NELLIKKATHODI KALI Vs. NELLIKKATHODI ITTIKEERAN

JUDGEMENT

(1.) Defendant Nos. 8 to 12 in O.S.19/1981 on the file of the Munsiff Court, Manjeri are the appellants herein. The suit was one filed by the plaintiff, who is the first respondent in this appeal for partition of the plaint schedule properties and allotment of his share with following allegations:

(2.) Since the first defendant was not amenable for partition, plaintiff has no other remedy, except to approach the court for partition of the plaint B-schedule properties and allotment of his 1/3rd share with past and future profits. First defendant died on 15.5.1984 and supplimental defendants 7 to 12 were impleaded as his legal heirs as per order in I.A.936/1984.

(3.) First defendant entered appearance and filed written statement contending that the suit was not maintainable, the description of plaint B schedule property was not correct and it was not identifiable. First defendant was not in possession of any joint property. Certain properties comprised in resurvey No.297/6 were obtained by the first defendant as his self acquired properties and neither the plaintiff nor the 4th defendant had any joint ownership or possession over the said properties. About 70 cents of land comprised in resurvey No.297/6 was obtained by the first defendant from Thalayoor Illom about 35 years ago and he had been in possession and enjoyment of the same. The allegation that, plaint B-schedule properties were properties included in kanam demisie in favour of their grandfather is not true and correct and hence neither the plaintiff nor 4th defendant was entitled to get any share out of the properties in the possession of the first defendant. The entire property included in the kanam demise were not included in the plaint schedule property and hence the suit was bad for partial partition. The building in which the defendant residing situated in the plaint B-schedule property, was not constructed by the predecessor of the parties. Neither Cherunni nor Valiyathan had got any right or ownership over the building in which first defendant was residing. The allegation that the building situated in Item No.2 and 3, was constructed by the first defendant by utilising the income derived from plaint B-schedule property was not correct and so denied. He had not cut and removed any improvements from plaint B-schedule properties and he was not liable for any damages. The allegation that the plaintiff had made demand for partition was denied by him. He had sold only the share of the defendant to defendants 5 and 6 and it is not sold to defeat the right of the plaintiff as alleged in the plaint. The calculation of share made in the plaint is not correct. Neither the plaintiff nor the 4th defendant was entitled to get any share. The plaintiff was not entitled to get mesne profits. Further first defendant had been in possession of the property for more than 35 years with a knowledge of the plaintiff and other legal heirs and right if any of the plaintiff and other legal heirs over the property was lost by ouster and adverse possession. The plaintiff was not entitled to get any relief. The geniology tree shown was not correct. He prayed for dismissal of the suit.