M DISTRICT v. sATHyASRELmT D

By anvs. MINI GANGADHARAN FOR R90 & R91 SRI.AliEXANDER GEORGE FOR R82 SRI.ABRAHAM GEORGE JACOB FOR R46 SRI . s .BIru KlzHAKKANELA SRI.M.RAdENI>Rzn¢ NAIR FOR Rlo3 & 1o4 SRI.B.SURESH KumR FOR R89 SRI.StJENY ZACHARIA FOR R2, R3, R5, R6, R8, R10 SMT . M . SANTHY SRI.SUNII-N.SHEN0I FOR R99, R100, R101 & R102 REA NO. 52 0F 2009 16 SRI.K.`v.vlNOD Foe R99, Rloo, Rlol & Rlo2 2 02 5 : KER : 2 610 6 I H I S RE GUIAR F I RS I APPEAII HAV.ING COIE UP FOR HEARING/ORDERS ON 14.02.2025, THE COURT ON 27.03.2025 DEI.IVERED TIIE FOI.LOWING : BEA NO. 52 0F 2009 17 2 025 : KER : 2 610 6 JUDGMENT Defendants 72 to 74 in O.S.No.79/1989 on the files of Principal Sub Court, Kollam have come up in the present appeal. Suit is for partition, in].unction and consequenti.al reliefs.

2. Thebrieffacts necessaryforthe disposal of the appeal, ,are as follows: The plaint A schedule property having an extent of 12 cents and 8 schedule property having an extent of lo cents originally belonged to Paranthiyil Veylu Mangattu Family. The properties were given to Anandan Raman as ottikuzhikanam- for a consideration of 14oo pa7iam as per ottikuzhikanam document dated 3.12.1o78 M.E. The properties were thus remaining in thei possession of Anandan Raman. Anandan Raman died leaving behind his wife Kurumba and nine children, Kesavan, Velu, Neelakandan, Krishnan, Gopalan, Kochuupennu, Kunjamma, Ummini, Kun].ukali. The appellants traced their title to the predecessor-in-interest, Karunakaran, who is the son of Kunjukali. 'The plaintiffs are the legal heirs of ummini, the 8th child of Anandan Raman and Kurumba. The .9th plaintiff is the daughter of Kunjukali. The 5th and 6th children, REshnan and REA NO. 52 0F 2009 18 Kunjamma, died issueless. Kunjukali had four children, the 9th 2025 : KER: 26106 plaintiff, the 26th defendant, Kalyani and Karunakaran. Karunakaran is the 33rd defendant in the suit. The appellants, are the legal heirs of Karunakaran, the 33rd defendant. For a better appreciation of the flow of title, the genealogy chart of the family is appended in this judgment at page No.45.

3. While so, the members ofthejoint family of the original jenmi filed O.S No.134/1966 before the Munsiffs Court, Kollam against plaintiffs 1 to 9 and defendants 1 to 36 in this .case for redemption of the mortgage. In the said suit, the lst defendant and the other children and grandchildren of Anandan Raman, who were alive at the time of the institution of the suit, raised a plea that the plaintiffs therein are not entitled to redeem and recover the plaint schedule property thereunder. During the pendency of the suit, the Kerala Land Reforms Act, 1964 was amended by Act 35 of 1969 and by operation of Section 4A of the provisions of the said Act, which came into force on 1.1.197o, the plaintiffs and defendants .1 to 36 obtained fixity of tenure over the plaint A and 8 Schedule properties. Accordingly, O.S No.134/1966 was dismissed by the Munsiffs Court, finding that the landlords are not entitled for redemption of the REA NO. 52 0F 2009 19 property, since the defendants are entitled to fixity of tenure under 2 0 2 5 : KER : 2 610 6 the provisions of the Kerala Land Reforms Act. Aggrieved by the judgment and decree in O.S.No.134/1966, an appeal was preferred by the jenmi family before the District Court, Kollam as A.S No.46/1972. The appeal was also dismissed affirming the findings of the trial court. Thus, the plaintiffs 1 to 9 and defendants 1 to 36, who are the legal heirs of deceased Anandan Raman, were stated to have become absolute owners of plaint A and 8 schedule properties and are being continued as such.

4. Going by the plaint averments, the children ofAnandan Raman by name Kesavan, Velu, Neelakandan, Kochupennu, Ummini, Kunjukali, Gopalan and Krishnan are entitled to 1/8 share each over the plaint schedule properties. The three shares entitled to, Neelakandan, Krishnan and Gopalan and 1/8 share to Kochupennu had been released by their legal heirs and, hence, defendants 2 to 7, who are the children of Kesavan, have got 1/8 share in the plaint A and 8 schedule properties. It is further contended that the lst plaintiff and late Vidyadharan jointly got 1/8 share. The 1/8 share entitled to Kunjukali devolved upon Nanu, Sarada (9th plaintifD, Gor^ri (26th defendant), Kalyani and Karunakaran (33rd defendant). According to RNA NO. 52 0F 2009 20 the plaintiffs, defendants 8 to 12, who are children of Velu, had got 2 02 5 : KER : 2 610 6 1/8 share and they had alienated their 1/8 share in the plaint 8 schedule property in favour of the 37th defendant in the case. Nanu, S/o. Kunjukali died after his marriage and predeceased his wife. Nanu, Sarada (9th plaintifD, Gowri and defendants 27 to 32, who are the children of Kalyani, and the 33rd defendant had got 1/5 share in the 1/8 share since Nanu died issueless. Thus, each of them have got 1/4 share in the 1/8 share. The lst plaintiff and the legal heirs of late Vidyadharan, who are plaintiffs 2 to 8 and lo to 12, had got 1/8 share jointly. It is further averred that Sarada, the 9th plaintiff, had got 1/4 share in 1/7 share, that is 1/28 share. It is further conten.ded that the ist plaintiff had got 1/2 share in the 1/4 share and the plaintiffs 2 to 8 and lo to 12 got 1/2 share in 1/7 share, that is 1/14 share. Though the plaintiffs had demanded the defendants 1 to 33 to join with them for partition of the plaint schedule property, they did not accept it. According to the plaintiffs, the 33rd defendant had constructed certain shop rooms on the western side of the plaint schedule property without the consent and knowledge of the plaintiffs and others. The •defendants 38 to 49 are the tenants in the shop room and the 2nd defendant is using the shop room in the plaint A schedule property RFA NO. 52 0F 2009 21 and making preparations ,for new constmctions in it disregarding the 2 025 : KER : 2 610 6 residence of other co-owners. Therefore, according to the plaintiffs, defendants 2 and 33 have no right to make any construction in the plaint schedule properties since they are only co-owners of the same along with the plaintiffs and other defendants`. Defendants 2 and 33 had filed separate whtten statements. The 37th defendant supported the plea of the plaintiffs. The 33rd defendant contended that the plaint schedule property does not belong to the plaintiffs. 'The suit was instituted by the plaintiffs in collusion with the 37h defendant and his brother, Saji, just to harass the defendants. The deceased Anandan Raman had not obtained possession over the plaint 8 schedule property by virtue of the ottikuzhikanam document. The ottikuzhikanam document is only `a purakkczdczm, insofar as the plaint 8 schedule property is concerned. The plaint 8 schedule property came into the possession of Anandan Raman only after lo81 M.E. In lo88 M.E Anandan Raman partitioned his property among his children and shifted his residence to Parippally. Thereafter, it was the mother and brothers Of the 33rd defendant, who were in possession and enjoyment of the plaint 8 schedule property by residing in the building in it. While so, the sister(s) of the 33.rd REA NO. 52 0F 2009 22 defendant was/were married off by making use of his own funds. The 2 02 5 : KER : 2 610 6 mother of the 33rd defendant died in the year 1943 and the marriages of the younger sisters, including the 9th plaintiff, were conducted in the year 1945. From 1945 onwards, the 33rd defendant is in absolute possession and enjoyment of the plaint 8 schedule property by residing in it along with his family and making improvements. The brother of the 33rd defendant, Padmanabhan Nanu continued to reside along with him and his family in the building in the plaint 8 schedule property and by 196o, he shifted his residence to Pulickal veedu. After 1945, none of the sisters of the 33rd defendant have resided in the house along with the 33rd defendant in the plaint 8 schedule property. Thus, plaint 8 schedule property remained in the exclusive and absolute possession and enjoyment of the 33rd defendant and his family ever since 1945. The 33rd defendant further raised a plea that in the year 1974, he filed O.A.No.74/1974 before the Ithikkara Land Tribunal, in which Raman Neelakantan, Raman Krishnan, Raman Gopalan, Padmanabhan Nanu, Narayanan Vidyadharan, Vasu, Raveendran, Velu Raghavan, K,unchali Gouri, Kunchali Kallyani and Kunchali Sarada, who are the children and grandchildren of deceased Anandan Raman, were impleaded as RFA NO. 52 0F 2009 23 respondents/ intermediari,es along with the members of the jenmi 2 0 2 5 : KER : 2 610 6 family. Subsequendy, the said O.A was amended on knowing that the right available to the 33rd defendant under the Ke`rala Land Reforms Act is as a deemed tenant. Meanwhile, the Ithikkara Land Tribunal was abolished, and the said O.A was transferred to the Kollam Land Tribunal and renumbered as O.A No.5oo/1975, and by order in the said O.A, the 33rd defendant obtained purchase certificate in respect of the plaint 8 schedule property having an extent of 18 cents. Therefore, it was specifically contended that once the purchase certificate was issued, the 33rd defendant has absolute right, title, and interest over the property. It was also contended that the right, if any, of the plaintiffs had lost by adverse possession and ouster and, therefore, the suit be dismissed.

5. Onbehalfofthe plaintiffs, Exts.Al to A43 documents were produced and marked. Exts.Bl to 814 were marked on the side of the defendants. The report of the Advocate Commissioner was marked as Ext.C1. PWs Jl to .3 were examined on behalf of the plaintiffs, whereas DW.1 was examined on behalf of the defendants. On the basis of the evidence and pleadings on record, the trial court framed the following issues : - RNA NO. 52 0F 2009 24 "1) Whether the suit is bad for non-joinder of 2 02 5 : KER : 2 610 6 necessaryparties? Whether the plaint schedule properties are available for partition? 3) Whether the right if any of the plaintiffs and othersoverplaintAschedulepropertyislostby ouster and adverse possession of 2nd defendant? 4) Whether plaintiffs are taking any share in the plaint schedule items? l^7hether and defendant has made substantial improvements in plaint A schedule item No.1 as contained? If so, whether he is entitled to any value of improvements? 6) Whether plaint B schedule property belongs to 33rd defendant alone? Whether the 33rd defendant made valuable improvements in plaint 8 schedule property, if so whether 33rd defendant is entitled to get value of improvements? 8) Whether the suit is not maintainable? 9) Whether 37th defendant entitled to get partition and separate possession of his share? If so what is his share'? 1o) Whether injunction prayed for is allowable? RFA NO. 52 0F 2009 25 11) Reliefs and costs?" 2 0 2 5 : KER : 2 610 6

6. On appreciation of evidence, the trial court came to the conclusion that the 33rd defendant is not entitled to any absolute right over the plaint schedule property, inasmuch as the possession of the 33rd defendant was only as that of the other co-owners. Therefore, the court came to the conclusion that merely by obtaining purchase certificate, the 33rd defendant will not get any absolute right, title and interest over the property. The trial court further held that the possession, if any, of the 33rd defendant is deemed to be as that of other co-owners and, therefore, the 33rd defendant did not have any absolute right over the property and hence, decreed the suit. Aggrieved by the judgment and decree in O.S.No.79/1989, the defendants 72 to 74 have preferred the present appeal.

7. Heard Sri.S.V.Balakrishna Iyer, the learned Senior Counsel, assisted by Smt.Aiswarya Mohan, appearing on behalf of the appellants and Sri.Abraham George Jacob, the learned counsel appearing on behalf of the 46th respondent/37h defendant and Sri.M.Rajendran Nair, the learned counsel appearing for respondents lo3 and 104. RFA NO. 52 0F 2009 26

8. Before proceeding to consider the rival submissions 2 02 5 : KER : 2 610 6 raised across the bar, this Court finds that except the 37th defendant, none of the legal heirs of the plaintiffs have contested the present appeal. In the backdrop of the above facts, this Court proceeds to analyse the rival submissions raised on behalf of the parties. Sri.S.V.Balakrishna Iyer, the learned Senior Counsel appearing on behalf of the appellants, submitted that as early as in the year 1966, when the suit was instituted by the members of the jenmi family, the 33rd defendant and his parents were in exclusive possession. The Munsiffs Court in O.S No.134/1966 had taken notice of the exclusive claimofthe2nddefendantovertheplaintAschedulepropertyandthe 33rd defendant over the plaint 8 schedule property. After filing of O.A No.33/1974 and after disposal of A.S No.46/1972, the 33rd defendant obtained 4/8 share under Exts.A13 and A14 release deeds. The purchasecertificatehavingbeenissuedonl8.6.1976(Ext.82),thesuit was instituted only on 14.3.1989, i.e. beyond 12 years of the issue of the final order (Ext.A18) and the purchase certificate. In the light of Exts.A13 and A14, even if it is assumed that the plaintiffs are entitled to maintain the suit, they are not entitled for share to the extent as ordered by the trial court. Out of the 8 sharers, four sharers have no RFA NO. 52 0F 2009 27 claim because of Exts.A13 and A14. Out of the remaining, the legal

2.0 2 5 : KER : 2 610 6 heirs of Kesavan do not have any claim or right in the plaint 8 schedule property. As far as plaintiffs 2 to 8 and lo to 12 are concerned, they are bound by Ext.A18 order because of their predecessor, Vidyadharan, was a party to the proceedings, and he did not file any appeal against the said order. None of the children of the 33rd defendant had raised any challenge to Ext.A18 since they did not file any appeal against the same. Therefore, the 9th plaintiff is also bound by the order passed by the land tribunal. He further pointed out that plaintiff No.1 having been represented by her brother Vidyadharan, shares of defendants 3 to 7 and 8 to 12 and plaintiff No.1 are also not allottable to them. Thus, th.e purchase certificate gives absolute right and title over the plaint 8 schedule property to the appellants. It is further pointed out that in respect of plaint A schedule item, the right of Kesavan had been recognised as early as in the year 1944 in Ext.A4 partition deed of 1119 M.E by stating that the property will be allotted to him without any improvements. Concluding his submissions, the learned Senior Counsel also raised the question of ouster, especially in the light of unimpeachable evidence produced by the. appellants before the trial court. According REA NO. 52 0F 2009 28 to the learned Senior Counsel, the findings rendered by the trial court 2 02 5 : KER : 2 610 6 on the plea of ouster are erroneous and therefore, liable to be interfered with by this Court.

9. On the other hand, Sri.Abraham George Jacob, the learned counsel appearing for the 46th respondent, contented that the plaint schedule properties though originally belonged to Paranthiyil Veylu, Mangattu family, the properties were mortgaged to Anandan Raman as ottikuzhikanam. He reiterated the submissions on the basis of the averments in the plaint. It is further contended by the learned counsel that the 33rd defendant cannot claim exclusive right over the property by virtue of the proceedings in O.A Nos.5oo/1975 and 733/1975. According to him, Exts.82 and 84 purchase certificates had been obtained by fraud and ignored as invalid and inoperative. Ext.82, according to the learned counsel, had been obtained on the basis of Ext.A21 application filed by the 33rd defendant and Ext.84 was issued on the basis of Ext.A23 application. In Ext.A21, the landlord's name is given as Parameswaran Pillai and the basis of the claim is Ext.A3 judgment and the ottikuzhikanam and the other claimants mentioned are Raman, Neelakandan, Krishnan, Gopalan, Ayyappan and Narayanan. The names\ and addresses of RFA NO. 52 0F 2009 29 defendants 1 to 36 had not been mentioned in either Exts.A2 or A3. 2025 : KER: 2 610 6 It is further pointed out that the persons who are entitled to the share on the basis of Exts.A2 and A3 are not made parties in the O.A proceedings and, therefore, the 33rd defendant is not entitled to claim any absolute right. It is lastly submitted that, at any rate, Exts.82 and 84 will not affect the rights of the plaintiffs and the defendants. In Exts.A4, A13 and A14, the 33rd defendant admitted the oodrkoor rights of the others in the ottikuzhikanam and therefore, the possession of the 33rd defendant is that of a co-owner and therefore, the rights of other parties cannot be excluded. Insofar as the plea of ouster is concerned, according to the learned counsel, though the plea of ouster is tenable, it ought to have been supported by concrete evidence. The trial court after appreciation of the evidence had found that the plea of ouster cannot be sustained and therefore, had rightly decreed the suit and thus he prayed that the appeal be dismissed by confirming the judgment and decree of the trial court. 1o. Shri M.Rajendran Nair, learned Counsel appearing for respondents lo3 and 1o4 contended that they purchased the property in the year 2oo6 from the predecessors of the appellants and that the rights of co defendant was not decided ,in OS No.134 of 1966 and REA NO. 52 0F 2009 30 hence the contention of the plaintiffs that they took the properties as 2 02 5 : KER : 2 610 6 co tenant cannot be accepted. In fact, the learned counsel went to the extent of stating that Late Anandan Raman did not get the property by virtue of ottikuzhikanam and therefore question of application of Section 2(39) of the Kerala Land Reforms Act 1964 does not arise. The subsequent purchase being bona fide in nature, they are entitled to equity.

11. I have considered the rival submissions raised across the bar and have perused. the records.

12. On the basis of the rival pleadings raised across the bar, it is imperative for this Court to decide, primarily, two issues; (a) Whether the 33rd defendanthad any absolute right or title over plaint B schedule property by virtue of Ext.82 purchase certificate? (b) If not, is the plea of the 33rd defendant on ouster sustainable?

13. Before delving into the rival contentions, this Court is reminded of the fact that respondents lo3 and lo4 being the subsequent purchasers of the property after passing of the decree cannot raise any contention other than one available to the RFA NO. 52 0F 2009 31 appellants. Of course, it is open for them to point out that the 2 02 5 : KER : 2 610 6 plaintiffs are not entitled to any relief in the suit. In the above back drop, this Court proceeds to consider the issues presented before it. Decision of this Coulf on the first issue will determine the fate of this appeal to a greater extent and if the decision is in favour of the appellants, then the plea of ouster is mere academic,. However, if the finding in the first issue is negative, still, the appellants ,could successfully maintain ,a plea of ouster.

14. The appellants trace the devolution of their title towards 33rd defendant in the suit. To apprecia.te the contention of the 33rd defendant, it is important that an extensive consideration be bestowed upon Ext.A2, the judgment and decree in O.S No.134/1966. It must be borne in mind that the suit was initially instituted by the members of the jenmi family for redemption of the mortgage. In the aforesaid suit, it was specifically noticed by the Munsiff s Court, Kollam that the defendants are entitled to fixity of tenure. Though the said judgment was questioned before the appellate court in A.S No.46/1972, the abpeal was also dismissed. Therefore, it is an indicative factor to prove that late Anandan Raman had obtained possession of the property on the basis of the ottikuzhikanam. RFA NO. 52 0F 2009 32

15.,` Now, coming to the plea of the 33rd defendant that he has 2 025 : KER : 2 610 6 absolute right over the property by virtue of the purchase certificate issued by the land tribunal, certain unassailable facts must be discussed by this Court. Ext.A4 is a partition deed between Kurumba, W/o.deceased Anandan Raman, and eight children. As per Ext.A4 partition deed, the mortgage righ`t under Ext.Al was divided equally among the eight children of Anandan .Raman with a specific right to Kesavan, the father of the deceased 2nd defendant. Be that as it may, when Ext.A4 partition deed was executed, Kunjukali was no more and - the 33rd defendant did notjoin the partition deed and that other legal heirs of deceased Kunjukali refused to join as parties to the partition deed. It is pertinent to mention that the partition deed was executed in the year 1119 ME. It is worthwhile to mention that the specific case set up by the 33rd defendant is that he is in possession of the plaint 8 Schedule property from lo88 M.E. It is indisputable that the mo.ther of Kamnakaran died in the year 1943 and in the same year the partition deed Ext.A4 was executed. So long as the legal heirs of deceased Kunjukali did notjoin in execution of Ext.A4, the plaintiffs cannot successfully maintain the plea that all the defendants in OS No.134/1966 are tenants in common and Ext.A4 is binding on RFA NO. 52 0F 2009 33 defendant no.33. The contents of Ext.A4 will go a long way in 2 0 2 5 : KER : 2 610 6 establishing the fact that the 33rd defendant was in exclusive possession of the property. It is in this context, the findings of the lower appellate court in A.S No.46 of 1972 has to be construed. The 33rddefendanthadaspecificpleathathehasgotfixityoftenurebased on his possession as per Section 4A of the Kerala Land Reforms Act,

1964. This plea was accepted by the appellate court. The finding has since become final. So, when the 33rd defendant set up a plea of exclusive title over the property, the plaintiffs attempted to get over the plea by raising a contention that going by Ext.A4, .all the defendants in O.S No.134/1966 are tenants in common. The said plea found favour with the trial court while decreeing the suit. In view of the indisputable fact that neither late Kunjukali or her legal heirs being parties to the partition deed, the contents of the same cannot bind on them. Even assuming that Ext.A4 is binding on the 33rd defendant owing to its peculiar nature of being a family arrangement, this Court cannot bu.I notice the compelling facts that the plaintiffs 1 to 8 were allotted the 8th schedule whereas Late Kunjukali and her legal heirs were set apart with the 9th item. The description of the 8 Schedule matches with that of the 9th Schedule of Ext.A4. It is beyond RNA NO. 52 0F 2009 34 one's comprehension as to how the plaintiffs could stake their claim 2 0 2 5 : KER : 2 610 6 to 8 Schedule property, especially since they were allotted a share under Ext A4. It must be borne in mind that the suit for partition is not based on Ext.A4, but on the assertion that the plaintiffs are tenants in common with that of the defendants. When a further scrutiny of Ext.A4 is made, it becomes evident that Late Kurumba, the predecessor in interest of Ummini under whom the plaintiffs 1 to 8 traced their title, reserved life interest only on items 1 to 8 in Ext.A4. This leads a strong credence to the case set up by the 33rd defendant that he is in exclusive possession of plaint 8 Schedule property. Still further, the application before the land tribunal is on the basis of the finding of the lower appellate court that he is a deemed mortgagee under Section 4A of the Kerala Land Reforms Act. If that be so, inevitably, the finding of the trial court that all the defendants took the plaint schedule properties as tenants-in-common cannot be sustained. The fact that none of the heirs of Kunjukali was party to the partition deed is a strong indication that the deceased Kunjukali held the properties in exclusion to the others. The staunch silence on the part of the plaintiffs from lo88 M.E (1943) till 1989 is also a strong indication that the 33rd defendant was in exclusive possession of the RFA NO. 52 0F 2009 35' plaint 8 Schedule property and, therefore, the finding to the contrary. 2 0 2 5 : KER : 2 610 6 by the trial court is palpably wrong.

16. As regards the application before the land tribunal is concerned, the specific case set up by the 33rd defendant, Sri Karunakaran, is that the lower appellate court had accepted his plea that he had got a fixity of tenure under Section 4A of the Kerala Land Reforms Act, 1964 and hence the application was maintainable. On perusal of the Ext.A21 application in OA No.5oo of 1975 on the files of Ithikkara Land Tribunal, it is evident that the 33rd defendant set up his title based on the findings of the lower appellate court in A.S No. 46, of 1972. Still further, the devolution of title is sought to be traced to his mother, Late Kunjukali, who came into possession of the property from her father Late Anandan Raman by virtue of the ottikuzhikanam in the year lo78 M.E„ When one analyses the finding of the lower appellate court in A.S No.46 of 1972, the irresistible conclusion is that the 33rd defendant is a mortgagee under the ottikuzhikanam and is entitled to fixity of tenure under Section 4A of the Kerala Land Reforms Act, 1964 and thus the application was perfectly maintainable. It must be borne in mind that in the light of the recitals in Ext.A4, the property covered in items 1 to 9 allotted to RFA NO. 52 0F 2009 36 the parties is in the nature of "oodrkoor". Exts.A13 andA14 release 2 0 2 5 : KER : 2 610 6 deeds were executed in favour of the 33rd defendant. It is in this context that this Court finds considerable force in the submissions of the learned Senior Counsel, Shri S.V.Balakrishna Iyer, that the 33rd defendant had impleaded the heads of the 7 branches and his own brother in OA No.5oo/1975, which led to an order in his favour and theconsequentpurchasecertificate.Itispertinenttomentionthatthe father of the 3rd plaintiff, Sri.Vidhyadaran, was a party to O.A No.5oo of 1975 and that the order passed by the tribunal is thus binding on the legal heirs. No case of fraud or collision is urged before this Court. Furthermore, none of the plaintiffs have chosen to appear before this Court and contest the appeal on merits.

17. Although the learned Counsel for the 46th respondent/defendant no.37 vehemently pointed out that a reading of Exts.A13 and A14 will disprove the plea of exclusive possession set up by defendant no.33 and that the contents of Exts.A13 and A14 will gotoshowthattheexecutants,thereinhadtherightofinheritanceand hence the cla.im of exclusive possession is disproved. However, this Court is not in a position to accept the argument. The necessity to execute Exts.A13 and A14 documents itself is beyond one's RFA NO. 52 0F 2009 37 comprehension, especially when parties were allotted respective 2 0 2 5 : KER : 2 610 6 shares in Ext.A4 partition deed. But even if it is assumed that the parties therein wanted to reduce their bargain into whting, they were perfectly entitled to do so. Still further a close reading of Ext.A13 document shows that the exclusive possession of the 33rd defendant ` and his mother over the plaint 8 Schedule property is accepted by the vendors therein. The plaintiffs or as a matter of fact the 37th defendant cannot eschew a .portion of Exts.A13 and A14 and project only those parts which are in their favour. When Exts.A13 and A14 are read as a whole, the irresistible conclusion is that the 33rd defendant has successfully proved his possession over the plaint 8 Schedule property in exclusion to others.

18. The learned counsel, Sri Abraham George Jacob, further asserted before this Court that there can be no adverse possession against a co owner. In support of his contention, he relied on the decisions of this Court in Joy Kuriakose Vs Kulakose [2ol5 KHC 2o] and John.P (dead) Vs P.J.George (dead) [2o24 KHC 7176]. This Court has no doubt regarding the proposition canvassed by the leamed Counsel for the 37th defendant. But the pertinentquestioninthiscaseisnotregardingadversepossessionbut RFA NO. 52 0F 2009 38 ouster. Have the appellants succeeded in proving the same? The 2 0 2 5 : KER : 2 610 6 following discussion will ultimately take this Court to the conclusion.

19. The rule regarding what constitutes an ouster of a co-sharer from the joint property is well settled by the decision of Their Lordships of the Judicial Committee of the Privy Council in a case which went from Ceylone. In Thomas v. Thomas [1855 (2) K&J 79], it was held that possession is never considered adverse if it can be referred to as a lawful title. To succeed on the ground of ouster, the person setting up ouster is bound to show that he did set up adverse or independent title during the period, which was beyond the statutory period of 12 years. 2o. The uninterrupted sole possession of such property, without more, must be referred to the lawhl title possession by the joint holder to use the joint estate, and cannot adversely claim against other interested members. The possession may be either lawful or unlawful, in the absence of evidence, it must be assumed to be the former. While deciding the question of ouster or exclusion from the joint property in true route what is deducible is that there can be no adverse possession by one co-sharer as against others until there is an ouster or exclusion and that the possession of the co-sharers becomes RFA NO. 52 0F 2009 39 adverse to another co-sharer from the moment when there is ouster. 2 025 : KER: 2 610 6 That is after the assertion of an ouster title by one co-sharer against the other and to the knowledge of the latter.

21.. In Govindammal v. R.Perumal chettiyar.& Others I(2oo6) 11 SCC 6oo], the Supreme Court held that a co-sharer becomes constructive trustees of the other co-sharers and the right of a person or its predecessor in interest is deemed to have been protected by the trustees. In order to prove ouster and adverse possession against the co-sharer, the following relevant factors have to be taken into consideration: (i)Exclusive possession and perception of profits for well over the period prescribed by the law of limitation; (ii) Dealings by the party in possession treating the properties as exclusively belonging to him; (iii) The means of excluded co-sharer of knowing that his title has been denied by the co-owner in possession.

22. Again, in Des Raj & Ors vs Bhagat Ram (Dead) By Lrs. & Ors I(2oo7) 9 SCC.'641], the Supreme Court considered the issue of adverse 'possession and ouster in suits relating to partition. It was held that a plea of adverse possession or a plea of ouster would RNA NO. 52 0F 2009 40 indisputably be governed by Articles 64 and 65 of the Limitation Act. 2 02 5 : KER : 2 610 6 Mere assertion of the title by itself may not be sufficient unless the pardes prorve cminis possidend±.

23. In B.R.Patflv. TulsaYsawkar &Others [2o22 SCC OnLine SC 24o], the Supreme Court had occasion to consider the plea of ouster in a wider perspective and it was held that the very essence of adverse possession and therefore ouster lies in a party setting up a hostile title in himself. The possession of a co-owner is ordinarily on his behalf and also on behalf of the entire body of the co-owners. In the case of an ouster, the co-owner must indeed have the hostile animus. He must assert a title which is not referable to a lawhl title.

24. Based on the principles expoundedby the supreme court in the aforesaid decisions, it becomes imperative for this Court to deduce the evidence that is adduced in the present case to consider the plea of ouster in a deeper perspective. Apart from the evidence in the present case, the pleadings of the 33rd defendant in the written statement show that 12 shop rooms were coristructed by the 33rd defendant after issuance of the purchase certificate and the same were let out. The plaintiffs have no case that at any point of time prior to RFA NO.. 52 0F 2009 41 the institution of the suit, they had demanded any share of the rent 2 02 5 : KER : 2 610 6 that was derived from the shop rooms. A reading of Ext.A2 judgment shows that the averment of the 33rd defendant herein who was a party to the suit, that he is in .exclusive possession of the plaint 8 schedule property and the house constructed therein is not seen disputed seriously by either Vidyadharan, the predecessor in interest of the plaintiffs or any other person. The house, which was the subject matter of the proceedings in O.S No.134/1966, was demolished and re-constructed in 1977, and thereafter, fou`r` shop rooms were built in the year 1978. Either immediately after the ].udgment was rendered in O.S No.134/1966 or within the statutory period of limitation of 12 years before the date of filing of the suit in the year 1989, it appears that none of the parties had come forward with any claim for share in the plaint schedule properties. It was only when the legal heirs of the 33rd defendant started construction of the building in the year 1988, the suit was filed.

25. One additional fact which would prompt this Court to hold in favour of the appellants on the plea of ouster is Exts.Cl and C1(a) reports. The report of the advocate tcommissioner shows that the building was constructed earlier and it is pretty old at the time of RNA NO. 52 0F 2009 42 his visit. Therefore, there is a clear indication that the building was in 2 0 2 5 : KER : 2 610 6 existence immediately after the Ext.82 purchase certificate was obtained.

26. Before concluding finally on the issue ofouster, this court needs to take note of the contention raised on behalf of the 37th defendant. No doubt, the learned counsel is right in contending that mere nonparticipation in the rent and in profits of the land of a Co- sharer does not amount to ouster and give. title by adverse possession to the other co-sharers. But, this Court cannot ignore the fact that none of the plaintiffs have come forward to contest the appeal on merits and it is only the 37th defendant is contesting the case. This, gives a strong indication that the plaintiffs have instituted the suit solely at the instance of the 37h defendant for the purpose of harassing the appellants.

27. With 'these impelling facts, when this Court proceeds to test the findings of the trial court,` the inescapable conclusion is that the trial court misdirected itself to, the entire issues ''by pining down the appellants to the findings of the trial court in OS No.134/1966. In the considered view of this Court, the findings in OS No.134/1966 having merged into the findings in A.S No.46 of 1972, the trial court went RFA NO. 52 0F 2009 43 wrong in holding that since defendants were tenants in common, the 2 0 2 5 : KER : 2 610 6 application filed by the 33rd defendant was for the benefit' of all tenants in common and the purchase certificate issued in his favour will inure to the benefit of all others. The primary concern of this Court was to see whether the appellants have discharged the burden and proved that they were in exclusive possession of the property to the knowledge of others. The contents of Exts.A4, A13 and A14 and other evidence show that the appellants have discharged the burden. Therefore, this Court finds that the plea of ouster insofar as the plaint 8 schedule property in which the appellants are in possession must be sustained. This is more so when as regards plaint A schedule property, there is no challenge by the aggrieved party against the judgment and decree of the trial court. As an upshot of these discussions, this Court is of the considered view that the trial court erred egregiously in decreeing the suit insofar as the plaint 8 schedule property is concerned. Therefore, this Court isleftwithnootheralternative,buttointerferewiththejudgmentand decree of the trial court. Accordingly, the appeal is allowed. The judgmentanddecreeofthetrialcourI,insofarastheplaint8schedule property is concerned, in O.S No.79/1989 is set aside and the suit will RFA NO. 52 0F 2009 44 stand dismissed as against the plaint 8 schedule property. No order 2 0 2 5 : KER : 2 610 6 as to costs. Sd/- EaswA~s. JUDGE ¢FA ulo. 5c2 -, •L \i t+ } B` `r.fa`t=..a`, aa EBE= 5dr 5dr£.a g Bc} 8€ :*

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