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KARIKOLAKKADAN MOIDEEN versus KARIKOLAKKADAN ABU

High Court of Kerala

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KARIKOLAKKADAN MOIDEEN v. KARIKOLAKKADAN ABU - AS No. 508 of 1994(A) [2007] RD-KL 6842 (2 April 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

AS No. 508 of 1994(A)

1. KARIKOLAKKADAN MOIDEEN
... Petitioner

Vs

1. KARIKOLAKKADAN ABU
... Respondent

For Petitioner :SRI.T.KRISHNAN UNNI

For Respondent :SRI.T.M.CHANDRAN, K.K.MOHAMMED RAVUF

The Hon'ble MR. Justice K.PADMANABHAN NAIR

Dated :02/04/2007

O R D E R

K.Padmanabhan Nair,J.

A.S.No.508 of 1994-A

Dated, this the 2nd day of April, 2007



JUDGMENT

The 1st defendant in O.S.No.85 of 1991, which is a suit for partition, is the appellant. Plaintiff and defendants 1 to 3 are brothers. 4th defendant is their mother. The plaintiff filed a suit for partition claiming that the plaint-B schedule item No.1 was purchased in the name of plaintiff and defendants 1 to 3 and as such he is entitled to get 2. The trial Court found that the appellant failed to prove ouster. After discussing the evidence on record, the Court below found that there is no material to establish ouster pleaded by the appellant and hence the contention that the other co-owners lost their title by ouster and the appellant perfected his title by adverse possession was found against. It is a finding of fact based on good evidence. Regarding his claim for building also, trial Court found that he has not produced any documentary evidence to prove that he had constructed the building and made improvements in the property by spending his own funds. The appellant did not examine the persons who were engaged for the A.S.No.508 of 1994 construction of the building. The Court below held that the appellant failed to establish exclusive title which he claimed on item No.1, including the building, of plaint-B schedule property. It also held that the 2nd defendant failed to establish the exclusive title claimed by him over the building situated in item No.2 of plaint-B schedule property. 2nd defendant has not filed any appeal challenging that finding.

3. The learned counsel appearing for the appellant has strenuously argued before me that in this case the materials on record clearly establishes ouster.

4. I have carefully gone though the pleadings made in this case. I am afraid, the contention of ouster is not established. The appellant claims adverse possession based on Exhibit B4 series and Exhibit B3 series. Exhibit B3 series are tax receipts, which will show that the appellant was paying land tax from 1975 onwards. Exhibit B4 series also show that he was paying building tax. Exhibit B5 series show that as per the Building Tax Assessment Register the building stands in the name of appellant from the year 1977 upto the year 1992. As rightly held by the Court below, payment of land tax and building tax is not A.S.No.508 of 1994 sufficient to prove the ouster pleaded. So, the findings of the Court below that the plaintiff and defendants 1 to 3 are co-owners and the appellant is not entitled to get any equity and reservation in respect of the building situated in item No.1 of plaint-B schedule property are only to be upheld. The finding that the appellant failed to prove that he had made improvements also does not call for any interference. There is no merit in this appeal and the same is only to be dismissed. In the result, the appeal is dismissed. C.M.P.No.3107 of 1994 also shall stand dismissed. K.Padmanabhan Nair Judge vku/-


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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