NEELAKANTAN Vs. SANKARAN

JUDGEMENT

(1.) We are concerned in the second appeal with only the B schedule property, an extent of 10 cents and a half, being one half of a larger property.

(2.) Plaintiffs 1, 4 and 5 are the appellants; and the 21st defendant is the contesting first respondent. The appellants and the other plaintiffs are the children and grandchildren of a Mathevan; and Mathevan made a settlement of the whole property early in 1119 M.E. in favour of the plaintiffs claiming that the entire property (21 cents) belonged to him. A few months after, Mathevan's sister by name Chinna executed Ex. D10, a possessory mortgage, in favour of the first respondent in Karkadakam 1119 and put the mortgagee in possession of the entire property (21 cents) claiming that she was entitled to the property solely. Subsequently, Chinna filed O. S. No. 4 of 1120 for setting aside the settlement deed executed by Mathevan in favour of the plaintiffs. That litigation ultimately reached this Court; and this Court decided (Ex. P4 being the judgment) that Mathevan and Chinna were entitled to the 21 cents in moieties. Ex. P4 was on 29th November 1957; and thereafter, the plaintiffs filed the present suit for partition and separate possession of a half share in the property, the half share being the B schedule. The first respondent contended that the suit was barred by adverse possession, since it was brought more than 12 years after the was put in possession under Ex. D10. The Trial Court rejected this contention; but, on appeal, the lower appellate court agreed with the contention and dismissed the suit relying mainly on the decision of Velu Pillai J. of this Court in Konnan Sanku v. Parvathi Amma ( 1962 KLT 881 ). In the second appeal, this decision of the Subordinate Judge is being challenged. And a learned Judge of this Court, having felt that the decision in Konnan Sanku's case mentioned above required reconsideration, placed the second appeal before a Division Bench.

(3.) Velu Pillai J. has relied on the Full Bench decision of the Madras High Court in T. P. R. Palania Pillai v. Amjath Ibrahim Rowther ( AIR 1942 Mad. 623 ) and also on the Full Bench decision of the Cochin High Court in Matheis v. Kunhikkavu Varassyar (39 Cochin Law Reports 97). In the Madras decision, Leach C. J.. has laid down the propositions relevant for the case before us: and the propositions are correctly summarised in the headnote of the case, which reads: "Where a person who is in possession under a usufructuary mortgage granted by one of several cosharers remains in possession of the land and cultivates it for years, the requirements of continuity, publicity and extent for adverse possession are fully complied with. Consequently, where some coowners usufructuarily mortgage specific items of property held by the members of a Mohomedan family and the mortgagee enters into possession of the mortgaged items under his mortgage deed, a suit to recover the share therein by other members of the same family is barred by Art.144 at the end of twelve years of such possession, as the possession of the mortgagee becomes adverse against the other members from the moment of the entry into possession by the mortgagee and not from the date of ouster to their knowledge.