SANKARANARAYANAN Vs. AYYAPPAN

JUDGEMENT

(1.) The plaintiff is the appellant. The suit is for partition of his 2/11 shares in the three items of properties mentioned in the plaint. The properties belonged to Thupran who died in the year 1121. His legal heirs under the Cochin Makkathayam Thiyya Act were his wife deceased Kurumba and children the plaintiff, defendants 1, 2, 3, 9 and deceased Cheeru. Cheeru's children are defendants 4 to 8. Kurumba died after the Hindu Succession Act. Defendants 10 and 11 are impleaded as alienees of the properties and defendants 13 to 20 are those residing with defendants 10 and 11. All the legal heirs of Thupran except the plaintiff and the 4th defendant have purported to assign the properties to defendants 10 and 11 as per a registered sale deed Ext. B1 dated 27-11-1952. This document recognises the title of the plaintiff and the 4th defendant to their respective shares in the suit properties and a provision is made to pay off these two cosharers who did not join in its execution. About ten years thereafter, defendants 10 and 11 have assigned another property to the 1st defendant as per Ext. B19 dated 25-7-1962. Part of the consideration for the sale deed Ext B19 is the amount fixed for payment to the plaintiff and the 4th defendant as per Ext. B1 and interest accrued upto the date of Ext. B19. The Ist defendant alienee himself is directed to pay off the plaintiff and the 4th defendant and in case the plaintiff claims a share in property itself there is a direction in Ext. B19 that the 1st defendant should convey 1/4th share in Ext. B19 property to the plaintiff. Defendants 10 and 11 in their written statement filed on 30-3-1970 in Para.8 has practically admitted the plaintiff's title to a share in the suit property which according to them should be satisfied as per the provision made in Ext. B19. In the additional written statement filed on 18-12-1971, the contesting defendants have raised a plea of adverse possession.

(2.) Both the courts below have dismissed the suit on the ground that the plaintiff's title to the suit-properties is barred by adverse possession of defendants 10 and 11.

(3.) Learned Counsel for the plaintiff - appellant Sri. K. P. Radhakrishna Menon challenges the correctness of the decision of the courts below that the plaintiff's title to the share claimed is lost by adverse possession of defendants 10 and 11. It is pointed out that even the document of assignment Ext. B1 recognises the title o/the plaintiff to a share in the properties and the parties to the document had without the consent of the plaintiff devised a method of paying him off for the value of his share. This is reinforced by the subsequent document Ext. B19 as per which the Ist defendant himself is directed to pay off the plaintiff or if he insists on a share in property itself, there is a direction that 1/4 share in Ext. B19 property should be conveyed to him. Both these documents recognise the plaintiff's title to the suit properties and without his being a party to either of these documents, the defendants have devised a method for payment of the value of his share to him or to satisfy his claim from other properties. Under these circumstances, whether it can be said that the plaintiff's title is lost by adverse possession of defendants 10 and H, is the only question arising for consideration in this Second Appeal.