Kerala High Court
Thankappan vs Madhavan on 30 October, 2012
Author: Thomas P. Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 30TH DAY OF OCTOBER 2012/8TH KARTHIKA 1934
RSA.No. 1003 of 2012 ()
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AGAINST THE JUDGMENT/DECREE IN AS.31/2008
of ADDL.DISTRICT COURT-I,MAVELIKKARA
IN OS.685/1999 of MUNSIFF COURT,KAYAMKULAM
APPELLANT/1ST DEFENDANT:
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THANKAPPAN,
AGED 71 YEARS,
S/O.KUNJU SANKARAN, VADAKKETHIL VEEDU,
PERINGALA MURI, KAYAMKULAM VILLAGE,
ALAPPUZHA DISTRICT.
BY ADV. SRI.R.SATISH KUMAR
RESPONDENT(S)/RESPONDENTS/PLAINTIFF & ADDL.DEFENDANTS 2 & 3:
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1. MADHAVAN,
AGED 68 YEARS,
S/O.KUNJU SANKARAN, PUTHENCHIRAYIL VEEDU,
SANATHANAM WARD, ALAPPUZHA,
FROM VATTASSERIL VADAKKETHIL VEEDU, PERINGALA MURI,
KAYAMKULAM VILLAGE, ALAPPUZHA DISTRICT-690 502.
2. JANAKI,
D/O.KURUMPA, VATTASSERIL VADAKKETHIL VEEDU,
PERINGALA MURI, KAYAMKULAM VILLAGE,
ALAPPUZHA DISTRICT-690 502.
3. PURUSHOTHAMAN,
S/O.JANAKI, VATTASSERIL VADAKKETHIL VEEDU,
PERINGALA MURI, KAYAMKULAM VILLAGE,
ALAPPUZHA DISTRICT-690 502.
BY
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
30-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DG
THOMAS P. JOSEPH, J.
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R.S.A. No. 1003 of 2012
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Dated this the 30th day of October, 2012
JUDGMENT
The first defendant in O.S. No. 685 of 1999 of the Munsiff's Court, Kayamkulam is aggrieved by the judgement and preliminary decree for partition confirmed by the Ist Additional District Court, Mavelikkara in A.S. No. 31 of 2008.
2. The first respondent/plaintiff, the appellant/ first defendant and the late Thankamma are the legal heirs of Velumbi. According to the first respondent, Velumbi got the suit property - 6 cents as per Ext.A1, partition deed No.4845 of 1968 and on the death of Velumbi, the said property devolved on the appellant/first respondent and the deceased Thankamma.. Thankamma died unmarried and issueless. Now, the co-owners of the suit property are the appellant and the first respondent. The first respondent therefore prayed for partition and separate possession of his share claiming that he has also contributed to the modification of the R.S.A. No. 1003 of 2012 2 building in the suit property.
3. The appellant contended that Ext.A1, partition deed is not valid and denied title and joint possession claimed by the first respondent over the suit property. He also contended that property as described in the plaint schedule is situated towards east of the entire property which was acquired by Janaki (the second respondent), the sister of Velumbi who got purchase certificate and the said property is in possession and enjoyment of the son of Janaki (3rd respondent). It is further contended by the appellant that he purchased jenm right over the property from the Land Tribunal on 26.04.1973 (Ext.B1 is copy of the purchase certificate). He also resisted the suit on a plea of adverse possession and limitation.
4. In view of the contention raised by the appellant, respondents 2 and 3 were impleaded as additional defendants 2 and
3. In view of the said contention, the plaint schedule was also R.S.A. No. 1003 of 2012 3 amended.
5. The suit property claimed by the first respondent as item No. 2 of Ext.A1, partition deed. The trial court found that the claim of the appellant that he is the absolute owner of the suit property cannot be accepted and that he is bound by Ext.A1, partition deed. It was found that the purchase certificate should enure to the benefit of all the co-owners. However, the trial court accepted contention of the appellant that he modified the building in the suit property and hence while ordering partition, directed that the building be excluded from partition. That decision was confirmed by the first appellate court.
6. The learned counsel for the appellant has contended that the finding of the trial and first appellate courts after as to the partibility of the suit property is not correct. It is also argued that at any rate the plea of adverse possession ought to have been accepted.
R.S.A. No. 1003 of 2012 4
7. My attention is drawn to the recital in Ext.A1, partition deed as if the parties to it had only tenancy right over the suit property. Though in the plaint, the first respondent claimed that Velumbi got the suit property as per Ext.A1, partition deed, the courts below found from Ext.A1 that it is a partition among the legal heirs of Velumbi and others and that as per that partition the appellant, the first respondent and the deceased Thankamma got the suit property as item No.2 therein.
8. So far as claim of absolute right raised by the appellant is concerned, reliance is placed on Ext.B1, copy of purchase certificate. But the appellant cannot disown Ext.A1 since he is party No.3 in it. By Ext.A1, the appellant, first respondent and the late Thankamma got lease-hold right over the suit property and that right is partible. It is also revealed from Ext.A1 that the appellant and others got lease-hold right in their capacity as legal heirs of Velumbi. In the circumstances, disregarding Ext.A1 the R.S.A. No. 1003 of 2012 5 appellant cannot claim absolute right over the suit property as per Ext.B1 which should enure to the benefit of all the co-owners.
9. So far as the plea of adverse possession is concerned, Exts. B2 to B10 are produced by the appellant. Those documents only show that the appellant is residing in the building in the suit property. This fact is not disputed by the first respondent. The first respondent is residing at Alappuzha since about the last 34 years. The mere fact that the appellant is residing in the building in the suit property will not mean that he is in exclusive or adverse possession of the suit property. The courts below were not impressed by the evidence let in by the appellant in that regard and found against the plea of adverse possession. As between co- owners, a plea of adverse possession can be sustained only on proof of ouster. The courts below on evidence found against the plea of adverse possession.
10. Having regard to Ext.B8 and other evidence produced by R.S.A. No. 1003 of 2012 6 the appellant, the trial court found that the first respondent has not made any contribution for modification of the building in the suit property and hence while partitioning the property, the building has to be excluded. Certain other directions are also issued by the learned Munsiff.
11. Having heard the learned counsel on both sides and gone through the judgments under challenge, I am satisfied that no substantial question of law is involved in this second appeal requiring its admission.
The second appeal is dismissed.
All pending interlocutory applications will stand dismissed.
Sd/-
THOMAS P.JOSEPH,
JUDGE
smv //True copy//
P.A. To Judge