HIGH COURT OF KERALA
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T.C.Raghavan, J. -
(1.) THE second appeal has been placed before a Division Bench by Madhavan Nair J. as our learned brother felt that the case involved a question of adverse possession fresh for this Court and as such, the expression of opinion by a Division Bench on the question was essential.
(2.) WE shall state the essential ,facts to bring out the question. The nine items of properties involved in this litigation belonged to a Mahomedan by name Pakkrammar. He died in 1916 leaving his widow and children (defendants 1 to 4-the appellants being defendants 2 to 4, the children) and his father Sooppi and mother Kunhoma. The parents together were entitled to a third of his estate and his wife and children were entitled to the rest. But, the wife and children took possession of all the properties. Kunhoma died; and Sooppi also died in 1920 leaving two sons, Pokker and Mammad, and four daughters, Ayissa, Beeyumma, the fifth defendant and the sixth defendant. The plaintiffs, who sued for partition and separate possession of their 12th share ia the suit items as the heirs of Sooppi and Kunhoma, are the widow and children of Pokker; defendants 7 to 12 are the widow and children of Mammad; defendants 13, 14, 20 and 21 are the children of Ayissa; defendants 15 to 19 are the children of Beeyumma; and defendants 22 to 25 are the children of the fifth defendant. The 26th defendant is a person claiming a share through Ayissa's husband. Some of the defendants died and their legal representatives have also been impleaded.
Barring defendants 15 to 19, all the others supported the plaintiffs; and defendants 15 to 19 supported the contesting defendants, defendants 1 to 4.
The contesting defendants claimed that items 7 and 8 did not belong to Pakkrammar and were acquired by them after his death. This contention was found against by both the lower courts; and the same is reiterated in the second appeal. Defendants 1 to 4 also claimed that the decision in an earlier suit (O.S. No.152 of 1935) was res judicata regarding items 1, 4 and 6, the judgments therein being Ex. B-l (the judgment of the trial court) and Ex. B-2 (the judgment of the lower appellate court). The trial court rejected this claim, but the lower appellate court affirmed it. The memorandum of cross-objections is directed against this decision by the lower appellate court. Defendants 1 to 4 had yet another contention regarding all the items: they contended that they perfected full title by adverse possession by holding the properties adversely for about 36 or 37 years since the death of Pakkrammar to the filing of the suit in 1953. Both the lower courts rejected this. They have held that all the items excepting items 1, 4 and 6 are partible. The trial court has further held that items 1, 4 and 6 are also partible, while the lower appellate court has held that they are not partible since the decision in O. S. No.152 of 1935 was res judicata.
(3.) WE may observe, at the very outset, that some of the findings of the lower courts cannot be seriously disputed: and one of them is that since the death of Pakkrammar in 1916 defendants 1 to 4 had been in possession and enjoyment of the suit items till the filing of the suit in 1953 without sharing the income with any other sharer. The plaintiffs had a case that they received their share of the income till six years prior to the institution of the suit: but pw. 1, the second plaintiff, admitted that nothing was received in cash and their share of the income was also utilised for the improvement of the properties. The lower courts, as already stated, have held that nothing was paid to anybody by defendants 1 to 4. In April 1952 the plaintiffs sent Ex. A-3, the suit notice, claiming their share; defendants 1 to 4 sent Ex. A-5,'their reply, denying the plaintiffs' right to share; and the suit was instituted in 1953.
About items 7 and 8 also, though it is urged before us by Mr. Ramakrishnan, the counsel of the appellants, that the concurrent decision of the lower courts is erroneous, we are of opinion that these items belonged to Pakkrammar and the subsequent acquisition claimed by the appellants (Ex. B-12) was only a renewal of the earlier one by Pakkrammar with the result that these items also are properties left by Pakkrammar.;
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