Pangu Alias Apputty (Dead) Throu ... vs Narayani And Ors

2. The relevant facts, in brief, are stated hereunder. For the sake of brevity and convenience the parties are referred to as per the rank assigned to them in the original suit proceedings.

4. According to the case pleaded by the plaintiffs, after the death of Valli, her two sons, namely, Kunhan and Ayyappan were in possession and enjoyment of the suit schedule properties for and on behalf of the other legal heirs. Kunhan and Ayyappan were giving the income derived from the suit schedule properties to the shares of the plaintiffs upto their death.

6. The defendant No. 2 approached the plaintiff No. 1, offering Rs.500/- towards the value of her share and requested her to be content with the same. But she did not accede to the request made by him.

Thereafter, defendant No. 1 sent a reply notice stating therein that the plaintiff No. 1 was not a co-sharer of the suit schedule properties and that the properties were not available for partition as prayed by her in the original suit.

10. It is further stated by the above defendants that even before the death of Valli, her daughter Unniechi, the plaintiff No. 1 and the other daughter namely, Ammalukutty (the mother of the defendant Nos. 10 to 17) were given ornaments, utensils and dowry in their marriage as Streedhana which is in accordance with the customary rights recognised in the community. According to them as per the customary rights of the parties and law, on the death of Valli, the suit schedule properties were devolved on her surviving sons, namely, Kunhan and Ayyappan exclusively by succession. Both the plaintiff No. 1 and her sister, Ammalukutty were aware of this.

12. The Trial Court has framed 9 issues on the basis of pleadings and conducted the trial. On behalf of the plaintiffs, two witnesses were examined as PW-1 and PW-2 and their documents were marked as Exs. A-1 to A- 3 and on behalf of the defendants, three witnesses as DW-1 to DW-3 were examined and marked their documents as Exs.B-1 to B-10 to justify their respective cases in the original suit proceeding.

13. The Trial Court on the basis of pleadings and on appreciation of both oral and documentary evidence on record has answered the contentious issues against the plaintiffs and in favour of the defendant Nos. 1 to 9 and consequently, held that the plaintiffs and defendant Nos. 10 to 17 are not entitled for partition vide its judgment and decree. Consequently, the suit was dismissed with no costs.

33. The Trial Court being a fact finding court, on proper appreciation of pleadings, documentary and oral evidence on record, has rightly come to the conclusion and held that Valli died during life time of her children. Thereafter fathers of defendant Nos. 1 to 9 were in possession and after their death they have been in possession and enjoyment of the suit schedule properties exclusively as the owners. Therefore, they have perfected their title to the suit schedule properties by adverse possession and ouster of the plaintiff No. 1 and defendant Nos. 10 to 17. Hence, the High Court should not have interfered with the finding of fact recorded by the Trial Court on the relevant contentious issue No. 4 based on legal evidence on record, the said finding has been erroneously set aside by the High Court in exercise of its appellate jurisdiction and therefore, the impugned judgment is liable to be set aside.

In view of the pleadings and evidences of defendant Nos. 1 to 9 on record regarding custom of marriage prevalent and practiced in the family of plaintiff No. 1 and mother of defendant Nos. 10 to 17, the High Court recorded the finding of fact holding that the marriage of the two daughters of Valli were not celebrated in the Kudivaippu form and therefore, it has rightly held that the plaintiff No.1 and defendant Nos. 10 to 17 are entitled to their share in the suit schedule properties, which is left by Valli as the same were her Streedhana properties.

Accordingly, we answer the point No. 3 against the plaintiff No.1 and defendant Nos. 10 to 17.

43. We have already answered the point No. 3 in favour of the defendant Nos. 1 to 9 by recording our reasons on the undisputed facts and evidence on record that they have perfected their title to the suit schedule properties by adverse possession from 1953 onwards by ouster of the daughters of Valli after her death.

45. For the foregoing reasons, we allow the appeal of the defendant Nos. 1 to 9 and set aside the impugned judgment and decree of the High Court and restore the judgment and decree passed by the Trial Court. But no costs awarded.