This appeal challenges partition decrees awarding shares to plaintiffs. The appellant claimed exclusive title via 1940 oral lease, which the trial court found unsupported. The High Court affirmed lower courts' findings denying exclusive possession.
Regular Second Appeal dismissed; partible decree stands confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 10TH DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943
RSA NO. 942 OF 2005
AGAINST THE DECREE AND JUDGMENT DATED 08.12.2004 IN AS 74/2000 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, THALASSERY
AGAINST THE DECREE AND JUDGMENT DATED 30.10.1999 IN OS 9/1996 OF THE SUB COURT, THALASSERY
APPELLANT/APPELLANT/DEFENDANT NO.1:
EDAKKENNEMBATH POOKANDY GOPALAN S/O. NARAYANI, RESIDING AT KOODALI AMSOM, MUTTANNUR DESOM, KOLOLAM, P.O. EDAYANNUR,, THALASSERY TALUK. BY ADVS. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K.
RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 TO 9:
2 EDAKKANEMBATH POOKANDY MADHAVI D/O. KALLIANI, KOODALI AMSOM, MATTANNUR DESOM,, THALASSERY TALUK, KANNUR DISTRICT.
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| D/O. MADHAVI, | -DO-. | |
|---|---|---|
| 7 | EDAKKANEMBATH S/O. MADHAVI, |
POOKANDY MANOJAN -DO-. |
| 8 | EDAKKANEMBATH D/O. MADHAVI, |
POOKANDY ANITHA -DO-. |
| 9 | EDAKKANEMBATH D/O. ROHINI, - |
POOKANDY ROAJA DO-. |
| 10 | EDAKKANEMBATH S/O. ROHINI, - |
POOKANDY SAJEEVAN DO-. |
| 11 | EDAKKANEMBATH S/O. ROHINI, - |
POOKANDY RAJEEVAN DO-. |
| 12 | EDAKKANEMBATH S/O. JANAKI, - |
POOKANDY MANOHARAN DO-. |
| 13 | EDAKKANEMBATH D/O. KALLIANI, MATTANNUR DESO THALASSERY TAL |
POOKANDY NARAYANI KOODALI AMSOM, M,, KOLOLAM, P.O. EDAYANNUR, UK,, KANNUR DISTRICT. |
| 14 | EDAKKANEMBATH D/O. NARAYANI, |
POOKANDY SAROJINI -DO-. |
| 15 | EDAKKANEMBATH D/O. NARAYANI, |
POOKANDY SHOBA -DO-. |
| 16 | EDAKKANEMBATH D/O. NARAYANI, |
POOKANDY SUSHALA -DO-. |
| 17 | EDAKKANEMBATH D/O. NARAYANI, |
POOKANDY USHA -DO-. |
| 18 | PANNIYADAN NAR EDAKKAD AMSOM, KANNUR DISTRIC |
ATH NARAYANAN, S/O. AMBU DESOM, TELLICHERRY TALUK, T. |
| 19 | KOOLOTH VALAPP | IL ABDURAHIMAN |
| S/O. KUNHALI, | KANJIRODE AMSOM PERAVOOR DESOM, | |
| P.O. KOODALI, | KANNUR TALUK, KANNUR DISTRICT. |
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20 EDAKKANEMBATH POOKANDY NARAYANI D/O. KALLIANI, KOLOLOM, KOODALI AMSOM, MATTANNUR DESOM, P.O. EDAYANNUR, THALASSERY TALUK,, KANNUR DISTRICT. *ADDL.R21 NISHAYI M.P AGED 38, D/O. MOHMOD A.B, KAKKADAVATH AVENUE, THAYATHERU, KANNUR CIVIL STATION P.O, KANNUR – 670002. *ADDL.R22 VEENA N.T AGED 31 YEARS D/O. JAYARAJAN N.T, RESIDING AT NAYAN THAR ROAD, ELAYAVOOR P.O, MUNDAYAD, KANNUR - 670597. *(SUPPLY. RESPONDENTS 21 AND 22 ARE IMPLEADED AS PER ORDER DATED 8.2.2021 IN IA 340/2015) **ADDL. SREE EDAKALMBETH BHAGAVATHI KSHETHRAKARAYA R23 NIRVAHANA SASMITHI P.O., KANIRODE, PURAVOOR, KUDUKIMOTTA, KANNUR DISTRICT – 670592, REPRESENTED BY ITS SECRETARY, EDAKALAMBETH NARAYANAN, S/O KUNHAPPA, AGED 65 YEARS, EDAKALAMBETH HOUSE, P.O. EACHUR, KANNUR – 670591 **SUPLEMENTAL RESPONDENT R23 IS IMPLEADED AS PER ORDER DATED 01.10.2021 IN IA NO.1/2021 BY ADVS. SRI.U.P.BALAKRISHNAN FOR ADDL.R23 SRI.K.R.AVINASH KUNNATH FOR ADDL.R21, R22 SRI.ABDUL RAOOF PALLIPATH FOR ADDL.R21, R22 SRI.E.MOHAMMED SHAFI FOR ADDL.R21, R22 SRI.M.K.SUMOD FOR R19 B/O SRI.GRACIOUS KURIAKOSE FOR R1,
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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K.BABU, J.
R.S.A. No.942 of 2005
Dated this the 10th day of November, 2021
JUDGMENT
This Regular Second Appeal arises from the judgment and decree dated 30.10.1999 in O.S.No.9/1996 passed by the Subordinate Judge's Court, Thalassery. The original suit was instituted for partition of the plaint schedule property. The Trial Court decreed the suit in favour of the plaintiffs. Defendant No.1 challenged the judgment of the Trial Court in A.S.No.74/2000. The First Appellate Court confirmed the judgment and decree passed by the Trial court. Defendant No.1 is before this Court in Second Appeal.
66 cents comprised in Re-Sy.No.4/3 originally belonged to the Thavazhi of the direct sisters of Edakkanembath Matha and Thala.
Matha had one son who predeceased her. Thereafter, the entire plaint schedule property vested in the Thavazhi constituting Thala
and her descendants. Thala had 3 daughters namely, Vachi,
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Paithal and Kallyani. Kallyani had five children, of which, one was Narayani, defendant No.2. Defendant No.1 is the son of the said Narayani and defendant Nos. 3 to 6 are her other children. Vachi died issueless. After the death of Paithal and Kallyani, the properties were in the joint possession of the children of Paithal and Kallyani, including plaintiffs 2 to 12 and defendants 1 to 6. Defendant No.1 had purchased the rights of the children of Paithal in the year 1994. The plaintiffs 2 to 12 assigned their rights in the property in favour of plaintiff No.1 in the year 1995. At present, plaintiff No.1 and defendant Nos.1 to 6 are in joint possession of the plaint schedule property. Defendants No.1 had assigned a portion of the property to defendant Nos. 7 and 8. Plaintiff No.1, being the assignee of plaintiffs 2 to 12, is entitled to 11/24 shares in the property.
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schedule property. Defendant No.1 assigned 10 cents of property in favour of defendant No.8 and 60 cents of property in favour of defendant No.7. The remaining property is in the exclusive possession of defendant No.1. The plaintiffs have no right over the plaint schedule property. Even if it is found that, the plaintiffs have acquired any right over the plaint schedule property, they lost it by way of ouster and limitation. Plaintiffs are not in joint possession of the property.
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shares to plaintiff No.1. The Trial Court also held that plaintiff No.1 is entitled to share of profits from defendant No.1. The Trial Court further held that the properties purchased by defendant Nos. 7 and 8 will be set apart from the share of defendant No.1 in the final decree proceedings.
(i) Did the courts below misconstrue the evidence while recording the finding that defendant No.1 has no exclusive title and possession over the plaint schedule property.
the appellant and Sri.M.K.Sumod, the learned counsel for the respondents.
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is specific admission from the side of defendant No.1, while examined as DW1, that there was no evidence available to prove that Paithal had obtained the oral lease of the property from Matha in the year 1940. After examining the recitals in Ext.B1 the Trial Court rightly observed that the fact that Paithal had obtained oral lease of the property from Matha in the year 1940 is conspicuously absent in Ext.B1 assignment deed. Defendant No.1 admitted that he had no knowledge regarding the oral lease. No witnesses were examined to prove the alleged oral lease. Considering all these aspects, the Trial Court held that defendant No.1 failed to prove that Paithal had obtained property as per lease from deceased Matha in the year 1940. Hence, the plea of defendant No.1 that the property exclusively belonged to Paithal and thereafter her children and he purchased the entire property as per Ext.B1 cannot be accepted.
Prem Prakash & Ors [(1995) 4 SCC 496] , the Apex Court enumerated three elements necessary for establishing the plea of
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ouster in the case of co-owner. They are (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. The appellant/defendant No.1 failed to establish the requirements for establishing the plea of ouster. The Trial Court rightly held that the children of Paithal failed to establish right over the property by way of ouster and limitation.
Hence, the Regular Second Appeal is dismissed.
K.BABU JUDGE
VPK
2 issues framed by the court
Whether the courts below misconstrued evidence in finding that appellant failed to establish exclusive title and possession over scheduled property.
Whether the claims of ouster and adverse possession were successfully established to deny co-owners' rights.
Colour shows how this judgement treated each authority
Vidya Devi @ Vidya Vati (Dead) By LRs v. Prem Prakash & OrsExplained¶64
Vidya Devi @ Vidya Vati (Dead) By LRs v. Prem Prakash & Ors [(1995) 4 SCC 496] · Who else cites this
EDAKKENNEMBATH POOKANDY GOPALAN
MANHOTH KUNHAPPA
EDAKKANEMBATH POOKANDY MADHAVI
EDAKKANEMBATH POOKANDY DEVI
EDAKKANEMBATH POOKANDY ROHINI
EDAKKANEMBATH POOKANDY JANAKI
K. BABU
As recorded by the court registry
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