KUNHIMOIDEENKUTTY Vs. KADEEJA UMMA

JUDGEMENT

(1.) KUNHIMOIDEENKUTTY , the 3rd respondent before the execution court is the revision petitioner herein. He along with his father-in-law and wife were respectively D3, D1 and D2 in the suit. The brother of D1 was the plaintiff. The suit was for partition of the properties scheduled in the plaint as item Nos.1 and 2. The plaintiff alleged that the properties which were sought to be partitioned were in fact acquired by himself, his brother the first defendant and one another; Ali. There was a partition among these three persons and the plaint schedule properties were set apart to the joint share of the plaintiff and the first defendant. The first defendant having enjoyed the properties by himself to the exclusion of the plaintiff and the plaintiff coming to know of an attempt by the first defendant to gift the said properties to his daughter and son-in-law (D2 & D3); approached the court.

(2.) BEFORE the trial court, D1 and D2 filed a joint written statement and D3 filed a separate written statement. D3 contended that item No.1 was gifted to him, by an oral gift, at the time of his marriage to D2; jointly by the plaintiff and D1. Item No.2 was said to be subsisting in a lease in the name of the 3rd defendant's father. All these claims were negatived by the trial court and confirmed in appeal by a Division Bench of this Court. The claim set up with respect to Item No.1 being an oral gift was negated since the acquisition of the said property by Ext.A1 was after the marriage of the 3rd defendant with the 2nd defendant. The tenancy in the name of 3rd defendant's father with respect to item No.2 was also found to be totally unsubstantiated by any material evidence. The trial court clearly entered a finding that the 3rd defendant did not have either title or possession. The preliminary decree of the trial court was confirmed in appeal by this Court. Subsequently, final decree was passed. The plaintiff sought for execution of the decree.

(3.) IT is not known as to how the 3rd respondent can raise a contention at this stage that he is in possession of the property. The learned counsel for the revision petitioner Smt.P.A.Sheeja relies on the observation in the judgment dated 11-02-2000 in A.S.No.60/1999, filed against the preliminary decree. She specifically relies on the last-but-one sentence in paragraph 6.