IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 707 of 1999(B)
1. OUSEPH
... Petitioner
Vs
1. ALEY
... Respondent
For Petitioner :SRI.K.B.SURESH
For Respondent :SRI.BECHU KURIAN THOMAS
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :19/10/2009
O R D E R
HARUN-UL-RASHID,J.
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A.S.NO. OF 2005
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DATED THIS THE 19TH DAY OF OCTOBER, 2009
JUDGMENT
The lst defendant in O.S.No.344/93 on the file of the
Sub Court, Kottayam is the appellant. The appeal is directed
against the judgment and decree dated 6/6/1998. The suit was
filed for partition. The plaint schedule property having an extent
of one acre and virivu belonged to late Chacko. The lst plaintiff
is the wife of late Chacko, the 2nd plaintiff is their daughter and
the lst defendant is the son of late Chacko born through his first
wife. It is the plaintiff’s case that the deceased Chacko married
the lst plaintiff on 30/5/1960 and Chacko died on 30/5/1972. The
plaintiffs claimed 2/3 share over the plaint schedule property.
The trial court passed a preliminary decree dividing the property
into three equal shares and declared that the plaintiffs are entitled
to get 2/3 share and the lst defendant is entitled to get 1/3 share.
2. The lst defendant resisted the suit contending that
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he was cultivating the property for the last number of years, that
late Chacko became a T.B. patient in the year 1950 and therefore
he could not do any work and that it was this defendant, who
cultivated and improved the property and effected valuable
improvements by planting coconut trees, arecanut trees, jack
trees, teak trees, pepper wines, rubber trees etc. According to
him, he has constructed kayyalas on all sides and put up a
residential building worth not less than Rs.2 = lakhs. After the
construction of the building he was residing in the property with
his wife and the deceased Chacko was residing far away from the
plaint schedule property at Kanjiramattam. It is also averred that
the defendant’s mother died when he was about 4 years old.
While his father was living as a widower, he happened to come in
contact with the lst plaintiff Aley, who is a widow having two
daughters, and married her. After the marriage, the lst plaintiff
came to know that late Chacko was a T.B. patient and therefor
she left Chacko and started living with one Mathai, who is also a
widower having children.
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3. The evidence in this case consists of depositions
of PW1, DW1 to DW4, Exts.A1 to A4 and X1 and X2.
4. The lst plaintiff is the 2nd wife of deceased Ouseph
Chacko. According to the lst plaintiff, the 2nd plaintiff is the
daughter born to her and Chacko. Chacko died on 30/5/1972.
According to her, the plaintiffs and the lst defendant are the legal
heirs entitled to inherit the property of deceased Chacko. It is the
plaintiffs’ case that the lst plaintiff has married Chacko on
30/5/1960 and the marriage was in existence till the death of
Chacko. Ext.X1 is the photocopy of the marriage register of
Holy Cross Church. In Ext.X1 register, the marriage between lst
plaintiff and Chacko was registered and the same was endorsed
as Serial No.65. From the evidence on record, it is seen that sthe
lst plaintiff is the legally wedded wife of Chacko and the 2nd
plaintiff daughter was born to them in the wedlock. The trial
court held that they are entitled to inherit the property belonged
to the deceased Chacko. The trial court also considered the
contentions of the lst defendant in detail including the contention
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of adverse possession and limitation. According to the lst
defendant, his father was a T.B. patient for more than 10 to 20
years, that he was not able to do any work and so according to
him, he is in exclusive possession over the plaint schedule
property and even if the plaintiffs are found to be the legal heirs
of Ouseph Chacko, they are not entitled to inherit the property.
Ext.A3 is the copy of the sale deed executed by the lst defendant
in favour of third party. The recitals in Ext.A3 would go to show
that the lst defendant has alienated the property as the legal heir
of the deceased Chacko. The trial court considered the evidence
and rightly held that there is absolutely no evidence to show that
the possession of the lst defendant was exclusive one as against
the plaintiffs. I find that the evidence adduced by the lst
defendant is not sufficient to take a different conclusion. There
is absolutely no evidence to show that he had ever possessed the
property adverse to the interest of the plaintiffs. The trial court
also observed that the mere statement that the property has been
in possession and enjoyment for long time by a party is not at all
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sufficient and that there must be clear, definite and specific
evidence to prove exclusive possession adverse to the interest of
the real owner. Having failed to prove that he is enjoying the
property adverse to the other co owners, the trial court held that
the possession of the lst defendant over the property was also for
the interest and benefit of the other legal heirs, namely, the
plaintiffs in the suit. The trial court issued a direction that at the
time of allotting the shares in the final decree proceedings, the
property alienated by the lst defendant shall be allotted to his
share.
5. The lst defendant has a definite case that since his
father was a T.B. patient, he has improved the property by
effecting cultivation and constructed the house situated in the
property and is living therein with his family.
6. The property is available for partition. It is
submitted by the learned counsel for the plaintiffs that they have
conveyed their 2/3 share in favour of the third plaintiff. But the
sale deed was not produced before the court. In the light of the
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fact that the plaintiffs had alienated their 2/3 share to the 3rd
plaintiff and for the reason that they had only alienated their
share over the property and for the further reason that they had
not conveyed any right over the residential building in question, a
modification of the decree and judgment is proper and just in the
circumstances.
The appeal is partly allowed. The plaint schedule
property is liable to be partitioned except the residential building.
To that extent the preliminary decree is modified. The 2/3 share
shall be allotted to the 3rd plaintiff subject to the production of
sale deed before the final decree court. The residential building
shall be allotted to the share of the lst defendant. There will be
no order as to costs.
HARUN-UL-RASHID,
Judge.
kcv.
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