KARTHIYAYANI Vs. ULV KALLYANI

JUDGEMENT

(1.) Interesting questions of law were urged by counsel for the appellant before me in this second appeal, but after hearing counsel I do not think it is necessary to advert to them in detail, as the questions which are so urged before me are well settled so far as this court is concerned, and I see no reason to doubt the correctness of the view taken by this court in the earlier decisions and refer this matter to a Division Bench as apparently the counsel wants me to.

(2.) The suit is for partition. Plaint schedule property belonged to one Charu, Plaintiff and first defendant are daughters of Charu by his first wife, who is not alive. Defendants 2 to 6 are children of Charu by his second wife Kutty. The suit property is 1 acre 11 cents in extent. Out of this, 42 cents was put in possession of an usufructuary mortgagee by Charu during his lifetime under Ext. D11 of 1102. This was of the southern 42 cents. Charu died on 17-11-1117. The children by the second wife, namely defendants 2 to 6. claiming to be those entitled to the property on the death of Charu executed Ext. D13 mortgage on 16-12-1119. whereunder they directed the mortgagee to redeem Ext. D11 and out the mortgagee in possession of the rest of the property. Apparently nether the plaintiff nor the first defendant were associated in the execution of Ext. D13. Nor did the document purport to be on their behalf also. On the same day as that of Ext. D13. the mortgagee who took Ext. D13 released Ext. D11 mortgage under Ext. D15. Later defendants 2 to 6 are seen to have taken a lease from the mortgagee for the suit items and they are said to be in possession and enjoyment under the lease.

(3.) The claim of the plaintiff to succeed to 1/7th of the assets of Charu and therefore to 1/7th of the suit property succeeded in the Trial Court with regard to the 42 cents on the southern portion covered by Ext D11 mortgage. With regard to the rest the plea of adverse possession set up by defendants 2 to 6 was accepted by the court. An appeal was filed against this by both plaintiff as well as defendants 2 to 6. The appeal by the plaintiff was dismissed, while that by defendants 2 to 6 was allowed, thus holding that the suit was barred by adverse possession in respect of the entire 1 acre 11 cents. It is therefore that this appeal has been filed by the plaintiff.