MOHAMMAD KUNJU ABDUL KHADER Vs. K M USMANKUTTY

JUDGEMENT

(1.) This appeal is directed against the decree and judgment in A.S. No. 105 of 1987 of the District Court, Alleppey, which was filed against the decree and judgment in O.S. No. 413 of 1983 of the Munsiff's Court, Alleppey. The 1st defendant before the trial Court is the appellant and the plaintiff and 2nd defendant are the respondents. The 1st respondent/plaintiff filed the above suit for partition and recovery of possession. The plaintiff's case in brief is this : The plaint schedule property and the building standing thereon were purchased by one Sulekha Umma and her brother Azeez. Sulekha Umma passed away. Her legal representatives are her three children, Rehma Beevi, Latheefa Beevi and Abdu Rehman. Azeez has transferred all his rights in favour of the children of Sulekha Umma and thus the children of Sulekha Umma have become the absolute owners of the plaint schedule property. The plaintiff is the husband of Rehma Beevi. The 2nd defendant is the son of the plaintiff. Rehma Beevi died in 1957. Her right devolved on her legal heirs, the plaintiff and the 2nd defendant. The plaintiff is entitled to 1/4th share and the 2nd defendant is entitled to 3/4th share over 7/24 share due to Rehma Beevi. Rehma Beevi, Latheefa Beevi and their brother Abdu Rehiman executed a mortgage in the year 1956 in respect of the plaint schedule property in favour of Abdul Razak. Thereafter Latheefa Beevi and Abldu Rehman and Koya Kunju represented by his grandfather assigned their right over the plaint schedule property to one Kassim Bava by a registered document of 1964. Kassim Bava redeemed the mortgage and transferred the plaint schedule property in favour of the 1st defendant in this case. The 1st defendant thus claims absolute right and possession over the property. But actually he has no right over the shares of the plaintiff and 2nd defendant except as a mortgagee. The 2nd defendant then filed O.S. No. 46 of 1979 for partition and redemption. The plaintiff came to know about the redemption of mortgage by Kassim Bava and about the assignment of the property in favour of the 1st defendant only when he received a reply notice from the 1st defendant. As the 1st defendant was not amenable for partition and recovery of property the plaintiff has filed the above suit for partition.

(2.) The 1st defendant filed written statement contending that the suit is barred by limitation, that the plaintiff is not the husband of Rehma Beevi and the 2nd defendant is not the son born to the plaintiff through Rehma Beevi, that they are not the legal heirs of Rehma Beevi, that on 24-11-1956 Sulekha Beebi, Rehma Beevi and other sharers of the property mortgaged the property to one Abdu Razack, that subsequently Sulekha Beevi, Latheefa Beevi and others sold the property to one Kassim Bava in 1964, that Kassim Bava redeemed the mortgage and thereafter he had sold away the property to the 1st defendant, that the 1st defendant constructed a building spending Rs. 50,000/- and effected improvements in the property, that even if the plaintiff had any right, over the property, that has been lost by adverse possession and limitation and that the plaintiff is not entitled to any relief in the suit. The 2nd defendant had filed another suit O.S. No. 46 of 1979 for partition and recovery of possession. That was dismissed.

(3.) The trial Court after taking evidence in this case passed a preliminary decree for partition and recovery of the plaintiff's share after paying off the proportionate mortgage amount. Aggrieved by the said decree and judgment, the 1st defendant filed A.S. No. 105 of 1987, before the District Court, Alleppey. The learned District Judge dismissed the appeal confirming the decree and judgment of the trial Court. Aggrieved by the said decree and judgment the 1st defendant filed this second appeal.