High Court Kerala High Court

Purushothama Kaimal vs Pushpalekha on 31 July, 2009

Kerala High Court
Purushothama Kaimal vs Pushpalekha on 31 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 670 of 2008()


1. PURUSHOTHAMA KAIMAL,
                      ...  Petitioner
2. SUMANGALA, W/O.PURUSHOTHAMA KAIMAL,

                        Vs



1. PUSHPALEKHA, D/O.RAJAMMA,
                       ...       Respondent

2. SEETHALAKSHMI AMMA, D/O.KAMALAKSHI

3. RAJALAKSHMI AMMA, D/O.KAMALAKSHI AMMA,

4. SANTHAKUMARI AMMA, W/O.BHASKARAN,

                For Petitioner  :SRI.M.P.MADHAVANKUTTY

                For Respondent  :SRI.B.GOPAKUMAR

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :31/07/2009

 O R D E R
                       HARUN-UL-RASHID, J.
                     -----------------------------------
                        R.S.A.No.670 of 2008
                    -------------------------------------
               Dated this the 31st day of July, 2009

                              JUDGMENT

The defendants 5 & 6 in O.S.No.340 of 2003 on the file of

the Additional Munsiff’s Court, Alappuzha are the appellants.

The appeal is directed against the judgment and decree in

A.S.No.47of 2006 on the file of the Additional Sub Court,

Alappuzha. The first respondent as plaintiff filed the suit for

partition and separate possession. The trial court decreed the

suit and preliminary decree was passed declaring that the

plaintiff is entitled to 2/5th share. The appellants herein

preferred the first appeal A.S.No.59 of 2006. The decree was

confirmed. Hence, this second appeal. The parties are arrayed

as plaintiff and defendants as in the suit.

2. It is the plaintiff’s case that the members of the family

effected a partition vide deed No.1216 wherein B schedule

property was allotted to the sakha of plaintiff’s grand mother,

Muthumma. Plaintiff is the grand daughter of Muthumma. The

plaintiff is the daughter of one Rajamma who is the daughter of

Smt.Muthumma. The plaintiff’s claim is that she is entitled to

R.S.A.No.670 of 2008
2

2/5th share in the plaint schedule property. The defendants 5 and

6 who are appellants herein contested the suit. The other

defendants remained absent. The appellants are claiming title

over the entire property on the basis of 2 sale deeds executed by

defendants 1 to 4. They further contended that neither the

plaintiffs nor their predecessors had obtained joint possession or

co-ownership right. Whatever rights that the plaintiff has had

over the property is lost by adverse possession, ouster and

limitation. It is further contended that the plaint schedule

property is in the possession and enjoyment of the contesting

defendants from 15/9/1988 on the basis of an agreement of sale.

3. The trial court examined the rival contentions of the

parties on the basis of oral and documentary evidence adduced

by on both sides. PW.1, DWs.1 to 4, Exts.A1 to A5 and Ext.B1

are marked, discussed and appreciated. It is not disputed in the

case the fact that there was a family partition effected, vide deed

No.1216 and that the B schedule property therein was allotted in

favour of the sakha of plaintiff’s grand mother, Muthumma. The

court after examining the evidence on record held that late

Rajamma who is the mother of the plaintiff had obtained 2/5th

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3

share of the plaint schedule property and that she was in

enjoyment of the property as a co-owner till her death. The

plaintiff contented that the defendants 1 to 4 are not entitled to

any share in the plaint schedule property and that she is not a

party to the said sale deeds and therefore the recitals in the sale

deed are not binding on her.

4. The contesting defendants are the husband and wife.

Their contentions were also considered. The very fact that the

plaintiff is having 2/5th share over the plaint schedule property

cannot be disputed effectively. The sale deeds executed by the

other sharers are not binding on the plaintiff nor will affect her

share. The contention that the defendants have perfected title

by adverse possession and limitation was negatived finding that

there is no basis for such a claim and there is no evidence in

support of the same. The principle of ouster was correctly

appreciated by the courts below and rightly repelled the

contentions raised by the appellants. The court also relied on

Ext.A4 sale deed and concluded that late Rajamma got share and

therefore the plaintiff is entitled to claim 2/5th share. The very

fact that the plaintiff is not a party to Exts.A1 and A2 sale deed is

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4

not disputed and therefore the sale deeds are not binding on her.

In the circumstances, the trial court decreed the suit. The

appellate court also elaborately considered the contentions

raised by the appellants and agreed with the findings of the trial

court.

5. The learned counsel for the appellant also contended

that the procedure prescribed in Order 32 Rule 15 has not been

complied with. I find that there is no merit or force in the

contentions of the counsel for the appellant. The appellant did

not raise any contention before the appellate court or trial court

that the plaintiff is not of sound mind; if that be so, he cannot

contend that an enquiry is warranted. I have examined the

contentions raised by the appellant in the light of the findings

and reasonings entered by the courts below. I find that the

findings arrived at on the basis of the reasonings stated in the

judgment are correct and I fully agree with the findings. I also

found that the grounds urged in support of the case set up in the

memorandum of appeal are not sufficient to invoke this court’s

jurisdiction under Section 100 C.P.C. No question of law much

less any substantial questions of law arises for consideration in

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5

this second appeal. Hence, this appeal fails and accordingly

dismissed in limine.

HARUN-UL-RASHID, JUDGE

Skj.