Decided on May 20,1968



- (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 in 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.
(3.) 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 (OS No. 152 of 1935) was res judicata regarding items 1, 4 and 6, the judgments therein being Ext. B1 (the judgment of the Trial Court) and Ext. B2 (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 OS No. 152 of 1935 was res judicata.;

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