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THANKAVELU, S/O.LAT VERAPA MUDALIAR v. PARVATHY, D/O.LATE VEERAPPA MUDALIAR - RSA No. 204 of 2007  RD-KL 5153 (9 March 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMRSA No. 204 of 2007()
1. THANKAVELU, S/O.LAT VERAPA MUDALIAR,
1. PARVATHY, D/O.LATE VEERAPPA MUDALIAR,
2. GOVINDASWAMY,S/O.LATE VEERAPPA MUDALIAR,
3. RAJALAKSHMI,W/O.LATE THEMPAZHANI,
5. ARUMUGHAN, S/O. LATE THEMPAZHANI -DO-.
8. SASI, S/O. LATE SUBRAMANIAN, -DO-.
9. SUMATHI, D/O.LATE SUBRAMANIAN -DO-.
10. CHITRA, D/O.LATE SUBRAMANIAN, -DO-.
12. LAKSHMANAN, S/O. RAMAYYA,
13. MARUTHACHALAM, S/O. RAMAYYA, -DO- -DO-.
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR, J............................................ R.S.A.No. 204 OF 2007 ............................................
DATED THIS THE 9th DAY OF MARCH, 2007
Defendant No.7 in O.S.336 of 2000 on the file of Munsiff Court, Chittoor is the appellant. First respondent is the plaintiff and other defendants other respondents. First respondent filed the suit seeking a decree for partition and separation of her share. The property originally admittedly belonged to Veerappa Muthaliyar, the father. Defendants No. 1, 7 and 11 and deceased Ramayi, Subramanian and the father of Thempazhani are his children. On the death of Ramayi, right devolved on defendants 12 and 13, legal heirs. On the death of Thempazhani, his rights devolved on second defendant widow and defendants 3 to 6, the children. On the death of Subramanian his rights devolved on defendants 8 to 10, his legal heirs. First respondent contended that she is entitled to get her one-seventh share on the death of Veerappa Muthaliyar. Appellant contended that under Ext.B1, 75 cents of the property was sold by Veerappa Muthaliyar and others in favour of Nagamani who in turn assigned it under Ext.B3 to Chandran and under Ext.B5, 56 cents of that property was purchased by Balan, his son and 24 cents was purchased by his RSA 204/2007 2 wife under Ext.B6 and therefore first respondent is not entitled to claim any share. It was also contended that her rights, if any, is barred by adverse possession and limitation.
2. Learned Munsiff framed the necessary issues. On the evidence of PW1 and DW1, Exts.A1 to A3 and B1 to B7, learned Munsiff found that on the death of Veerappa Muthaliyar his rights devolved on the legal heirs including first respondent and first respondent is entitled to get her share separated. It was also found that appellant is only a co- owner and he has not established that rights of the first respondent has been barred by adverse possession. A preliminary decree was passed directing partition of the plaint schedule property into seven equal shares and allotment of one such share to first respondent. Appellant challenged the decree and judgment before District Court, Palakkad in A.S.292 of 2001. Learned Additional District Judge, on re-appreciation of evidence, confirmed the preliminary decree and dismissed the appeal. It is challenged in this appeal.
3. Learned counsel appearing for appellant was heard. The argument of learned counsel was that under Ext.B1 dated 9.11.1959, Veerappa Muthaliyar, the father, along with first respondent and 11th defendant assigned their rights to RSA 204/2007 3 Nagamani, and that right in turn was assigned to Chandran and thereafter under Exts.B5 and B6 it was purchased by the wife and the son of appellant and therefore courts below should have found that first respondent is not entitled to the decree sought for. It was also argued that the allegations in the plaint shows that first respondent was not permitted to take the income and therefore on the evidence it should have been found that rights, if any of first respondent, was barred by adverse possession.
4. On going through the judgments of the courts below and hearing learned counsel appearing for the appellant, I do not find any substantial question of law involved in the second appeal. Even though under Ext.B1 rights over 75 cents of the property was transferred by the father what was transferred is only the fractional share. An assignee of the fractional share cannot contend that the rights of the others have been lost by such assignment. It cannot be disputed that appellant is only a co-owner. Unless there is a clear pleading of ouster and evidence to prove that appellant has been in exclusive possession of the property and that too with the animus to hold it as his exclusive property to the knowledge of other co-owners and the non possessing co-owners are ousted, the plea of RSA 204/2007 4 adverse possession cannot succeed. On the evidence, courts below rightly found that right of first respondent who purchased the fractional shares recognizing the rights of other fractional sharers is not entitled to contend that he has perfected his rights by adverse possession. There was no plea of ouster much less evidence. Courts below rightly granted the decree. No substantial question of law is involved in the appeal. Second appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGElgk/-
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