IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 RSA.No. 1229 of 2008 ----------------------------------- AS.41/2005 of DISTRICT COURT, PALAKKAD OS.479/1996 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/PLAINTIFF: UNNIKRISHNAN, S/O KANDAN, CHERUMKAD, POKANTHODU, ELAPPULLY, PALGHAT. BY ADV. SRI.T.C.MOHANDAS SRI.T.M.SUNIL SMT.S.CHITHRA SRI.A.S.BRIJESH RESPONDENT/RESPONDENT DEFENDANT: PUSHPAM, W/O RAJAN, CHEKINDAKAVU, KOOLIMUTTAM, POLPULLY, PALGHAT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/03/2009 ALONG WITH RSA NO.1234 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. ----------------------------- R.S.A.No.1229 & 1234 of 2008 ----------------------------- COMMON JUDGMENT R.S.A.No.1229/08 arises out of O.S.No.479/96 filed by the appellant for a decree of permanent prohibitory injunction against the respondent, who is his sister, the courts below having concurrently dismissed the suit. R.S.A.No.1234/08 arises out of O.S.No.484/96, a suit instituted by respondents 1 to 4 against the appellant and fifth respondent claiming partition of the suit properties scheduled therein. 2. Appellant is the same in both these Regular Second Appeals and the sole respondent in R.S.A.No. 1229/08 is the third respondent in R.S.A.No. 1234/08. Respondents 1, 2 and 4 are her sisters. The fifth respondent, who is the second defendant in O.S.No.484/96, is the widow of another brother of the parties to O.S.Nos.484/96 and 479/96. RSA 1229&1234/08 2 3. The scheduled properties included in the partition suit O.S.No.484/96 are the properties to which there was leasehold right in favour of Kandankutty, the father of the plaintiffs, the first defendant and late husband of the second defendant in O.S.No.484/96. After the death of Kandankutty in 1962, his wife, along with appellant Unnikrishnan and his brother late Rajan, the deceased husband of the second defendant, applied for assignment of tenancy right in their favour. It is submitted that under Exhibit A2 purchase certificate, the property was assigned in favour of the mother and two sons to the exclusion of the plaintiffs, who are four daughters of deceased Kandankutty. After obtaining Exhibit A2 purchase certificate, it is submitted that the mother passed away and the two sons partitioned the properties under Exhibit B1 partition deed of 1981 and that ever thereafter, they are in enjoyment of the shares allotted to them under Exhibit B1 and on the death of Rajan, one of the brothers, his widow, the RSA 1229&1234/08 3 second defendant is enjoying the share allotted to Rajan under Exhibit B1 partition deed. 4. The properties in relation to which injunction was sought for by appellant Unnikrishnan in O.S.No.479/96 was in relation to the properties allotted to him under Exhibit B1 partition deed. 5. O.S.Nos.479/96 and 484/96 were being jointly tried by the court below and were being disposed of by a common judgment and the appeals filed against the judgment and decree before the first appellate court were also being disposed of by a common judgment. 6. O.S.No.479/96 was instituted by the appellant for a decree of permanent prohibitory injunction on the allegations that the scheduled properties along with some other properties were taken on lease by him and his brother Rajan @ Maniyappan @ Muniyandy in the year 1962 from Velayudhan, S/o Arumughan and the properties remained in enjoyment of himself and his brother Rajan ever after the date of lease; that Exhibit A2 RSA 1229&1234/08 4 purchase certificate was issued in relation to the scheduled properties from Kollangode Land Tribunal and subsequently, the scheduled properties and other properties taken on lease were partitioned between himself and his brother Rajan under Exhibit B1 partition deed of 1981; that as per Exhibit B1, the entire properties were divided into two, describing them under A and B schedules thereto and the properties described in B schedule were set apart to his share and those properties are in his exclusive possession and enjoyment; that Rajan, the brother of the appellant died; that the defendant is one among his sisters; that all other remaining sisters were married away in accordance with the custom of the community; that none of the sisters have got any right over the scheduled properties that the defendant came to his house three weeks back and demanded financial assistance for marriage of her daughter; that she wanted an amount of Rs.50,000/- at least by way of loan; that he could not advance money as asked for, but, agreed to give RSA 1229&1234/08 5 whatever he could manage; that dissatisfied with the offer made by him, the defendant came to his house and demanded her share in the scheduled properties; that thereafter, on 17.7.1996, he received a Lawyer notice from the defendant demanding partition; that on 21.7.1996, the defendant, along with her men, came to the scheduled properties and threatened to trespass into the house and to obstruct the agricultural operations being carried out by him in the scheduled properties and that though, by his timely intervention the defendant withdrew, she has threatened that she would interfere with his peaceful possession and residence in the house in the scheduled property as also enjoyment of the properties. Hence the suit for a decree of permanent prohibitory injunction restraining the defendant from trespassing into the scheduled property and interfering with his occupation in the building in the scheduled property and with the cultivations done by him in the scheduled property. RSA 1229&1234/08 6 7. The defendant filed written statement contending that the father of the plaintiff and herself was the original lessee of the scheduled properties; that the jenm right over the scheduled properties was obtained by Lakshmi, the mother of the plaintiff and herself; that it is incorrect to say that the scheduled properties were in enjoyment of the plaintiff and his bother; that all the sisters of the plaintiff have got equal right over the scheduled properties like the plaintiff and deceased brother Rajan; that she never asked for any financial assistance from the plaintiff and she demanded only partition and separate possession of her share; that the suit is filed by the plaintiff with the intention of avoiding her share being given to her and that she never attempted to take possession of the scheduled properties by force and there is no cause of action for the suit. 8. O.S.No.484/96 was filed by the sisters of the appellant and his deceased brother Rajan claiming partition and separate possession of their RSA 1229&1234/08 7 shares in the scheduled properties divided under Exhibit B1 partition deed between the two brothers, inter alia on the allegations that the parties belong to Hindu community and hail from Pristine Ezhava family; that they are the sisters of the first defendant and the second defendant is the widow of their deceased brother Rajan; that the scheduled properties were taken on lease by their late father Kandnakutty from one K.S.Ramayyar; that he was in enjoyment of the scheduled properties till his death in 1962; that after the death of their father, the tenancy arrangement was continued by Kuppachi, the mother of the plaintiffs and first defendant; that the mother died in the year 1973; that the plaintiffs, the first defendant and the deceased husband of the second defendant are the only legal heirs of deceased Kandankutty and Kuppachi; that the properties, by intestacy, devolved on the plaintiffs and the defendants and they are entitled to have the benefit of purchase certificate obtained by deceased mother in the year RSA 1229&1234/08 8 1972 in respect of the scheduled properties; that the scheduled properties are in joint possession and enjoyment of themselves and the defendants; that the defendants used to give share of profits to them from out of the income from the scheduled properties and they stopped sharing of profits for the last five years; that therefore, demand was made for partition and separate possession of the due shares belonging to them and that finally, on 13.7.1996, they demanded partition issuing a notice through Lawyer and thereupon the defendants declined to partition the scheduled properties. On the above allegations, the plaintiffs in O.S.No. 484/96 claimed partition by metes and bounds of the scheduled properties into six equal shares and for allotment of 4/6 share to them with proportionate share of mesne profits. 9. The first defendant resisted the suit raising contentions similar to those made in the plaint in O.S.No.479/96 instituted by him and contending further that the suit is barred by RSA 1229&1234/08 9 limitation and the properties obtained by him as per partition effected in 1981 are in his exclusive possession and enjoyment and possession by himself as also by his brother are adverse to the rights of the plaintiffs and even if the plaintiffs had any rights over the properties, their rights are lost by adverse possession and limitation. The second defendant remained absent and ex parte. 10. The trial court raised necessary issues for trial and considering the evidence adduced at joint trial of the two suits, which consisted of oral evidence of PW1 and DW1 and documentary evidence Exhibits A1 to A4 and B1 to B11, decreed O.S.No.484/96, passing a preliminary decree for partition as prayed for and dismissed the suit O.S.No.479/96. Appeals filed by the appellant assailing the decrees in both the suits as A.S.Nos.41/05 and 42/05 were dismissed by the first appellate court confirming the correctness of the judgment and decree passed by the trial court. Hence these Regular Second Appeals. RSA 1229&1234/08 10 11. It is vehemently contended before me by the learned counsel for the appellant that Kandankutty, the father died in the year 1962 and thereafter Exhibit A2 purchase certificate was obtained by the appellant, his deceased brother Rajan and their mother to the exclusion of all the daughters and thereafter the mother died and the parties to Exhibit B1, namely, the appellant and his deceased brother Rajan, were in possession and enjoyment of the properties as per Exhibit B1 partition deed entered into between them in the year 1981, whereas, the suit is filed only in the year 1996 and that at least from the date of partition deed of 1981, there is ouster of the respondents, though, in fact they never had any enjoyment at all of the scheduled properties and that therefore, the claim is barred by limitation and rights of plaintiffs in O.S.No.484/96, if any, are barred by adverse possession of the appellant. 12. It is further contended by counsel for the appellant that the respondents had to make several RSA 1229&1234/08 11 amendments to the properties scheduled to the plaint, which show that they were not having any clear idea about the scheduled properties and that they did not even have any idea as to who is in possession of the scheduled properties. 13. Though, it is contended by the appellant that lease was in favour of himself and his brother Rajan, there is absolutely no evidence adduced in the case as regards any such tenancy arrangement for them with the landlords, as alleged by them. According to the appellant, the lease was in their favour since 1962 from Velayudhan, S/o Arumughan, whereas, according to the plaintiffs in O.S.No. 484/96, the lease was in favour of their deceased father Kandankutty, as the scheduled properties were taken on lease by their deceased father Kandankutty from one K.S.Ramayyar and it is that right that has devolved on his death to their mother and six children. If at all the appellant's case is that himself and his brother Rajan took the properties on lease and they were having RSA 1229&1234/08 12 independent right to the exclusion of the alleged right of their father, then, certainly, Kuppachi, the widow of Kandankutty, would not have been one of the applicants in O.A.No.401/1970 of Kollengode Land Tribunal, in which was Exhibit A2 purchase certificate issued. The mother also became a party only because the original lessee was Kandankutty and on his death, his widow and sons made an application before the Kollengode Land Tribunal, as the daughters were already given in marriage and they were not readily available to join as applicants in the application to be filed before the Land Tribunal. It is further seen that in Exhibit A2 purchase certificate, the name of the landlord is not mentioned at all and therefore, the appellant cannot prove his case of lease having been obtained from Velayudhan, S/o Arumughan and not as being from the jenmi K.S.Ramayyar, from whom, according to the plaintiffs, late Kandankutty took the properties on lease. The fact that consequent on death of Kuppachi, the mother, RSA 1229&1234/08 13 somewhere in 1972 or 1973, the properties were partitioned by the two brothers under Exhibit B1 in 1981 behind the back of their sisters, who were already given in marriage and were having their residences at different places, does not enable the appellant or the widow of his deceased brother Rajan to claim adverse possession over the properties over which partition is claimed by the plaintiffs in O.S.No.484/96. They are co-owners and the materials made available in evidence in the case did not show that there is ouster of the plaintiffs from possession and that the two brothers were in possession and enjoyment of the scheduled properties for the requisite period as absolute owners to the exclusion of their sisters. The appellant cannot, therefore, resist the claim for partition advanced by respondents 1 to 4 and he cannot also obtain a decree of permanent prohibitory injunction against his sister, who is one of the co-owners, as prayed for. The concurrent decrees passed by the courts below, in the RSA 1229&1234/08 14 circumstances, cannot be found fault with. There is no question of law and much less any substantial question of law, as is attempted to be made out in the memorandum of appeal, arising for consideration by this Court in these Regular Second Appeals. These Regular Second Appeals, in the circumstances, are dismissed in limine refusing admission. 30th March, 2009 (K.P.Balachandran, Judge) tkv