KUNHUNNI Vs. KESAVAN NARNBOODIRI

JUDGEMENT

(1.) THESE appeals are directed against the decree and judgment passed by the Subordinate Judge, Kasaragod in O. S. 60 of 1977.

(2.) PLAINT A schedule consists of 16 items of immovable properties, plaint B schedule comprises two items of immovable proper ties and plaint C schedule comprises three movables, namely, a jeep, water pump set and motor cycle. PLAINTiffs and defendants are admittedly members of a Namboodiri Illam, being descendants of one Keshavan Namboodiri. Second plaintiff is the wife of and plaintiffs 3 to 8 are children of first plaintiff. Seventh defendant is the wife of and defendants 3 to 5 are the children of first defendant. Ninth defendant is the wife of third defendant. Eighth defendant is the wife of and sixth defendant is the daughter of second respondent. First plaintiff and defendants 1 and 2 are the children of Keshavan Namboodiri. PLAINTiffs have 8/17 shares in the Illam assets, if otherwise they are entitled to a share. PLAINTiffs filed the suit for partition claiming separation of their share with past profits for three years and future profits. First defendant filed a written statement and defendants 3 to 5 and 7 to 9 filed a joint written statement, raising more or less similar contentions, which can be grouped under the following heads: (i) The rights of the plaintiffs, if any, in the Illam properties are barred by adverse possession limitation. (ii) Item 2 of plaint B schedule is a self-acquisition of first defendant and is not an asset of the Illam. (iii) Several other items of properties were in the possession of tenants and either the tenants or their assignees have obtained purchase certificates from the Land Tribunals concerned on the basis of T forms consented to by the Illam Karanavan, namely, first defendant. (iv) Movables described in plaint C schedule do not belong to the Illam, but to the third defendant. (v) The rate of profits claimed is excessive. In regard to some of the disputed tenancies, the lower court made reference to the Land Tribunals which on the basis of the previous j' form orders and purchase certificates upheld the claims of tenancies in regard to item 9 and portions of items 1 and 2. In regard to some of the other tenancies no reference had been made to the Land Tribunals. Item 9 and portions of items 1 and 2 form part of properties described in schedule Y of the written statement of defendants 3 to 5 and 7 to 9. Parties conceded before the lower court that items 8 and 11 of A schedule are not partible. Accordingly the lower court held that other items of immovable properties are available for partition. The lower court also held that the C schedule movable properties are available for partition. The plea of adverse possession limitation was over-ruled. Accordingly preliminary decree was passed for partition. PLAINTiffs, first defendant and defendants 3 to 5 and 7 to 9 are aggrieved by the various findings and decree.

(3.) PLAINTIFFS specifically claimed past profits for a period of three years on the basis that profits had been paid till then. This is rebutted in the written statements. Plaintiff was not examined. Defendants 1 and 3 were examined as D. Ws. land 2 who asserted that for nearly thirty years plaintiffs had never come to the Illom and had never participated in the income. Evidently first plaintiff left the Illam in his you thin search of other avenues of employment and settled down at a place within the same district and raised his own family. Because he was able to find other avenues of earning income he did not bother to trouble the co-owners residing in the illam. There is no 'evidence that plaintiffs ever demanded share of income and that was refused by the contesting defendants. There is nothing to indicate that the contesting defendants, apart from merely collecting income from the property and spending the same, ever attempted to exhibit a hostile animus. Though non-participation in the income for fairly a long period is evident in this case, there is no other circumstance to support the possibility of an inference being drawn that there has been ouster. Mere non-participation by itself, in the absence of any other circumstance, may not be sufficient to enable the court to hold that there is ouster. In these circumstances, we agree with the trial court that the plaintiff's rights in the Illam properties are not barred by adverse possession of limitation.