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BHANUMATHI KUMAR, D/O.KARUNAKARAN versus MOOLIYIL VAZHAYIL VIJAYAN

High Court of Kerala

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BHANUMATHI KUMAR, D/O.KARUNAKARAN v. MOOLIYIL VAZHAYIL VIJAYAN - RSA No. 873 of 2006 [2007] RD-KL 12443 (9 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 873 of 2006()

1. BHANUMATHI KUMAR, D/O.KARUNAKARAN,
... Petitioner

2. M.V.ANIL KUMAR, S/O.KARUNAKARAN,

3. M.V.RAJAN, S/O.KARUNAKARAN,

4. M.V.MANIYAN, S/O.KARUNAKARAN,

5. M.V.VISWAKUMAR, S/O.KARUNAKARAN,

6. M.V.SUNIL KUMAR, S/O.KARUNAKARAN,

Vs

1. MOOLIYIL VAZHAYIL VIJAYAN,
... Respondent

2. GEETHA DEVADAS, D/O.VASUDEVAN,

3. A.P.SREEKUMAR, S/O.VASUDEVAN,

4. A.P.HARIKUMAR, S/O.VASUDEVAN,

5. SAIRA RAGHAVAN, G/D VASUDEVAN,

6. SAIROOP RAGHAVAN, S/O.VASUDEVAN,

7. SAISH RAGHAVAN, G/S. OF VASUDEVAN,

8. P.K.SACHEENDRAN, S/O.PADMANABHAN,

9. PUSHPA NATARAJ, D/O.PADMANABHAN,

10. P.K.SURESH, S/O.PADMANABHAN,AGED 50,

11. CHITHRA RAMACHANDRAN, S/O.PADMANABHAN,

12. PREMNATH.P.K., S/O.PADMANABHAN,

13. REETHA ARUN KUMAR, D/O.PADMANABHAN,

14. PREMALATHA RAMAKRISHNAN, D/O.SUMITHRA,

15. SHYMA PREMKUMAR, D/O.SUMITHRA,

16. M.V.LAXMANAN, S/O.NARAYANI,

17. M.V.RAMACHANDRAN, S/O.NARAYANI,

18. M.V.BHASKARAN, S/O.NARAYANI,

19. M.V.GOPALAKRISHNAN, S/O.KARUNAKARAN,

20. M.V.NANDINI VALSAN,

21. M.V.SANKARAN, S/O.LAXMI,

22. JEMUNA VASUDEVAN, D/O.LAXMI VASUDEVAN,

23. PRABHA VIJAYARAGHAVAN, D/O.LAXMI

24. M.V.JANAKI, D/O.DEVAKI, AGED 77,

25. BHAGYALAKSHMI, D/O.JANAKI,

26. M.V.PUSHPA, D/O.JANAKI, AGED 48,

27. M.V.MEERA, D/O.JANAKI,

28. VASANTHA.C.V., D/O.NARAYANI,

29. C.RAJAGOPALAN, S/O.NARAYANI,

30. C.MAHITHA, D/O.NARAYANI, AGED 55,

31. C.MOHANAN, S/O.NARAYANI, AGED 50,

32. C.RADHAKRISHNAN, S/O.NARAYANI,

33. VIJAYAN C., S/O.NARAYANI, AGED 45,

34. K.P.SADANANDA RAJ, S/O.REVATHI,

35. K.P.SARADA KUMAR, S/O.REVATHI,

36. K.P.SAVITHRI, D/O.REVATHI,

37. K.P.SAROJA NARAYAN, D/O.REVATHI,

38. K.P.SURESH RAJ, S/O.REVATHI,

39. P.PRABHA, D/O.RAGHAVAN, AGED 45,

40. P.PREETHI, D/O.RAGHAVAN,

41. P.V.REMA, D/O.SOUDAMINI, AGED 50,

42. P.V.SASI, S/O.SOUDAMINI, AGED 50,

43. P.V.CHANDRAN, S/O.SOUDAMINI,

44. P.V.MANOHARAN, S/O.SOUDAMINI,

45. PADMAVATHI.P.V., D/O.AMMALU,

46. P.V.SUGADHA, D/O.PADMAVATHI,

47. P.V.RAVINDRAN, S/O.AMMALU,

48. SARADA CHANDRAN, D/O.KALLYANI,

49. SARATH CHANDRAN, S/O.SARADA CHANDRAN,

50. DINESH CHANDRAN, S/O.SARADA CHANDRAN,

51. SUPRIYA PREMKUMAR, D/O.PREMKUMAR,

52. SAYISHA PREMKUMAR, D/O.PREMKUMAR,

53. DIVYA PREMKUMAR, D/O.PREMKUMAR,

54. THASSANNEE GOPINATH,

55. THASWAR GOPINATH, D/O.GOPINATH,

56. K.P.SUREKHA, D/O.SAROJA NARAYANAN,

57. K.P.SUDEEP, D/O.SAROJA NARAYANAN,

58. K.P.SUCHITHRA, D/O.SAROJA NARAYANAN,

59. DR.BINA RAVINDRAN, D/O.NALINI

60. DINESH RAVINDRAN, S/O.NALINI,

61. K.P.ASHA KUMARI, D/O.SAVITHRI,

62. HEMALATHA, D/O.SAVITHRI,

63. HEMACHANDRAN, S/O.SAVITHRI,

64. HEMANTH KUMAR, S/O.SAVITHRI,

65. SREELATHA, D/O.SAVITHRI,

66. M.K.PREMKUMAR, S/O.SARADA KUMAR,

67. M.K.PRASANNAKUMARI, D/O.SARADA KUMAR,

68. M.K.PRAMILA KUMARI,

69. M.P.PREETHI KUMARI, D/O.SARADA KUMAR,

70. M.K.PRADEEP KUMAR, S/O.SARADA KUMAR,

71. N.SHANMUGHA SUNDARAN,

72. N.RAMESH, S/O.NACHI MURTHI,

73. SREEJA.P., W/O.SREELESH, AGED 24,

74. CHANDRA MOHAN.N.V., S/O.VASUDEVAN,

75. PRADEEP, S/O.NANDINI,

76. DILEEP, S/O.NANDINI, AGED 38,

77. ANIL KUMAR, S/O.PREMALATHA,

78. REKHA, D/O.PREMALATHA, AGED 42,

79. SAILESH, S/O.PREMALATHA,

80. SAIREENA, D/O.PREMALATHA,

81. BALASUBRAMANIYAN, S/O.VASANTHA,

82. HEMACHANDRY, D/O. VASANTHA,

83. MAMATHA CHANDRY, D/O.HEMACHANDRY,

84. SHANKAR VISWANATHAN, S/O.VASANTHA,

85. MURUGESH, S/O.VASANTHA,

86. GAYATHRI, D/O.PRASANNA KUMARI,

87. GEETHA,, D/O.PRASANNAKUMARI,

88. GOPI, S/O.PRASANNA KUMAR, AGED 23,DO.

89. BINDHU, D/O.PREMILA KUMARI,

90. PRAMOD, S/O.PREETHI KUMARI,

91. SEENA CHANDRAN, D/O.BHAGYALAKSHMI,

92. HEMANTH KUMAR, S/O.BHAGYALAKSHMI,

93. SUDHEEP NARAYANAN, S/O.PUSHPA,

For Petitioner :SRI.V.RAJAGOPAL

For Respondent : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :09/07/2007

O R D E R

M.SASIDHARAN NAMBIAR, J.

........................................... R.S.A.No. 873 OF 2006 ............................................

DATED THIS THE 9th DAY OF JULY, 2007



JUDGMENT

Defendants 20, 21 and 23 to 26 in O.S.511 of 1995 on the file of Munsiff Court, Kannur are the appellants. First respondent is the plaintiff and other respondents, the other defendants. First respondent instituted the suit seeking a decree for partition of plaint schedule property into 45 and allotment of one such share to him with share of profits. Plaint schedule property was obtained by Kottiyath Vazhayil Achuthan and his sister Devaki under Ext.A1 sale certificate in court auction sale in O.S.538 of 1931. They were the decree holders auction purchasers. Kottiyath Vazhayil Achuthan was described as the Karanavan of the Tavazhy in Ext.A1 and plaint schedule property is a Tavazhy property and was managed by subsequent Karanavan Kunhiraman and on the death of Kunhiraman the property devolved on plaintiff and defendants who are the only members of the Tarwad and each of them is entitled to a share and therefore the properties are to be divided and their share to be separated. Appellants filed a written statement contending that the property was not obtained by the Tarwad but by RSA 873/2006 2 Gopalan and Devaki and it is their separate property and therefore as members of the Tarwad, plaintiff is not entitled to claim any share.

2. Learned Munsiff framed the necessary issues. Exts.A1 to A5 and Ext.B1 to B1(a) were marked and PW1 was examined. Learned Munsiff on the evidence, found that, plaint property originally belonged to the Tarwad as it was purchased by Achuthan, the then Karanavan along with his sister Devaki as proved by Ext.A1 and they were the decree holders in O.S.457 of 1957 and Achuthan was shown as the Tavazhy Karanavan. Relying on Ext.A4 judgment in O.s.457 of 1957, it was found that derivation of title in Ext.A4 prove that plaint schedule property belonged to the Thavazhy. It was also found that fact that Gopalan died before 1931 before the commencement of Madras Marumakathayam Act was not disputed. Learned Munsiff held that when the legal position was brought to the notice of the plaintiff and defendants, it was conceded and it was submitted that they have no objection to pass a preliminary decree in respect of half right which devolved on the Tavazhy on the death of Gopalan and the remaining half right belonged to only Devaki and plaintiff did not have any claim over that right. Accepting RSA 873/2006 3 the position a preliminary decree for partition was passed.

3. Appellants challenged the decree and judgment before Sub Court, Thalassery in A.S.91 of 2003. It was contended before the learned Sub Judge that no concession was made and therefore the preliminary decree passed by the trial court is not sustainable. Learned Sub Judge on reappreciation of facts and evidence found that though PW1 was examined in chief, he was not cross examined as the legal position was not disputed. It was found that Gopalan died prior to 1931, before commencement of the Madras Marumakkathayam Act and so only his half right devolved on the Thavazhi which is available for partition among the Tavazhy members. It was on that basis confirming the preliminary decree and judgment, appeal was dismissed. It is challenged in the second appeal.

4. Learned counsel appearing for the appellant argued that there is no independent finding by the courts below with regard to devolution of right except the concession made by the counsel. It was also argued that there is no finding on the claim of adverse possession raised by appellants and therefore the preliminary decree granted is not sustainable.

5. On hearing the learned counsel and going through the RSA 873/2006 4 judgments of the courts below I do not find any substantial question of law involved in the appeal. The fact that Gopalan died prior to 1931 was not disputed. The legal consequences of death of the then Karanavan which was prior to the commencement of the Madras Marumakkathayam Act as found by courts below was also not disputed. Judgments of the courts below establish that the legal position was admitted by parties and PW1 was not cross examined as it was admitted that on the death of Gopalan his half right devolved as Thavazhi, which is available to be divided between the members of Tavazhy as has been done by the courts below. Hence no substantial question of law is involved in the appeal on that aspect.

6. Though learned counsel argued that there is no finding on the question of adverse possession, it is not disputed that there was no plea of ouster. So long as plaintiff and defendants are co-owners, unless there is a plea of ouster, to the knowledge of the non possessing coowner, the plea of adverse possession will not stand. In law possession of one co-owner could only be for and on behalf of the other co-owners, unless there is an ouster to the knowledge of other coowners. As ouster was not pleaded, the plea of adverse possession is not sustainable. As RSA 873/2006 5 there is no substantial question of law involved in the appeal, it is dismissed in limine.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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