IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 RSA.No. 1098 of 2009() ---------------------- AS.1/2006 of PRINCIPAL SUB COURT,THALASSERY OS.393/2004 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANT(S): APPELLANT/2ND DEFENDANT ------------------------------------------- CHETTIANKANDI ATIYERI REGHUTHAMAN, S/O.PADMAVATHI, AGED YEARS, TRADER, COMMERCIAL ROAD, REGAL BAKERY, OOTY, TAMILNADU. BY ADV. SRI.N.RAJAGOPALAN NAIR SRI.D.M.NOWFAL RESPONDENT(S)/RESPONDENTS/ PLAINTIFFS & IST DEFENDANT -------------------------------------- 1. CHETTIANKANDI ATIYERI SATHI MADAVAN, W/O.MADAVAN, AGED YEARS, VALATH P.O., PONNIAM WEST, THALASSERY. 2. CHETTIANKANDI ATIYERI GIRIJA BHASKARAN, W/O. BHASKARAN, AGED YEARS, SREENILAYAM, CHEDIROAD JUNCTION, UPPILAKKAI, VIA NEELESWAR, KASARAGOD. 3. CHETTIANKANDI ATIYERI SEETHA PURUSHOTHAMAN, D/O.PADMAVATHY, AGED YEARS, VAYALIL HOUSE, P.O.MOWANCHERY, KANNUR DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1098 of 2009 -------------------------------------- Dated this the 30th day of October, 2009. JUDGMENT Regular Second Appeal comes at the instance of defendant No.2 from judgment and decree of learned Sub Judge, Thalassery in A.S.No.1 of 2006 confirming judgment and preliminary decree for partition passed by learned Additional Munsiff, Kannur in O.S.No.393 of 2004. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. According to the plaintiffs, suit property was allotted to the share of their sister, Umadevi in Ext.A1, partition deed dated 22.2.1980. Umadevi died as a spinster. Plaintiffs and defendants are the legal heirs of said Umadevi and claimed that on the death of Umadevi the suit property devolved on them. Accordingly plaintiffs demanded partition and separate possession of their share. Defendant No.1 supported the case of plaintiffs. Defendant No.2 contended that there was an agreement between parties that on the death of Umadevi the suit property will exclusively go to him and thus, on the death of Umadevi he took possession of the suit property. He claimed that he has been holding the property adverse to the interest of plaintiffs and defendant No.1 for the last 17 years. Both the courts found against the plea of defendant No.2 and hence this Second Appeal urging by way of substantial question of law whether, it is necessary that the plea of ouster in a suit for partition is to be proved by RSA No.1098/2009 2 documentary evidence and as to the mode of proof of ouster against a co- owner. It is contended by learned counsel that concurrent findings entered by the courts below are erroneous. 3. It is not disputed that the suit properties belonged absolutely to Umadevi as per Ext.A1 and that consequent to her death it is partiable among the plaintiffs and defendants in the way plaintiffs claimed. Though appellant/defendant No.2 claimed that there was an agreement between the parties that on the death of Umadevi the suit property will exclusively go to him there is no acceptable evidence in that line and at any rate, a mere agreement in the way pleaded by the appellant cannot extinguish the title of other co-owners. 4. So far as the plea of adverse possession and limitation is concerned, there is no evidence to show that appellant/defendant No.2 had been in exclusive possession of the suit property with hostile title to the plaintiffs and defendant No.1. So far as co-owners are concerned any length of possession is not sufficient and there must be proof of ouster. This Court in Sooppi v. Moosa (1969 KLT 121) held that ouster is a matter involving positive action and not merely inaction. So far the plea of adverse possession between co- owners is concerned a Division Bench of this Court in Kunhunni v. Kesavan Namboodiri (1990 (2) KLT 854) held that mere non-participation in income by itself in the absence of any circumstance will not be sufficient to imply RSA No.1098/2009 3 ouster. It is true that it is not necessary that there must be a document to show the fact of ouster. But there is no evidence in this case that there was any such ouster of plaintiffs and defendant No.1 to their knowledge. In the circumstances, courts below rightly found against the plea of adverse possession and limitation raised by appellant/defendant No.2. No substantial question of law is involved on the evidence on record. Courts below acting on the evidence on record found that the plea of adverse possession and limitation is not established. Resultantly, the Second Appeal fails. It is dismissed in limine. THOMAS P.JOSEPH, Judge. cks