MARKOSE PETER Vs. CHACKO ITTYCHERIA

JUDGEMENT

(1.) Both the courts below found that the case of benami set up by Defendants 1 and 2, (who are the appellants in this second appeal) in regard to Ext. P4 sale deed relating to 5 cents of the suit property, and Ext. P5 gift deed in respect of the remaining 10 cents of the property, had not been substantiated. I am in agreement with the said finding, with which there is no scope for interference in second appeal. The result is that in respect of the 15 cents of suit property, Pathrose, the predecessor in interest of the plaintiff respondent had title.

(2.) The only other question is whether the plaintiff who derived title from Pathrose had shown possession within 12 years of the suit. The suit was instituted on 25-3-1963. Pathorse sold the 15 cents of land to which he was entitled to Pw. 3, the father of the plaintiff respondent, by Ex. P2 dated 4-10-1951. The contention of the appellants is that even long prior to the sale, Pathrose had been out of possession of the property, that the appellants were in possession in their own right, and therefore the rights of Pathrose have been barred by adverse possession and limitation. In appreciating this contention, it should be remembered that Ext. P5 gift deed was in respect of a total extent of 20 cents of property, the northern half of which was to be taken by Defendants 1 and 2, and the other, the southern half by Pathrose. The appellants and Pathrose, were thus clearly tenants in common. The property had not been demarcated or divided by metes and bounds into two equal halves. It is difficult, and indeed impossible, in the circumstances to find that Defendants 1 and 2 who occupied the undemarcated portions of the property conveyed under Ex. P5 were thereby in adverse possession against Pathrose the predecessor of the Plaintiff Respondent. No overt act of assertion of their own rights by Defendants 1 and 2 in respect of Pathrose's portion of the property was alleged, or attempted to be made out. Much the less was it shown that such acts of possession were exercised to the knowledge of Pathrose or his successors.

(3.) That the Trial Court found that Pathrose and Defendants 1 and 2 were in joint possession and that the appellate court found that the latter were not in constructive possession on behalf of Pathrose, does not really affect the question. It is also significant that the written statement of Defendants 1 and 2 stated that Pathrose lived in this property along with Defendants 1 and 2 till his death in 1957. The finding of the courts below that the plaintiff had title and possession was correct.