED 38 YEARS, 5. RAJITHKUMAR, AGED 34 YEARS, 6. RAJITHA, AGED 30 YEARS. 7. BABU, 25 YEARS, RESPONDENTS 1, 3 TO 7 ARE RESIDING AT KUNHIMANGALAM AMSOM AND DESOM P.O. KUNHIMANGALAM 670 309. RESPONDENT NO.2 IS RESIDING AT CHERUTHAZHAM AMSOM AND DESOM, P.O. MANDOOR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.211 of 2011 -------------------------------------- JUDGMENT Defendant in O.S.No.340/1992 on the file of Munsiff's Court, Payyannur is the appellant. Plaintiffs are the respondents. The suit was instituted for partition and separation of their half share contending that under Exhibit A1 partition deed, plaint schedule property was allotted to the shares of Kunhappa and Kunhikannan. Respondents are the widow and children of Kunhappa. Appellant is the assignor from Kunhikannan. It is claimed that respondents are entitled to get their half share separated. Appellant resisted the suit admitting that plaint schedule property originally belonged to Kunhappa and Kunhikannan. It is contended that possession was exclusively with Kunhikannan and subsequently, under Exhibit B1 assignment deed, Kunhikannan transferred his entire rights over the property in favour of appellant and since then, she has been in exclusive possession and enjoyment of the property. It is contended that Kunhappa was never in joint possession of the property and never shared the income. It is contended that in RSA 211/11 2 1966, Exhibit B2 lawyer notice was sent by Kunhappa claiming partition and in Exhibit B3 reply notice, appellant denied the right of Kunhappa claiming that she is in exclusive possession of the property and therefore, Kunhappa did no institute a suit. It is contended that Exhibit B4 notice claiming partition was sent through Power of Attorney Holder of Kunhappa in 1984 and by Exhibit B5 reply notice, appellant reiterated the case once again and the suit was instituted thereafter. It is contended that even if respondents have any right over the property, it is barred by ouster and adverse possession. 2. Learned Munsiff, on the evidence of Exhibits A1 to A7, B1 to B7(f) and C1 and C2 and oral evidence of husband of the appellant as DW1, granted a preliminary decree finding that plaint schedule property jointly belong to the appellant and respondents and respondents are entitled to one share and appellant the remaining share. Appellant challenged the judgment before Sub Court, Payyannur in A.S.No.63/1997. Learned Sub Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. RSA 211/11 3 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that courts below did not property appreciate the contentions of the appellant or the evidence. It was pointed out that it was the specific case of the appellant that though Kunhappa had half right in the property, property was in the exclusive possession and enjoyment of Kunhikannan and reiterating the exclusive possession, under Exhibit B1, Kunhikannan transferred his rights in favour of appellant in 1957 and since then, appellant has been in exclusive possession of the property. It is contended that at no point of time thereafter neither Kunhappa nor his legal heirs were in joint possession of the property and profits were never shared with the respondents and possession of the appellant from the date of Exhibit B1 is adverse to Kunhappa. Learned counsel vehementally argued that though under Exhibit B2 lawyer notice sent in 1966 Kunhappa claimed his share, by Exhibit B3 reply notice, the right was denied by the appellant and in any case, Exhibit B3 notice will amount to ouster and therefore, possession of the appellant from the date of receipt of Exhibit B3 notice by Kunhappa would be adverse to Kunhappa and as no suit was RSA 211/11 4 instituted within twelve years from that date, entire rights of Kunhappa is barred by ouster and adverse possession and therefore, the suit is not maintainable. Learned counsel also pointed out that though appellant wrongly sought purchase of jenm right from the Land Tribunal, impleading Kunhappa as the landlord, as is clear from Exhibit A5 judgment of the Appellate Authority (Land Reforms), case of the appellant was that she has perfected her title by adverse possession and in such circumstances, filing of an Original Application cannot be taken as an evidence to deny the ouster and adverse possession. Learned counsel also argued that though appellant sought to amend the written statement before the first appellate court, it was wrongly rejected and if the amendment was allowed, case of the appellant would have been upheld. 5. Appellant admittedly obtained right over plaint schedule property under Exhibit B1 assignment deed executed by Kunhikannan, the brother of Kunhappa. On a reading of Exhibit B1, it is clear that Kunhikannan had reiterated rights of Kunhappa and his rights obtained under Exhibit A1 and transferred the property in favour of the appellant stating that RSA 211/11 5 he is in exclusive possession of the property. In Exhibit B1, Kunhikannan has no case that his possession was adverse to Kunhappa. Appellant stepped into the shoes of Kunhikannan under Exhibit B1. Therefore, unless there is an ouster by the appellant of the rights of Kunhappa, rights of Kunhappa or his legal heirs cannot be denied. 6. Argument of the learned counsel is based on Exhibit B3 reply notice sent to Exhibit B2 lawyer notice sent by Kunhappa claiming partition. Learned counsel made available a copy of Exhibit B3 reply notice. It shows that appellant unambiguously admitted the right of Kunhappa over the plaint schedule property. What is alleged is that, said right is only jenm right and subsequent to Kunhikannan, appellant has been in possession of the property. In Exhibit B3 reply, appellant admitted that she is prepared to divide the jenm right and allot half right to Kunhappa. If that be so, Exhibit B3 cannot be taken as an ouster of the rights of Kunhappa. Argument of the learned counsel is that it would amount to denial of the possessory right of Kunhappa and therefore, it would amount to an ouster of rights of Kunhappa. I cannot agree with the same. To claim RSA 211/11 6 absolute right based on ouster and adverse possession, appellant has to deny the entire rights of Kunhappa and claim that she is the exclusive owner. There cannot be an adverse possession against Kunhappa, recognising his right. Exhibit B3, therefore, will not amount to an ouster of the rights of Kunhappa. 7. Moreover, as rightly pointed out by the courts below, appellant had approached the Land Tribunal for purchase of jenm right of entire plaint schedule property impleading Kunhappa as the landlord. Argument of the learned counsel is that though under Exhibit A4 order the original application was dismissed, in the appeal before the Appellate Authority, as is clear from Exhibit A5 judgment, appellant has specifically contended that she has perfected her title by adverse possession and therefore, filing of an original application will not amount to admission of the rights of Kunhappa. Exhibit A4 order of the Land Tribunal shows that the original application was allowed and appellant was permitted to purchase the jenm right. That order was challenged before the Appellate Authority by Kunhappa. Appellate Authority set aside the order of the Land Tribunal and remanded the case to the Land Tribunal. It is, RSA 211/11 7 thereafter, Exhibit A4 order was passed. If the case of the learned counsel is to be accepted and case of the appellant is not that she is a tenant, but has perfected her title by adverse possession, first of all, she need not file an original application for purchase of jenm right before the Land Tribunal. Even if original application was dismissed under Exhibit A4 order, there was no necessity to prefer an appeal and instead, the remedy was to approach the civil court to get the title perfected by adverse possession declared. Therefore, when appellant approached the Land Tribunal subsequent to Exhibit B3 notice admitting that she is the landlord not only in respect of half of the plaint schedule property, but the entire eighty cents of property, it is not open to the appellant to claim that she has perfected her title against Kunhappa by adverse possession. When appellant claimed tenancy under Kunhappa, being a tenant, she is not entitled to claim adverse possession as against her landlord. In such circumstances, finding of the courts below that appellant had not perfected her title by ouster and adverse possession is perfectly in order, in the light of the evidence on record. If appellant has not perfected her title by adverse RSA 211/11 8 possession, it is definitely available for partition. The preliminary decree passed by the courts below is, therefore, perfectly in order. As there is no substantial question of law is involved in the second appeal, it is dismissed. 17th February, 2011 (M.Sasidharan Nambiar, Judge) tkv