{"id":118324,"date":"2010-07-09T00:00:00","date_gmt":"2010-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/veerankutty-vs-nabeeesa-on-9-july-2010-2"},"modified":"2017-07-15T04:26:36","modified_gmt":"2017-07-14T22:56:36","slug":"veerankutty-vs-nabeeesa-on-9-july-2010-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/veerankutty-vs-nabeeesa-on-9-july-2010-2","title":{"rendered":"Veerankutty vs Nabeeesa on 9 July, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Veerankutty vs Nabeeesa on 9 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 136 of 1994(G)\n\n\n\n1. VEERANKUTTY\n                      ...  Petitioner\n\n                        Vs\n\n1. NABEEESA\n                       ...       Respondent\n\n                For Petitioner  :SRI.K.V.JAYACHANDRAN\n\n                For Respondent  :SRI.K.K.JAYASOORIAN\n\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :09\/07\/2010\n\n O R D E R\n                        P. BHAVADASAN, J.\n             - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                       S.A. No. 136 of 1994\n            - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n             Dated this the 9th day of July, 2010.\n\n                               JUDGMENT\n<\/pre>\n
          The plaintiffs in O.S. 222 of 1981 before the<\/p>\n
Munsiff’s Court, Ernakulam are the appellants.<\/p>\n
          2. Late Kunjan Marakkar had eight children.<\/p>\n
They are Muhammed, the first plaintiff, Veerankutty, the<\/p>\n
second plaintiff, Kochupathu, the third plaintiff, Sareeba,<\/p>\n
the fourth plaintiff, Aliyumma, the fifth plaintiff and<\/p>\n
Hameed, who is no more and his legal heirs are plaintiffs<\/p>\n
6 to 10. He had a daughter by name Nabeesa, who is<\/p>\n
shown as the first defendant. The second defendant is<\/p>\n
her husband and defendants 3 to 6 are their children. He<\/p>\n
has another son Kadir Pillai, who is no more and his legal<\/p>\n
heirs are defendants 7 to 13.\n<\/p>\n
          3.   The suit is one for partition.                        The plaint<\/p>\n
schedule consists of two items, namely 1.16 acres in Sy.<\/p>\n
Nos.651\/8A and 651\/8B of Puthuppally Village and item<\/p>\n
S.A. 136\/1994.                 2<\/span><\/p>\n
No.2, which consists of 13 = cents in Sy. No.712\/5 of the<\/p>\n
same Village.\n<\/p>\n
             4. Items 1 and 2 of the plaint schedule and<\/p>\n
another extent of 69 = cents comprised in various survey<\/p>\n
numbers originally belonged to Kunjan Marakkar, who is the<\/p>\n
predecessor in interest of Kadir Pillai, first defendant and the<\/p>\n
plaintiffs. After the death of Kunjan Marakkar, according to<\/p>\n
the plaintiffs, his rights devolved on the legal heirs, who<\/p>\n
were since then in joint possession. The legal heirs decided<\/p>\n
that for the purpose of proper management, all the<\/p>\n
properties      be entrusted to Kadir Pillai.       Kadir Pillai<\/p>\n
possessed and managed the properties on behalf of the co-<\/p>\n
owners and he used to give them their due share of income.<\/p>\n
As regards 69 = cents in Sy. No.65\/2, the second plaintiff<\/p>\n
and the husband of the sixth plaintiff assigned their share<\/p>\n
to the first plaintiff.    So that he had 6\/14 shares.<\/p>\n
Muhammed, another son of late Kunjan Marakkar had filed<\/p>\n
O.S. 513 of 1964 for partition. Plaintiffs 3, 5 and the first<\/p>\n
defendant relinquished their shares in favour of the first<\/p>\n
S.A. 136\/1994.                   3<\/span><\/p>\n
plaintiff. Since then, the entire 69 = cents has become the<\/p>\n
property of the first plaintiff and that is not included the suit.<\/p>\n
He is the absolute owner thereof. The other two items were<\/p>\n
in the possession and management of Kadir Pillai and on his<\/p>\n
death his legal heirs are managing the same on behalf of all<\/p>\n
the co-sharers. Muhammed, who has filed O.S.            513    of<\/p>\n
1964 had also relinquished his rights over all the three items<\/p>\n
in favour of the first plaintiff and thereafter 69 = cents has<\/p>\n
become the absolute property of the first plaintiff.         One<\/p>\n
Abdul Rahiman had claimed right over plaint item No.2 and<\/p>\n
laid O.S. 97 of 1971making defendants 1 and 2 and Kadir<\/p>\n
Pillai as the defendants. That was dismissed. Thereafter the<\/p>\n
first and second defendant colluded with Abdul Rahiman and<\/p>\n
pulled down the hut in the property and put up a pucca<\/p>\n
building.     Kadir Pillai instituted O.S. 267 of 1979 for<\/p>\n
injunction against defendants 1 and 2. During the pendency<\/p>\n
of the suit, Kadir Pillai died and his legal heirs came on the<\/p>\n
party array. It seems that the matter was comprised and a<\/p>\n
deed was executed between the legal heirs of Kadir Pillai<\/p>\n
S.A. 136\/1994.                 4<\/span><\/p>\n
and defendants 1 and 2 without the junction of the other co-<\/p>\n
sharers. That transaction is not valid and binding on the<\/p>\n
plaintiffs.    The first and second defendant obtained<\/p>\n
kudikidappu right over 2nd item of property in collusion with<\/p>\n
defendants 7 to 13. They are not entitled to kudikidappu<\/p>\n
rights. Kadir Pillai could not have granted any permission to<\/p>\n
either the first defendant or to the second defendant to<\/p>\n
reside in the property and that in fact he has not given any<\/p>\n
consent also.      Even if Kadir Pillai has given any such<\/p>\n
permission, that is not binding on the plaintiffs. On the basis<\/p>\n
of these allegations the suit was laid for partition, whereby<\/p>\n
the plaintiffs claimed 8\/14 shares.\n<\/p>\n
             5. First defendant and defendants 2 to 6 filed<\/p>\n
written statements almost on the similar lines. They<\/p>\n
contended that they are not necessary parties to the suit<\/p>\n
and the suit is bad for mis-joinder as well as non-joinder of<\/p>\n
parties. They disputed the title of the plaintiffs. Item No.2<\/p>\n
as in the exclusive possession of Kadir Pillai and since<\/p>\n
defendants 1 and 2 did not have any abode of their own,<\/p>\n
S.A. 136\/1994.                  5<\/span><\/p>\n
they were allowed to reside and they have put up a building<\/p>\n
and are residing therein. The plaintiffs were fully aware of<\/p>\n
O.S. 267 of 1979 filed by Kadir Pillai and what transpired<\/p>\n
thereafter.       These defendants have purchased the<\/p>\n
kudikidapu rights by approaching the Land Tribunal<\/p>\n
concerned. The balance 3 = cents had been purchased by<\/p>\n
the first defendant as per document No.6077 of 1980.<\/p>\n
Based on these contentions, they prayed for a dismissal of<\/p>\n
the suit.\n<\/p>\n
             6.  Defendants 7 to 13 filed separate written<\/p>\n
statements. They are the wife and children of late Kadir<\/p>\n
Pillai. They disputed the claim of lease urged in the plaint of<\/p>\n
the year 1116 M.E. The alleged entrustment of property by<\/p>\n
the co-owners for management and administration to Kadir<\/p>\n
Pillai and the claim of sharing of income were disputed. The<\/p>\n
first plaintiff had sold his rights over the property to Kadir<\/p>\n
Pillai on 21.4.1960. Thereafter Kadir Pillai became the<\/p>\n
absolute owner. It was pointed out by them that after the<\/p>\n
death of Kunju Marakkar the properties were jointly held by<\/p>\n
S.A. 136\/1994.                  6<\/span><\/p>\n
the first plaintiff and Kadir Pillai only and the other sharers<\/p>\n
had no manner of rights over the properties.            It was<\/p>\n
thereafter     that  the  first  plaintiff had  executed   the<\/p>\n
assignment deed in favour of Kadir Pillai.       49 cents was<\/p>\n
assigned to the seventh defendant by Kadir Pillai. A building<\/p>\n
has been put up in that property and defendants 7 to 13 are<\/p>\n
residing therein. They contended that even if anybody else<\/p>\n
had any manner of right over the property, that was lost by<\/p>\n
adverse possession and limitation. In O.S. 97 of 1971 it was<\/p>\n
found that the properties belonged to Kadir Pillai. On the<\/p>\n
basis of these contentions, they pointed that the plaintiffs<\/p>\n
are not entitled to any reliefs and sought for a dismissal of<\/p>\n
the suit.\n<\/p>\n
             7.  The trial court raised necessary issues for<\/p>\n
consideration. The evidence consists of the testimony of<\/p>\n
P.W.1 and the documents marked as Exts.A1 to A15 from<\/p>\n
the side of the plaintiffs. The defendants had D.Ws. 1 and 2<\/p>\n
examined and Exts. B1 to B24 marked. On an appreciation<\/p>\n
of the materials before it, the court below found that the<\/p>\n
S.A. 136\/1994.                  7<\/span><\/p>\n
properties are partible and therefore passed a preliminary<\/p>\n
decree, which reads as follows:\n<\/p>\n
                 “In the result, a preliminary decree is<\/p>\n
      passed allotting 1st plaintiff 6\/14 share in plaint<\/p>\n
      item No.1, 3rd plaintiff, 4th plaintiff, 5th plaintiff<\/p>\n
      and 1st defendant each 1\/14 share in item No.1<\/p>\n
      and defendant 7 to 13 together allotted         4\/14<\/p>\n
      share in item No.1 over 3.850 cents of plaint item<\/p>\n
      No.2 first plaintiff is allotted 4\/14 share.      2nd<\/p>\n
      plaintiff is allotted 2\/14 share, 3rd plaintiff, 4th<\/p>\n
      plaintiff, 5th plaintiff each 1\/14 share and 1st<\/p>\n
      defendant 3\/14.      Plaintiffs are entitled to get<\/p>\n
      proportionate mesne profit. Plaintiffs are allowed<\/p>\n
      to apply for passing a final decree within 3 months<\/p>\n
      from this date where in a commissioner will be<\/p>\n
      appointed to divide, demarcate the property by<\/p>\n
      metes and bounds and allot the shares to parties<\/p>\n
      in accordance with the preliminary decree. The<\/p>\n
      Commissioner will also ascertain the mesne profits<\/p>\n
      from the property. The quantum of mesne profits<\/p>\n
      will be determined in the final decree.      Suit is<\/p>\n
      partly decreed without costs.”<\/p>\n
             8. Defendants 7 to 13 carried the matter in appeal<\/p>\n
as A.S.110 of 1987 and the aggrieved plaintiffs carried the<\/p>\n
S.A. 136\/1994.                 8<\/span><\/p>\n
matter in appeal as A.S. 111 of 1987. The appellate court on<\/p>\n
an independent evaluation of the evidence in the case found<\/p>\n
the case set up by defendants 7 to 3 to be true and<\/p>\n
accordingly allowed their appeal.      The other appeal was<\/p>\n
dismissed. Thus the properties became non-partible.<\/p><\/blockquote>\n
             9. Aggrieved by the appellate court judgment and<\/p>\n
decree, the plaintiffs have come up in appeal. During the<\/p>\n
pendency of the appeal the fourth defendant died and since<\/p>\n
his legal heirs are already on the party array, the same was<\/p>\n
recorded. The 14th defendant also died and his legal heirs<\/p>\n
were brought on the party array as respondents 15 to 22.<\/p>\n
             10.  In the appeal before lower court, while<\/p>\n
defendants 7 to 13 had attacked the trial court judgment,<\/p>\n
the appeal by the plaintiffs was against the rejection of the<\/p>\n
claim of partition of 10 cents in item No.2, wherein<\/p>\n
defendants 1 and 2 had obtained kudikidappu rights. The<\/p>\n
appellate court held that as regards item No.1, the claim of<\/p>\n
the plaintiffs have been barred by adverse possession and<\/p>\n
limitation.\n<\/p>\n
S.A. 136\/1994.                  9<\/span><\/p>\n
             11. The following substantial questions of law are<\/p>\n
seen raised in this Second Appeal:\n<\/p>\n
                 “A)    Is the court below justified in<\/p>\n
      entering findings without assigning reasons and<\/p>\n
      discussing the facts evidence and the law on the<\/p>\n
      points. Being fact finding court whether the court<\/p>\n
      below can decide the dispute in such arbitrary<\/p>\n
      manner.\n<\/p>\n
                 B)   Whether Ext.B1      document takes<\/p>\n
      away the rights of 1st plaintiff which he obtained<\/p>\n
      as per Ext.A2 and A7. When there is no mention<\/p>\n
      about Ext.A2in Ext.B1 document and when Ext.A7<\/p>\n
      is much after Ext.B1.\n<\/p>\n
                 C)  Whether Ext.B1 will extinguish the<\/p>\n
      co-ownership rights of other co-owners who are<\/p>\n
      not parties to the same and whether Ext.B1 will<\/p>\n
      give absolute right to Kadir Pillai.\n<\/p>\n
                 D)  Whether the respondents 7 to 13,<\/p>\n
      who claims title by release, can claim absolute<\/p>\n
      right by adverse possession and ouster which was<\/p>\n
      not claimed by their predecessor Kadir Pillai.<\/p>\n
                 E)  Whether the plea of oral transfer<\/p>\n
      which is not pleaded by respondents 7 to 13 in<\/p>\n
      their written statement and in respect of which no<\/p>\n
S.A. 136\/1994.                10<\/span><\/p>\n
      issue was framed before court below and no<\/p>\n
      evidence was adduced can be agitated for the first<\/p>\n
      time before the appellate court.\n<\/p>\n
                 F) When one of the co-owners transfers<\/p>\n
      his rights over the co-ownership property can that<\/p>\n
      affect and bind the rights of other co-owners.<\/p>\n
      Whether such transfer can be ignored by the other<\/p>\n
      co-owners in getting their shares.\n<\/p>\n
                 G)   Whether a permission to erect<\/p>\n
      homestead given by one of the co-owners over the<\/p>\n
      joint property bind other co-owners and whether<\/p>\n
      the other co-owners can ignore such actions in<\/p>\n
      getting their share.\n<\/p>\n
                 H) Whether the patta obtained without<\/p>\n
      making all the co-owners parties can bind them<\/p>\n
      and whether that can be avoided by the co-owners<\/p>\n
      who were not parties to the proceeding and who<\/p>\n
      have not given permission to erect a homestead.”<\/p>\n
             12. Learned counsel appearing for the appellants<\/p>\n
raised three points for consideration, 1) the finding that the<\/p>\n
claim of the plaintiffs is lost by adverse possession and<\/p>\n
limitation is wrong, 2) property originally belonged to Kunjan<\/p>\n
Marakkar, who is the predecessor in interest of the plaintiffs<\/p>\n
S.A. 136\/1994.                  11<\/span><\/p>\n
and defendants and on his death therefore the property<\/p>\n
devolved on his legal heirs, 3) purchase certificate obtained<\/p>\n
by defendants 1 and 2 are not binding on the plaintiffs.<\/p>\n
             13. Learned counsel pointed out that item Nos. 1<\/p>\n
and 2 admittedly were acquired by Kunjan Marakker on<\/p>\n
lease.      After the death of Kunjan Marakkar therefore<\/p>\n
naturally the legal heirs, who are the plaintiffs and<\/p>\n
defendant No.1 and Kadir Pillai, the predecessor in interest<\/p>\n
of defendants 7 to 13, succeed to the property.          In fact<\/p>\n
Kunjan Marakkar acquired item Nos. 1 and 2, and 69 =<\/p>\n
cents in Sy. No. 651\/2 and ie.,        1 acre 16 cents in Sy.<\/p>\n
No.651\/8A and 8B. There is nothing to show that after the<\/p>\n
death of Kunjan Marakkar, the properties were exclusively<\/p>\n
possessed and enjoyed by the first plaintiff and Kadir Pillai.<\/p>\n
The assignment deed said to have been executed by the<\/p>\n
first plaintiff in favour of Kadir Pillai can at best affect the<\/p>\n
rights of the first plaintiff and can have no value as regards<\/p>\n
the other plaintiffs are concerned.       The court below was<\/p>\n
wrong in law in having accepted the plea of ouster put<\/p>\n
S.A. 136\/1994.                    12<\/span><\/p>\n
forward by defendants 7 to 13. A co-owner in possession is<\/p>\n
deemed to be in possession on behalf of all the co-owners.<\/p>\n
Unless it is shown by clear, convincing and cogent evidence<\/p>\n
that the other co-sharers have been expressly excluded from<\/p>\n
sharing the properties and their title had been denied, a co-<\/p>\n
sharer cannot succeed on the plea of adverse possession<\/p>\n
and limitation. Then again the permission granted by Kadir<\/p>\n
Pillai to defendants 1 and 2 to occupy the land and put up<\/p>\n
building therein cannot bind the other co-owners. He is not<\/p>\n
competent to do so. Accordingly, it is contended that the<\/p>\n
decree of the lower appellate court below is bad in law.<\/p>\n
Learned counsel in support of his case relied on the<\/p>\n
following decisions:\n<\/p>\n
             i) 2005(1) K.L.T. 864<\/p>\n<\/blockquote>\n
             ii) (2006) 7 SCC 570<\/p>\n<\/blockquote>\n
             iii) (2007) 6 SCC 59<\/p>\n<\/blockquote>\n
             iv) 2005 (4) K.L.T. 653<\/p>\n<\/blockquote>\n
             v) (1995) 2 SCC 543<\/p>\n<\/blockquote>\n
             vi) AIR 1981 SC 77<\/p>\n
S.A. 136\/1994.                  13<\/span><\/p>\n<\/blockquote>\n
             14. Per contra, learned counsel appearing for the<\/p>\n
contesting respondents pointed out that the court below has<\/p>\n
addressed itself to the questions involved in the proper<\/p>\n
perspective and has come to the correct conclusion. The<\/p>\n
court below has found that          after the death of Kunhi<\/p>\n
Marakkar, the first plaintiff and late Kadir Pillai came into<\/p>\n
possession of the suit properties independently and others<\/p>\n
had no right in the properties. They held the properties as<\/p>\n
their own. Later between them, 69 = cents was given to<\/p>\n
the first plaintiff and the other item of property, 1.16 acres<\/p>\n
was given to Kadir Pillai. Kadir Pillai independently acquired<\/p>\n
13 = cents. It is true, according to learned counsel, that the<\/p>\n
first plaintiff has got release deed from other legal heirs of<\/p>\n
Kunhi Marakkar. But that is only a clever ploy adopted by<\/p>\n
the first plaintiff to deny the legitimate rights of Kadir Pillai<\/p>\n
over the properties given to him. Those persons who have<\/p>\n
executed release deed in favour of the first plaintiff infact<\/p>\n
have no manner of right over the properties. The recitals in<\/p>\n
the release deed itself will reveal this fact. Even the first<\/p>\n
S.A. 136\/1994.                  14<\/span><\/p>\n
plaintiff in various litigations had clearly asserted that the<\/p>\n
properties belonged exclusively to him and late Kadir Pillai<\/p>\n
and that no other person person had any manner of right<\/p>\n
over the same. It comes with little grace from him now to<\/p>\n
say that others also have rights over the suit properties. It<\/p>\n
is clear that after having made his possession safe, the first<\/p>\n
plaintiff had instigated others, who never had any right in<\/p>\n
the property and who never assailed the rights exercised by<\/p>\n
the first plaintiff and late Kadir Pillai to file the present suit.<\/p>\n<\/blockquote>\n
It is clear that the intention of the first plaintiff is to make<\/p>\n
gain for himself. It is significant to notice that only the first<\/p>\n
plaintiff who has managed to secure to himself with 69 =<\/p>\n
cents has given evidence in the case. None of the other<\/p>\n
sharers have come forward to give evidence. It must be<\/p>\n
noticed that the suit was laid 32 years after the death of<\/p>\n
Kunjan Marakkar and also after the death of Kadir Pillai. The<\/p>\n
suit lacks bonafides. To constitute ouster of other co-sharers<\/p>\n
there need not be any belligerent or violent conduct on the<\/p>\n
part of the person in possession. It is sufficient to show that<\/p>\n
S.A. 136\/1994.                   15<\/span><\/p>\n
the said co-sharer had treated the property as exclusively<\/p>\n
belonging to him and he had not shared any income with<\/p>\n
other co-sharers and that he has asserted the hostile title as<\/p>\n
against them.      Such evidence is available in the case on<\/p>\n
hand and it was on that basis the court below non-suited the<\/p>\n
plaintiffs.   Learned counsel therefore contended that no<\/p>\n
grounds are made out to interfere with the judgment and<\/p>\n
decree of the lower appellate court.\n<\/p>\n
             15. After hearing elaborately both sides, it is felt<\/p>\n
that there is much force in the contention raised by the<\/p>\n
learned counsel for the respondents in this appeal.          The<\/p>\n
reasons follow.\n<\/p>\n
             16. It is not in dispute that the property originally<\/p>\n
belonged to Kunjan Marakkar. He held them on leasehold<\/p>\n
right. He died in 1949. Normally as per law, the leasehold<\/p>\n
right then devolve on the children of Kunju Marakkar. But<\/p>\n
according to defendants 7 to 13 after the death of Kunju<\/p>\n
Marakkar, the properties were exclusively possessed and<\/p>\n
enjoyed by the first plaintiff and Kadir Pillai. None of the<\/p>\n
S.A. 136\/1994.                  16<\/span><\/p>\n
other legal heirs ever asserted any right over the suit items.<\/p>\n
Thereafter there was an understanding between the first<\/p>\n
plaintiff and Kadir Pillai, whereby 69 = cents was given to<\/p>\n
the first plaintiff and Kadir Pillai was given the other item of<\/p>\n
property. Thereafter Kadir Pillai released his rights over 69<\/p>\n
= cents in favour of       the first plaintiff. In turn the first<\/p>\n
plaintiff executed a deed in favour of Kadir Pillai releasing all<\/p>\n
his rights over the property set apart to Kadir Pillai. It was<\/p>\n
therefore contended by defendants 7 to 13 that Kadir Pillai<\/p>\n
ever since the release deed in favour of the first plaintiff<\/p>\n
had been enjoying the property asserting his rights in<\/p>\n
exclusion of all the co-sharers.\n<\/p>\n
             17.    Another issue that is thrown up for<\/p>\n
consideration is regarding the competency of Kadir Pillai to<\/p>\n
give permission to defendants 1 and 2 to occupy the land for<\/p>\n
residing. They succeeded in getting kudikidappu rights over<\/p>\n
the property. Now the question is whether that is binding on<\/p>\n
the other co-owners and what exactly is the right of Kadir<\/p>\n
Pillai to grant permission.\n<\/p>\n
S.A. 136\/1994.                  17<\/span><\/p>\n
             18. As already noticed that this is an accepted<\/p>\n
case that the properties originally belonged to Kunju<\/p>\n
Marakkar.     The case put forward by the plaintiffs is that<\/p>\n
consequent on the death of Kunji Marakkar, the leasehold<\/p>\n
rights devolved on all the legal heirs. As far as 69 = cents in<\/p>\n
Sy. No.651\/2 is concerned, all sharers had relinquished their<\/p>\n
rights in favour of the first plaintiff and therefore he became<\/p>\n
the absolute owner thereof. Plaintiffs’ case is that as far as<\/p>\n
the suit properties are concerned, they are entitled to a<\/p>\n
share and the first plaintiff asserts that he is entitled to 8\/14<\/p>\n
share. The contention of defendants 7 to 13 had already<\/p>\n
been adverted to. It is pointed out by them that as per<\/p>\n
Ext.A1 document, the first plaintiff obtained jenm right over<\/p>\n
the properties and the recital in the said document will<\/p>\n
clearly show that the first plaintiff had accepted the fact that<\/p>\n
after the death of Kunji Marakkar the suit properties, 69 =<\/p>\n
cents and 1.16 acres owned by the predecessor in interest<\/p>\n
of the plaintiffs taken were in the exclusive possession and<\/p>\n
enjoyment of the     first plaintiff and Kadir Pillai. It is clear<\/p>\n
S.A. 136\/1994.                  18<\/span><\/p>\n
from a reading of that document that no other legal heirs of<\/p>\n
Kunji Marakkar had any manner of right over the property.<\/p>\n
Thereafter by Ext.B1 dated 21.4.1960, the first plaintiff has<\/p>\n
assigned 1.16 acres of land in favour of Kadir Pillai. In turn,<\/p>\n
Kadir Pillai released rights over 69 = cents in favour of the<\/p>\n
first plaintiff. It was thereafter that Exts. A2, A5, A6, At and<\/p>\n
A8 that the first plaintiff had obtained to get release deeds<\/p>\n
from other sharers        in respect of 69 = cents.          The<\/p>\n
defendants pointed out that the mere fact that first plaintiff<\/p>\n
has cleverly chosen to obtain release deed from others does<\/p>\n
not lead to the conclusion that the suit properties were held<\/p>\n
in common.\n<\/p>\n
             19. While things stood thus, one Abdul Rahiman<\/p>\n
filed O.S. 97 of 1971.       Property involved was plaint item<\/p>\n
No.2. Late Kadir Pillai and defendants 1 and 2 were parties<\/p>\n
to the said suit. In the said suit, Kadir Pillai filed a written<\/p>\n
statement controverting the rights claimed by Abdul<\/p>\n
Rahiman.       In his written statement, he traced his title<\/p>\n
through Kunju Marakkar and took the stand that he was in<\/p>\n
S.A. 136\/1994.                    19<\/span><\/p>\n
possession of the property after the death of Kunju Marakkar<\/p>\n
as agreed to by all the legal heirs. The suit was dismissed<\/p>\n
and the dismissal was confirmed in appeal.                Written<\/p>\n
statement of Kadir Pillai in the said suit is Ext.B4 and<\/p>\n
Ext.B11 is the judgment in OS. 97 of 1971. Ext.B11 refers to<\/p>\n
various other litigations also.\n<\/p>\n
             20. Plaintiffs laid claim on the basis that while the<\/p>\n
case of 69 = cents in respect of which both jenm right and<\/p>\n
kudikidappu right vested with the first plaintiff in the case of<\/p>\n
the suit property Kadir Pillai has got assignment of the rights<\/p>\n
of the first first plaintiff alone and the rights of other<\/p>\n
plaintiffs remained with them.\n<\/p>\n
             21.  Two main contentions are seen raised by<\/p>\n
defendants 7 to 13, they are 1) consequent on the death of<\/p>\n
Kunji Marakkar, the rights which he enjoyed over the suit<\/p>\n
property came to vests with the first plaintiff and Kadir Pillai.<\/p>\n
2) After obtaining       jenm right, first plaintiff assigned his<\/p>\n
rights over the suit properties in favour of Kadir Pillai. In<\/p>\n
turn Kadir Pillai assigned his rights over 69 = cents . It is<\/p>\n
S.A. 136\/1994.                   20<\/span><\/p>\n
significant to notice that in Ext.A1 document by which jenm<\/p>\n
right was acquired by the first plaintiff, there is clear recital<\/p>\n
to the effect that consequent on the death of Kunji Marakkar<\/p>\n
the entire properties held on leasehold by the first plaintiff<\/p>\n
and late Kadir Pillai.\n<\/p>\n
             22. It is important to notice that Muhammed, S\/o.<\/p>\n
Kunji Marakkar in his second wife had instituted O.S. 513 of<\/p>\n
1964 for partition. He had made all the legal heirs of Kunji<\/p>\n
Marakkar has parties to the suit. First plaintiff was the first<\/p>\n
defendant and Kadir Pillai was the second defendant. They<\/p>\n
alone contested the suit. Others remained ex parte. First<\/p>\n
plaintiff filed Ext.B3 written statement. Kadir Pillai filed Ext.<\/p>\n
B2 written statement. There, both had asserted that after<\/p>\n
the death of Kunji Marakkar items of properties taken on<\/p>\n
lease by Kunji Marakkar came to vest with the first plaintiff<\/p>\n
and laid Kadir Pillai, or in other words 69 = cents Sy. No.<\/p>\n
652\/2 and one acre and 16 cents in the other survey<\/p>\n
numbers came into the exclusive possession of the first<\/p>\n
plaintiff and Kadir Pillai. It is seen from the records that the<\/p>\n
S.A. 136\/1994.                 21<\/span><\/p>\n
said suit was later compromised.            On this basis it is<\/p>\n
contended by defendants 7 to 13 that after the death of<\/p>\n
Kunji Marakkar first plaintiff and late Kadir Pillai alone<\/p>\n
owned, possessed and enjoyed both the items. It is pointed<\/p>\n
out by defendants 3 to 7 that at no point of time any of the<\/p>\n
sharers had demanded their share of income nor was any<\/p>\n
share of income paid to them.             The court below has<\/p>\n
accepted that going by Exts. B1, B2 and B3 there is a clear<\/p>\n
assertion by the first plaintiff and Kadir Pillai that the suit<\/p>\n
items along with 69 = cents belonged exclusively to them.<\/p>\n
One must notice here that Exts.B2 and B3 written<\/p>\n
statements were filed in a suit to which all other heirs of<\/p>\n
Kunji Marakkar were parties. Therefore it must be presumed<\/p>\n
that the other sharers knew about the contention taken by<\/p>\n
the first plaintiff and late Kadir Pillai. It needs to be noticed<\/p>\n
at this point of time that the present suit is laid in 1981.<\/p>\n
             23. Once it is accepted that Kunji Marakkar was<\/p>\n
the owner of the property, normally on his death all his heirs<\/p>\n
succeeded to the property as tenants in common. Mere non-<\/p>\n
S.A. 136\/1994.                 22<\/span><\/p>\n
participation in management, non-receipt of income by co-<\/p>\n
sharers or non-payment by the co-sharer in possession may<\/p>\n
not by themselves be sufficient to constitute ouster. A co-<\/p>\n
owner is deemed to be in possession on behalf of all the<\/p>\n
sharers. The burden is heavy on the co-sharer to show that<\/p>\n
there was assertion of title hostile to the co-owner and<\/p>\n
ouster is against the other co-sharers. May be that they<\/p>\n
have not been given their share of properties, or mere<\/p>\n
possession and enjoyment are not by itself sufficient.<\/p>\n
             24. According to learned counsel appearing for<\/p>\n
the    appellants in the case on hand there is no proof of<\/p>\n
ouster and in fact the evidence is to the contrary. Therefore<\/p>\n
it is contended that the lower appellate court ought not to<\/p>\n
have interfered with the decree of the trial court.<\/p>\n
             25.   Learned    counsel   appearing    for   the<\/p>\n
respondents did not dispute the proposition of law. On the<\/p>\n
other hand he contended that there is sufficient evidence to<\/p>\n
show that after the death of Kunji Marakkar, the first plaintiff<\/p>\n
and late Kadir Pillai came into exclusive possession and<\/p>\n
S.A. 136\/1994.                23<\/span><\/p>\n
enjoyment of the suit properties and none of the other co-<\/p>\n
sharers ever had any manner of right over the same.<\/p>\n
According to learned counsel for the respondents from the<\/p>\n
date of Ext.A1 assignment in favour of the first plaintiff of<\/p>\n
the jenm rights, even according to the first plaintiff they<\/p>\n
have been in exclusive possession and enjoyment in respect<\/p>\n
of 1.16 acres and 69 = cents. Learned counsel also pointed<\/p>\n
out that in the suit by Muhammed all the legal heirs were<\/p>\n
parties. While the first plaintiff and late Kadir Pillai alone<\/p>\n
contested and others chose to remain ex-parte.         It was<\/p>\n
pointed out that in the written statement filed by defendants<\/p>\n
1 and 2 in the said suit, they had asserted rights in<\/p>\n
themselves and the other co-sharers should be deemed to<\/p>\n
have knowledge about the same.         According to learned<\/p>\n
counsel, it is not the law that there can never be a claim of<\/p>\n
adverse possession against a co-owner. Learned counsel<\/p>\n
accepted that a high degree of proof is required. But learned<\/p>\n
counsel invited the attention of this court to the various<\/p>\n
litigations between the parties, the conduct of the parties, to<\/p>\n
S.A. 136\/1994.                   24<\/span><\/p>\n
emphasis that there is nothing to show that after the<\/p>\n
death of Kunji Marakkar the suit properties were enjoyed in<\/p>\n
common by any of the sharers at any point of time and the<\/p>\n
co-sharers had demanded profits or share of profit was paid<\/p>\n
or asserted any manner of right over the suit properties.<\/p>\n
Accordingly,       learned   counsel   pointed   out    that  no<\/p>\n
interference is called for with the judgment and decree of<\/p>\n
the lower appellate court.        In support of his contentions,<\/p>\n
learned counsel relied on the decisions reported in<\/p>\n
             i) 48 I.C. 692<\/p>\n
             ii) AIR 1926 Calcutta 589<\/p>\n
             iii) AIR 1972 Madras 467<\/p>\n
             iv) AIR 1977 Madhya Pradesh 34<\/p>\n
             v) AIR 1936 Nagpore 232<\/p>\n
             vi) AIR 1957 SC 314<\/p>\n
             vii) 1969 K.L.T. 121<\/p>\n
             viii) AIR 1977 Kerala 241<\/p>\n
             ix) AIR 1925 Lahore 125<\/p>\n
             x) AIR 1950 PC 344<\/p>\n
             26. Before going further, it is useful to refer what<\/p>\n
is meant by adverse possession. The classic requirements<\/p>\n
S.A. 136\/1994.                 25<\/span><\/p>\n
of adverse possession are that possession must be nec vi<\/p>\n
nec clan nec precario, that is possession must be adequate<\/p>\n
in continuity, publicity and in extent.    There must be an<\/p>\n
animus to hold it adversely to the true holder. The claim of<\/p>\n
adverse possession involves a claim in derogation of the<\/p>\n
rights of the real owner or in other words one who claims<\/p>\n
adverse possession admits that title belongs to another<\/p>\n
person.       It actually means that possession of a person<\/p>\n
holding the land on his own behalf or on behalf of some<\/p>\n
person other than the real owner having a right to<\/p>\n
immediate possession. Adverse possession is a possession<\/p>\n
that is hostile, under a claim or colour of title, actual, open,<\/p>\n
notorious, exclusive and continuous.\n<\/p>\n
             27. As regards the co-owners are concerned, the<\/p>\n
law is that there can be no adverse possession by a co-<\/p>\n
owner, unless there has been denial of title and ouster to<\/p>\n
the knowledge of others.         Normally, the rule is that<\/p>\n
possession of co-owner is possession on behalf of all the<\/p>\n
S.A. 136\/1994.                 26<\/span><\/p>\n
other co-owners. Now one may refer to the decisions cited<\/p>\n
by both sides.\n<\/p>\n
             28. In the decision reported in George Thomas<\/p>\n
v. Geondy Joseph<\/a> (2005(1)K.L.T. 864) it was held as<\/p>\n
follows:\n<\/p>\n
                 “A mere possession in the relief clause<\/p>\n
      that there was an uninterrupted possession for<\/p>\n
      several 12 years or that the plaintiff had acquired<\/p>\n
      an absolute title is not enough to raise such a<\/p>\n
      plea. Long possession is not necessarily adverse<\/p>\n
      possession and the prayer clause is not a<\/p>\n
      substitute for a plea.    Concrete proof of open,<\/p>\n
      hostile and continuous possession is required in<\/p>\n
      order to substantiate a claim of perfection of title<\/p>\n
      by adverse possession. Verifiable details of the<\/p>\n
      nature of the occupation would be essential and<\/p>\n
      mere     assertions   would   not    be   adequate<\/p>\n
      substitute.”\n<\/p><\/blockquote>\n
             29. In the decision reported in T. Anjanappa v.<\/p>\n
Somalingappa<\/a> ((2006) 7 SCC 570), it was held as follows:<\/p>\n<\/blockquote>\n
                 “The concept of adverse possession<\/p>\n
      contemplates     a   hostile  possession    i.e.  a<\/p>\n
S.A. 136\/1994.                     27<\/span><\/p>\n
      possession which is expressly or impliedly in<\/p>\n
      denial of the title of the true owner. Possession to<\/p>\n
      be adverse must be possession by a person who<\/p>\n
      does not acknowledge the other’s rights but<\/p>\n
      denies them.        The principle of law is firmly<\/p>\n
      established that a person who bases his title on<\/p>\n
      adverse possession must show by clear and<\/p>\n
      unequivocal evidence that his possession was<\/p>\n
      hostile to the real owner and amounted to denial<\/p>\n
      of his title to the property claimed. For deciding<\/p>\n
      whether the alleged acts of a person constituted<\/p>\n
      adverse possession, the animus of the person<\/p>\n
      doing those acts is the most crucial factor.<\/p>\n
      Adverse possession is commenced in wrong and is<\/p>\n
      aimed against right. A person is said to hold the<\/p>\n
      property adversely to the real owner when that<\/p>\n
      person in denial of the owner’s right excluded him<\/p>\n
      from the enjoyment of his property.<\/p><\/blockquote>\n
<\/blockquote>\n
                  Possession to be adverse must be<\/p>\n
      possession       by   a    person    who    does     not<\/p>\n
      acknowledge the other’s rights but denies them:<\/p>\n<\/blockquote>\n
             “24. It is a mater of fundamental principle of law<\/p>\n
      that where possession can be referred to a lawful title,<\/p>\n
      it will not be considered to be adverse. It is on the<\/p>\n
      basis of this principle that it has been laid down that<\/p>\n
S.A. 136\/1994.                    28<\/span><\/p>\n
      since the possession of one co-owner can be referred<\/p>\n
      to his status as co-owner, it cannot be     considered<\/p>\n
      adverse to other co-owners.”\n<\/p><\/blockquote>\n
             Adverse      possession  is   that    form    of\n\n      possession       or  occupancy   of land     which    is\n\n<\/pre>\n
      inconsistent with the title of the rightful owner and<\/p>\n
      tends to extinguish that person’s title. Possession<\/p>\n
      is not held to be adverse if it can be referred to a<\/p>\n
      lawful title.      The person setting up adverse<\/p>\n
      possession may have been holding under the<\/p>\n
      rightful owner’s title e.g. trustees, guardians,<\/p>\n
      bailiffs or agents.     Such persons cannot set up<\/p>\n
      adverse possession:\n<\/p><\/blockquote>\n
             “14…….Adverse possession   means     [hostile<\/p>\n
      possession] which is expressly or impliedly in denial of<\/p>\n
      title of the true owner.     Under Article 65 [of the<\/p>\n
      Limitation Act,] burden is on the defendants to prove<\/p>\n
      affirmatively. A person who bases his title on adverse<\/p>\n
      possession must show by clear and unequivocal<\/p>\n
      evidence i.e. possession was hostile to the real owner<\/p>\n
      and amounted to a denial of his title to the property<\/p>\n
      claimed. In deciding whether the acts, alleged by a<\/p>\n
      person, constitute adverse possession, regard must be<\/p>\n
      had to the animus of the person doing those acts<\/p>\n
      which must be ascertained from the facts and<\/p>\n
      circumstances of each case. The person who bases his<\/p>\n
S.A. 136\/1994.                     29<\/span><\/p>\n
      title on adverse possession, therefore, must show by<\/p>\n
      clear and unequivocal evidence i.e. possession was<\/p>\n
      hostile to the real owner and amounted to a denial of<\/p>\n
      his title to the property claimed……<\/p>\n<\/blockquote>\n
             15. Where possession can be referred to a lawful<\/p>\n
      title, it will not be considered to be adverse.      The<\/p>\n
      reason being that a person whose possession can be<\/p>\n
      referred to a lawful title will not be permitted to show<\/p>\n
      that his possession was hostile to another’s title. One<\/p>\n
      who holds possession on behalf of another, does not<\/p>\n
      by mere denial of that other’s title make his<\/p>\n
      possession adverse so as to give himself the benefit of<\/p>\n
      the statute of limitation.     Therefore, a person who<\/p>\n
      enters into possession having a lawful title, cannot<\/p>\n
      divest another of that title by pretending that he had<\/p>\n
      no title at all.   (See Annasaheb Bapusaheb Patil v.<\/p>\n
      Balwant, (1995) 2 SCC 554, paras 14-15).”<\/p>\n<\/blockquote>\n
             An occupation of reality is inconsistent with<\/p>\n
      the right of the true owner.           Where a person<\/p>\n
      possesses property in a manner in which he is not<\/p>\n
      entitled to possess it, and without anything to<\/p>\n
      show that he possesses it otherwise than an<\/p>\n
      owner (that is, with the intention of excluding all<\/p>\n
      persons from it, including the rightful owner), he is<\/p>\n
      in adverse possession of it.           Thus, if A is in<\/p>\n
      possession of a field of B’s, he is in adverse<\/p>\n
S.A. 136\/1994.                    30<\/span><\/p>\n
      possession of it unless there is something to show<\/p>\n
      that his possession is consistent with a recognition<\/p>\n
      of B’s title. (See Ward v. Carttar) Adverse<\/p>\n
      possession is of two kinds, according as it was<\/p>\n
      adverse from the beginning, or has become so<\/p>\n
      subsequently.       Thus, if a mere trespasser takes<\/p>\n
      possession of A’s property, and retains it against<\/p>\n
      him, his possession is adverse ab initio. But if A<\/p>\n
      grants a lease of land to B, or B obtains<\/p>\n
      possession of the land as A’s bailiff, or guardian,<\/p>\n
      or trustee, his possession can only become<\/p>\n
      adverse by some change in his position. Adverse<\/p>\n
      possession        not only    entitles  the       adverse<\/p>\n
      possessor, like every other possessor, to be<\/p>\n
      protected in his possession against all who cannot<\/p>\n
      show a better title, but also, if the adverse<\/p>\n
      possessor remains in possession for a certain<\/p>\n
      period of time produces the effect either of<\/p>\n
      barring the right of the true owner, and thus<\/p>\n
      converting the possessor into the owner, or of<\/p>\n
      depriving the true owner of his right of action to<\/p>\n
      recover his property and this although the true<\/p>\n
      owner is ignorant of the adverse possessor being<\/p>\n
      in occupation.\n<\/p><\/blockquote>\n
             ………..                    ………….\n<\/p><\/blockquote>\n
S.A. 136\/1994.                   31<\/span><\/p>\n
             It is well recognised proposition in law that<\/p>\n
      mere      possession   however     long   does  not<\/p>\n
      necessarily mean that it is adverse to the true<\/p>\n
      owner. Adverse possession really means the<\/p>\n
      hostile possession which is expressly or impliedly<\/p>\n
      in denial of title of the true owner and in order to<\/p>\n
      constitute adverse possession the possession<\/p>\n
      proved must be adequate in continuity, in<\/p>\n
      publicity and in extent so as to show that it is<\/p>\n
      adverse to the true owner.             The classical<\/p>\n
      requirements of acquisition of title by adverse<\/p>\n
      possession are that such possession in denial of<\/p>\n
      the true owner’s title must be peaceful, open and<\/p>\n
      continuous. The possession must be open and<\/p>\n
      hostile enough to be capable of being known by<\/p>\n
      the parties interested in the property, though it is<\/p>\n
      not necessary that there should be evidence of<\/p>\n
      the adverse possessor actually informing the real<\/p>\n
      owner of the former’s hostile action.”<\/p>\n<\/blockquote>\n
             30.      In   the   decision   reported  in  P.T.\n<\/p><\/blockquote>\n
Munichikkanna Reddy v. Revamma ((2007) 6 SCC 59), it<\/p>\n
was held as follows:\n<\/p><\/blockquote>\n
             “The law in this behalf has undergone a<\/p>\n
      change.      In terms of Articles 142 and 144 of the<\/p>\n
S.A. 136\/1994.                   32<\/span><\/p>\n
      Limitation Act, 1908, the burden of proof was on<\/p>\n
      the plaintiff to show within 12 years from the date<\/p>\n
      of institution of the     suit that he had title and<\/p>\n
      possession of the land, whereas in terms of<\/p>\n
      Articles 64 and 65 of the Limitation Act, 1963, the<\/p>\n
      legal position has underwent complete           change<\/p>\n
      insofar as the onus is concerned: once a party<\/p>\n
      proves its title, the onus of proof would be on the<\/p>\n
      other party to prove claims of title by adverse<\/p>\n
      possession. The ingredients of adverse possession<\/p>\n
      have succinctly been stated by this Court in S.M.<\/p>\n
      Karim v. Bibi Sakina<\/a> in the following terms:<\/p>\n<\/blockquote>\n
             “Adverse possession must be adequate in<\/p>\n
      continuity, in publicity and extent and a plea is<\/p>\n
      required at the least to show when possession<\/p>\n
      becomes adverse so that the starting point of<\/p>\n
      limitation against the party affected can be found.”<\/p>\n<\/blockquote>\n
             The   aforementioned      principle  has     been<\/p>\n
      reiterated by this Court in Saroop Singh v. Banto<\/a><\/p>\n
      stating:\n<\/p><\/blockquote>\n
             “29. In terms of Article 65 the starting point of<\/p>\n
      limitation does not commence from the date when the<\/p>\n
      right   of   ownership  arises   to   the  plaintiff but<\/p>\n
      commences from the date the defendant’s possession<\/p>\n
      becomes adverse. (See Vasantiben Prahladji Nayak v.<\/p>\n
      Somnath Muljibhai Nayak).\n<\/p><\/blockquote>\n
S.A. 136\/1994.                   33<\/span><\/p>\n<\/blockquote>\n
             30. ‘Animus possidendi’ is one of the ingredients<\/p>\n
      of adverse possession. Unless the person possessing<\/p>\n
      the land has a requisite animus the period of<\/p>\n
      prescription does not commence.      As in the instant<\/p>\n
      case, the appellant categorically states that his<\/p>\n
      possession is not adverse as that of true owner, the<\/p>\n
      logical corollary is that he did not have the requisite<\/p>\n
      animus (See Mohd.Mohd. ali v. Jagadish Kalita, SCC<\/p>\n
      para 21.)<\/p>\n
             In Mohammadbhai Kasambhai Sheikh v.<\/p>\n
      Abdulla Kasambhai Sheikh this court held:<\/p>\n<\/blockquote>\n
             “But as has been held in Mahomedally<\/p>\n
      Tyebally v. Safiabai the heirs of Mohammedans<\/p>\n
      (which the parties before us are) succeed to the<\/p>\n
      estate in specific shares as tenants-in-common<\/p>\n
      and a suit by an heir         for his\/her share was<\/p>\n
      governed, as regards immovable property, by<\/p>\n
      Article 144 of the Limitation Act, 1908. Article 144<\/p>\n
      of the Limitation Act, 1908 has been materially re-<\/p>\n
      enacted as Article 65 of the Limitation Act, 1963<\/p>\n
      and provides that the suit for possession of<\/p>\n
      immovable property or any interest therein based<\/p>\n
      on title must be filed within a period of 12 years<\/p>\n
      from the date when the possession of the<\/p>\n
      defendant becomes adverse to the plaintiff.<\/p>\n
      Therefore, unless the defendant raises the defence<\/p>\n
S.A. 136\/1994.                  34<\/span><\/p>\n
      of adverse possession to a claim for a share by an<\/p>\n
      heir to ancestral property, he cannot also raise an<\/p>\n
      issue relating to the limitation of the plaintiff’s<\/p>\n
      claim.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
             31.   In the decision reported in Annasaheb<\/p>\n
Bapusaheb Patil v. Balwant ((1995) 2 SCC 543), it was<\/p>\n
held as follows:\n<\/p><\/blockquote>\n
             “Adverse  possession    means    a   hostile<\/p>\n
      assertion i.e. a possession which is expressly or<\/p>\n
      impliedly    in denial of title of the true owner.<\/p>\n
      Under Article 65, burden is on the defendants to<\/p>\n
      prove affirmatively. A person who bases his title<\/p>\n
      on adverse possession must show by clear and<\/p>\n
      unequivocal evidence i.e. possession was hostile<\/p>\n
      to the real owner and amounted to a denial of his<\/p>\n
      title to the property claimed. In deciding whether<\/p>\n
      the acts, alleged by a person, constitute adverse<\/p>\n
      possession, regard must be had to the animus of<\/p>\n
      the person doing those acts which must be<\/p>\n
      ascertained from the facts and circumstances of<\/p>\n
      each case.     The person who bases his title on<\/p>\n
      adverse possession, therefore, must show by clear<\/p>\n
      and unequivocal evidence i.e. possession was<\/p>\n
S.A. 136\/1994.                    35<\/span><\/p>\n
      hostile to the real owner and amounted to a denial<\/p>\n
      of his title to the property claimed.\n<\/p><\/blockquote>\n
             The defendant, therefore, must plead and<\/p>\n
      prove that after the re-grant, he asserted his own<\/p>\n
      exclusive right, title and interest to the plaint<\/p>\n
      schedule property to the knowledge of the plaintiff<\/p>\n
      and the latter acquiesced to such a hostile<\/p>\n
      exercise of the right and allowed the defendant to<\/p>\n
      remain in continuous possession and enjoyment of<\/p>\n
      the property in assertion of that hostile title during<\/p>\n
      the entire statutory period of 12 years without any<\/p>\n
      let and hindrance and the plaintiff merely stood<\/p>\n
      thereby.”\n<\/p><\/blockquote>\n
             32. In the decision reported in Karbalai Begum<\/p>\n
v. Mohammed Sayeed (AIR<\/a> 1981 SC 77) it was held as<\/p>\n
follows:\n<\/p><\/blockquote>\n
             “It is well settled that mere non-participation<\/p>\n
      in the rent and profits of the land of a co-sharer<\/p>\n
      does not amount to an ouster so as to give title by<\/p>\n
      adverse possession to the other co-sharer in<\/p>\n
      possession. Indeed even if this fact is admitted,<\/p>\n
      then the legal position would be that the co-<\/p>\n
      sharers in possession would become constructive<\/p>\n
      trustees on behalf of the co-sharer who is not in<\/p>\n
S.A. 136\/1994.                  36<\/span><\/p>\n
      possession and the right of such co-sharer would<\/p>\n
      be deemed to be protected by the trustees.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
             33. Now one may refer to the decisions cited by<\/p>\n
the learned counsel for the respondents.       In the decision<\/p>\n
reported in Chand Bibi v. Lal Mohamed (1918 Vol.48 I.C.<\/p>\n<\/blockquote>\n
692), it was held as follows:\n<\/p>\n
                 “That the possession of the brother was<\/p>\n
      adverse to the plaintiff, even though it was not<\/p>\n
      shown that there was any demand made by the<\/p>\n
      plaintiff which was refused by the brother.”<\/p>\n<\/blockquote>\n
             34. In the decision reported in Siteswar Roy v.<\/p>\n
Tepua Barman (AIR 1926 Calcutta 589) the facts showed<\/p>\n
that for 30 years the other co-sharers did not assert any<\/p>\n
manner of right over the suit property. In that context it was<\/p>\n
held as follows:\n<\/p>\n
                 “That they cannot be allowed to contend<\/p>\n
      that the co sharers-defendants were in possession<\/p>\n
      on behalf of the plaintiffs.”\n<\/p><\/blockquote>\n
             35. In the decision reported in Ibramsa v. Sk.<\/p>\n
Meerasa (AIR 1972 Madras 467) a distinction was drawn<\/p>\n
S.A. 136\/1994.                 37<\/span><\/p>\n
between adverse possession as between strangers and co-<\/p>\n
owners. In that decision it was held as follows:<\/p>\n
                “There is a distinction between adverse<\/p>\n
      possession as between strangers and ouster and<\/p>\n
      exclusion of co-owners.    In the case of adverse<\/p>\n
      possession as against strangers, it is sufficient<\/p>\n
      that adverse possession is overt and without any<\/p>\n
      attempt at concealment. It is not necessary that<\/p>\n
      adverse possession should be brought home to<\/p>\n
      the knowledge of the owner. When the adverse<\/p>\n
      possession is open, visible and notorious, if the<\/p>\n
      owner remains ignorant and indifferent he cannot<\/p>\n
      complain. In the case of ouster of a co-owner the<\/p>\n
      position is different.   To constitute ouster law<\/p>\n
      requires   something     than    mere    exclusive<\/p>\n
      possession and exclusive receipt of income.<\/p>\n
      There must also be an ouster a hostile, open<\/p>\n
      denial and an open repudiation of that co-owner;s<\/p>\n
      right to the latter’s knowledge. But this does not<\/p>\n
      mean that the co-owner who has been ousted our<\/p>\n
      excluded should be expressly informed as such by<\/p>\n
      the other co-owner. If other circumstances concur<\/p>\n
      the courts can legitimately infer from exclusive<\/p>\n
      possession for a considerable length of time, that<\/p>\n
S.A. 136\/1994.                 38<\/span><\/p>\n
      the other co-owner has been excluded to his<\/p>\n
      knowledge. The theory of lost grant is applicable<\/p>\n
      to    support   long  continued    possession   for<\/p>\n
      considerable length of time. If the co-owner does<\/p>\n
      not assert his right for a considerable length of<\/p>\n
      time, the inactive co-owner must take the<\/p>\n
      consequences for long delay in bringing a suit to<\/p>\n
      establish his right, which delay has prejudiced the<\/p>\n
      other side and occasioned loss of evidence by<\/p>\n
      lapse of time.”\n<\/p><\/blockquote>\n
             36. In the decision reported in P. Lakshmi<\/p>\n
Reddy v. L. Lakshmi Reddy (AIR<\/a> 1957 SC 314) it was held<\/p>\n
as follows:\n<\/p><\/blockquote>\n
      “But it is well settled that in order to establish<\/p>\n
      adverse possession of one-co-heir as against<\/p>\n
      another it is not enough to show that one out of<\/p>\n
      them is in sole possession and enjoyment of the<\/p>\n
      profits, of the properties.    Ouster of the non-<\/p>\n
      possessing co-heir by the co-heir in possession<\/p>\n
      who claims his possession to be adverse, should<\/p>\n
      be made out.     The possession of one co-heir is<\/p>\n
      considered, in law, as possession of all the co-<\/p>\n
      heirs. When one co-heir is found to be in<\/p>\n
      possession of the properties, it is presumed to be<\/p>\n
S.A. 136\/1994.                 39<\/span><\/p>\n
      one the basis of joint title.       The co-heir in<\/p>\n
      possession cannot render his possession adverse<\/p>\n
      to the other co-heir, not in possession, merely by<\/p>\n
      any secret hostile animus on his own part in<\/p>\n
      derogation of the other co-heirs title.      It is a<\/p>\n
      settled rule of law that as between co-heirs thee<\/p>\n
      must be evidence of open assertion of hostile title,<\/p>\n
      coupled with exclusive possession and enjoyment<\/p>\n
      by one of them to the knowledge of the other so<\/p>\n
      as to constitute ouster.\n<\/p><\/blockquote>\n
                 The burden of making out ouster is on<\/p>\n
      the person claiming to displace the lawful title of a<\/p>\n
      co-heir by his adverse possession.\n<\/p><\/blockquote>\n
                 A Receiver is an officer of Court and is<\/p>\n
      not a particular agent of any party to the suit,<\/p>\n
      notwithstanding that in law his possession is<\/p>\n
      ultimately treated as possession of the successful<\/p>\n
      party on the termination of the suit. To treat such<\/p>\n
      Receiver as plaintiff’s agent for the purpose of<\/p>\n
      initiating adverse possession by the plaintiff would<\/p>\n
      be to impute wrong doing totheCourt and its<\/p>\n
      officers.  The doctrine of Receiver’s possession<\/p>\n
      being that of the successful party cannot be<\/p>\n
      pushed to the extent of enabling a person who<\/p>\n
      was initially out of possession to claim the tacking<\/p>\n
S.A. 136\/1994.                  40<\/span><\/p>\n
      on of Receiver’s possession to his subsequent<\/p>\n
      adverse possession.”\n<\/p><\/blockquote>\n
             37.  In the decision in Kunhamina Umma v.<\/p>\n<\/blockquote>\n
Special Tahsildar (AIR 1977 Kerala 41) it was held as<\/p>\n
follows:\n<\/p><\/blockquote>\n
             “The principle that the sole possession and<\/p>\n
      enjoyment of the profits of the property will not<\/p>\n
      constitute ouster as regards the other co-owners<\/p>\n
      can hardly apply where possession has continued<\/p>\n
      for a considerable period of time exclusively with<\/p>\n
      one co-owner and prima facie to the exclusion of<\/p>\n
      other or others.\n<\/p><\/blockquote>\n
             If the one co-owner takes possession and<\/p>\n
      continues in possession for a long time enjoying<\/p>\n
      the income of the property without sharing it with<\/p>\n
      other co-owner it is a strong circumstance<\/p>\n
      indicative of, or from which an inference can be<\/p>\n
      drawn, that there was ouster of the co-owners not<\/p>\n
      in possession; and if other circumstances also<\/p>\n
      exist in support of this, courts will be justified in<\/p>\n
      inferring ouster or exclusion.”<\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
             38. It is unnecessary to refer to all the decisions<\/p>\n
cited by the learned counsel for the respondents.<\/p><\/blockquote>\n
S.A. 136\/1994.                41<\/span><\/p>\n
             39. The principle is very clear.  Normally, the<\/p>\n
courts are very shy to accept the claim of adverse<\/p>\n
possession by one co-owner against another co-owner. A<\/p>\n
high degree of proof is required regarding ouster of other co-<\/p>\n
owners.       Merely because there is no participation of<\/p>\n
management or the sharing of income by itself are not<\/p>\n
sufficient to constitute ouster. There must be evidence of<\/p>\n
clear indication on the part of the co-owner in possession<\/p>\n
asserting his title and holding the property adverse to the<\/p>\n
interest of the other    co-owners and the other co-owners<\/p>\n
remain passive.\n<\/p>\n
             40. Keeping the above principles in mind, an<\/p>\n
attempt shall now be made to see whether the plea of<\/p>\n
adverse possession and limitation in the case on hand is<\/p>\n
established.\n<\/p>\n
             41. Ext. A1 is the document by which the first<\/p>\n
plaintiff obtained the jenm right over the property. Relevant<\/p>\n
recital reads as follows:\n<\/p>\n
S.A. 136\/1994.                  42<\/span><\/p>\n
             “……..\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                                        ……..”<\/p><\/blockquote>\n
             42.      According to learned counsel for the<\/p>\n
appellant, the word    (in succession) indicates<\/p>\n
that the acquisition made was for and on behalf of the co-<\/p>\n
owners. It is not possible to say so. The word<\/p>\n
only shows continuity of possession. That is clear from the<\/p>\n
subsequent words used in the recital. On a reading of the<\/p>\n
document as a whole it would be very evident          that the<\/p>\n
claim was that the property was outstanding with the first<\/p>\n
plaintiff and late Kadir Pillai. This clearly shows that after<\/p>\n
the death of Kunji Marakkar, the first plaintiff and late Kadir<\/p>\n
S.A. 136\/1994.                43<\/span><\/p>\n
Pillai had asserted their exclusive right, possession and<\/p>\n
enjoyment over the suit properties. Next is the suit by Abdul<\/p>\n
Rahiman regarding item No.2 to the plaint. There, late Kadir<\/p>\n
Pillai and defendants 1 and 2 in the present case were made<\/p>\n
as defendants. It is true that Kadir Pillai said in the written<\/p>\n
statement that possession regarding item No.2           was as<\/p>\n
agreed to by all the sharers. But then one has to notice the<\/p>\n
suit filed by Muhammed, the son of Kunju Marakkar through<\/p>\n
his second wife, which was a suit for partition. It is here that<\/p>\n
Exts.B2 and B3 assumes significance. They are the written<\/p>\n
statements of the first plaintiff and late Kadir Pillai. In the<\/p>\n
said suit all the legal heirs of Kunju Marakkar were on the<\/p>\n
party array, but except defendants 1 and 2, others chose to<\/p>\n
remain ex-parte. In that suit, the written statement filed by<\/p>\n
Kadir Pillai and the first plaintiff in no uncertain terms<\/p>\n
declared that they were in possession of the property<\/p>\n
involved in the suit to the exclusion of all others. This is<\/p>\n
followed by the mutual release of rights by late Kadir Pillai<\/p>\n
and the first plaintiff.\n<\/p>\n
S.A. 136\/1994.                  44<\/span><\/p>\n
             43. One may now have a perusal of the release<\/p>\n
obtained by the first plaintiff. He now asserts that all the<\/p>\n
legal heirs of Kunju Marakkar entitled to the suit properties.<\/p>\n
In respect of 69 = cents he was clever enough to get release<\/p>\n
deed executed by late Kadir Pillai and then stealthily<\/p>\n
obtained release deeds from other co-sharers. Exts.A5, A6,<\/p>\n
A7, and A8 are termed as Ozhimuri (release deeds).           A<\/p>\n
reading of those documents will show that there was no<\/p>\n
particular assertion of rights by those assignors and they<\/p>\n
only say that their nominal interest over the properties were<\/p>\n
being released in favour of the first plaintiff. If as a matter<\/p>\n
of fact those co-sharers were asserting their rights, the word<\/p>\n
‘nominal’ would not have been used. If they know that they<\/p>\n
had definite rights over the suit property and if they were<\/p>\n
asserting their rights, they would have taken care       in so<\/p>\n
many words the actual share and right that were being<\/p>\n
released.\n<\/p>\n
             44. It is true that in Ext.A5 document, the first<\/p>\n
plaintiff was clever enough to mention Kunju Marakkar’s<\/p>\n
S.A. 136\/1994.                  45<\/span><\/p>\n
  (legal heirs of Kunju Marakkar). That too was<\/p>\n
certainly with the oblique motive.         There is absolutely<\/p>\n
nothing on record to show that any of the legal heirs of<\/p>\n
Kunju Marakkar except the first plaintiff had ever asserted<\/p>\n
any rights over the suit properties. It is also significant to<\/p>\n
note that none of them have come forward to give evidence<\/p>\n
in the case. The first plaintiff was careful enough to include<\/p>\n
the recital in the document executed between him and Kadir<\/p>\n
Pillai that after the death of Kunju Marakkar they held the<\/p>\n
properties to the exclusion of all other co-owners and after<\/p>\n
doing so, he then obtained release deed from other co-<\/p>\n
sharers.\n<\/p>\n
             45. There is nothing to show that after the release<\/p>\n
deed in his favour, any of the co-sharers had ever asserted<\/p>\n
any right over the portion of the property held by Kadir<\/p>\n
Pillai. As per Ext.B1, late Kadir Pillai transferred 49 cents to<\/p>\n
his wife.     They put up a building therein and have been<\/p>\n
residing in the property for the last 25 years. There can be<\/p>\n
S.A. 136\/1994.                  46<\/span><\/p>\n
no doubt that Kadir Pillai was asserting rights in derogation<\/p>\n
or the rights of the other co-owners.\n<\/p>\n
             46. As rightly pointed out by the learned counsel<\/p>\n
appearing for the respondents Sri. Jayasurya it is not<\/p>\n
necessary to resort to belligerent acts against other co-<\/p>\n
owners to assert hostile possession.         If one co-owner<\/p>\n
exclusively possesses the properties and enjoys it for many<\/p>\n
years, and there is no evidence of sharing of profits or<\/p>\n
income and there is no conduct from the other side of any<\/p>\n
indication or assertion of their rights, the necessary animus<\/p>\n
can be presumed and the possession becomes adverse.<\/p>\n
This principle is followed in some of the decisions cited by<\/p>\n
the learned counsel for the respondents. It is true that the<\/p>\n
burden is on the person who asserts adverse possession and<\/p>\n
limitation. More so, in the case of a co-owner. But the facts<\/p>\n
revealed in this case would show that right from the day of<\/p>\n
execution of Ext. A1, that is 28.6.1957, at any rate from the<\/p>\n
day on which late Kadir Pillai and the first plaintiff filed<\/p>\n
written statements in O.S. 513 of 1964 they had declared<\/p>\n
S.A. 136\/1994.                  47<\/span><\/p>\n
that the suit properties exclusively belonged to them. It is<\/p>\n
evident that the attempt on the part of the first plaintiff is to<\/p>\n
divest defendants 7 to 13 of the properties that late Kadir<\/p>\n
Pillai possessed and enjoyed. It is significant to notice that<\/p>\n
Kadir Pillai died in 1980 and the suit is filed in 1981. One<\/p>\n
cannot forget to notice that Kunju Marakkar died in 1949 and<\/p>\n
the suit had been brought 32 years thereafter. One may<\/p>\n
notice that all the other co-sharers except the first plaintiff<\/p>\n
and late Kadir Pillai had not asserted any manner of right<\/p>\n
over the suit properties. It is very clear that the first plaintiff<\/p>\n
was waiting for Kadir Pillai to leave the world to institute the<\/p>\n
suit. It is unfortunate that the first plaintiff’s attempt is to<\/p>\n
deprive the widow and children of Kadir Pillai of their<\/p>\n
properties. This is fortified by the fact that none of the legal<\/p>\n
heirs of Kunju Marakkar had ever shown any interest in the<\/p>\n
suit properties or at any point of time shared the income<\/p>\n
from the properties. There is also nothing to show that they<\/p>\n
had asserted any manner of right over the suit properties.<\/p>\n
In the suit also, at the risk of repetition, they have not come<\/p>\n
S.A. 136\/1994.                   48<\/span><\/p>\n
forward to give evidence. In the suit, the first plaintiff who<\/p>\n
had already acquired 69 = cents is now trying to deprive the<\/p>\n
legal heirs of Kadir Pillai of the properties, which legitimately<\/p>\n
belong to them.\n<\/p>\n
             47. Further, the conduct of the first plaintiff and<\/p>\n
the other plaintiffs are such that they had at no point of time<\/p>\n
asserted any manner of right over the suit properties.<\/p>\n
Passive conduct on the part of the other legal heirs, if Kadir<\/p>\n
Pillai treated the properties as his own, it cannot be found<\/p>\n
fault with. The silence on the part of the other co-sharers<\/p>\n
constituted a position which made Kadir Pillai to believe that<\/p>\n
they are not asserting any manner of right over the suit<\/p>\n
properties. Kadir Pillai and his legal heirs are entitled to<\/p>\n
treat the silence or inaction on the part of other co-sharers<\/p>\n
leading to the belief that they were claiming no right over<\/p>\n
the suit properties. Where a person having title, right or<\/p>\n
claim to the properties perceives that another person is<\/p>\n
innocently and in ignorance, conducting himself with<\/p>\n
reference to the property in a manner inconsistent with such<\/p>\n
S.A. 136\/1994.                    49<\/span><\/p>\n
title, right or claim, it is the duty of the former to undeceive<\/p>\n
the other party forthwith; if he omits to do so, and if all the<\/p>\n
other conditions of a valid estoppel are satisfied, he is<\/p>\n
precluded from exercising or asserting his right or title or<\/p>\n
claim as against such other party on any subsequent<\/p>\n
occasion.\n<\/p>\n
             48. It is after 32 long years that the suit has been<\/p>\n
brought.      From 1949 onwards it appears that the first<\/p>\n
plaintiff and late Kadir Pillai alone were enjoying the<\/p>\n
properties and there is nothing to indicate that there is any<\/p>\n
sharing of income or profits from the properties. All this<\/p>\n
while the other legal heirs stood by and watched. Merely<\/p>\n
because unlike in the case of first plaintiff, late Kadir Pillai<\/p>\n
did not take release deeds from other shares does not mean<\/p>\n
that the other co-sharers had any manner of rights over the<\/p>\n
properties. The entire evidence will have to be appreciated<\/p>\n
keeping in mind the circumstances and the conduct of the<\/p>\n
parties. Equitable principle may have to be applied. If strict<\/p>\n
letter of law leads to gross injustice, the courts standing<\/p>\n
S.A. 136\/1994.                 50<\/span><\/p>\n
within the frontiers of law are competent to mould the reliefs<\/p>\n
so as to redress the grievances of the         really aggrieved<\/p>\n
person. Viewed from this angle, the findings of the lower<\/p>\n
appellate courts are fully justified. The lower appellate court<\/p>\n
was correct in holding that the properties belonged to late<\/p>\n
Kadir Pillai exclusively.   The result is that this appeal is<\/p>\n
without merits and it is liable to be dismissed. I do so.<\/p>\n
However, there will be no order as to costs.<\/p>\n
                                            P. BHAVADASAN,
\n                                                JUDGE
\nsb.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Veerankutty vs Nabeeesa on 9 July, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 136 of 1994(G) 1. VEERANKUTTY … Petitioner Vs 1. NABEEESA … Respondent For Petitioner :SRI.K.V.JAYACHANDRAN For Respondent :SRI.K.K.JAYASOORIAN The Hon’ble MR. Justice P.BHAVADASAN Dated :09\/07\/2010 O R D E R P. BHAVADASAN, J. – – – […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-118324","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nVeerankutty vs Nabeeesa on 9 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/veerankutty-vs-nabeeesa-on-9-july-2010-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Veerankutty vs Nabeeesa on 9 July, 2010 - 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