PARAMPAT MUHAMMAD ALI Vs. KADEEJA UMMA
HIGH COURT OF KERALA
PARAMPAT MUHAMMAD ALI
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(1.) These two appeals arise from the common judgment passed in O. S. No. 56/1988 and O. S. No. 67/1988 on the file of the Sub-Court, Manjeri. The appellants in A. S. No. 177/1992 are the plaintiffs in O. S. No. 67/1988 and appellants in A. S. No. 43/1993 are the plaintiffs in O. S. No. 56/88 on the file of the Sub-Court, Manjeri. Both the suits are filed by the respective parties for partition of the properties scheduled in the respective plaint.
(2.) For the sake of convenience the plaintiffs in O. S. No. 56/1988 can be referred as the plaintiffs and the plaintiffs in O. S. No. 67/1988 can be referred as the defendants. The case of the plaintiffs in O. S. No. 56/1988 is that the property scheduled in the plaint was set apart to the share of Alavi, the father of the plaintiffs 1 to 4 and defendants 1 to 4 and husband of the 5th plaintiff as per partition deed No. 1684/1977. He was in possession and enjoyment till his death on 12-8-1984. The plaintiffs and defendants are the legal heirs of deceased Alavi. The defendants are residing in the property and taking income on behalf of the other co-owners. After the death of Alavi, the plaintiffs demanded for partition and separate possession of their share from the property but the defendants did not heed their demand. The property will fetch an annual income of Rs. 2256/-. The plaintiffs are entitled to get partition and separate possession of the share in the property.
(3.) Defendants 1 and 3 filed a joint written statement contending that the plaint schedule property was orally gifted to them by their father Alavi in the year 1978 and while they were in joint possession, they partitioned the plaint schedule property on 28-11-1984 as per Ext. B 1 registered partition deed. In pursuance of the partition deed, the parties are in separate possession and enjoyment of their respective shares. After the gift, Alavi had no right in the property and as such it is not liable to be partitioned. They filed O. S. No. 67/1988 for partition of joint property in the possession of the plaintiffs and 4th defendant. If it is found that the property is liable to be partitioned, they are entitled to get the improvements in the said property.;
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