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.
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R.S.A.No.670 of 2008
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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
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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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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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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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this second appeal. Hence, this appeal fails and accordingly
dismissed in limine.
HARUN-UL-RASHID, JUDGE
Skj.