KUNJU MOHAMMED Vs. MUHAMMED KOCHUNAINA

JUDGEMENT

(1.) These second appeals by the same person, the 1st defendant in O.S. No. 685 of 1121 and the 11th defendant in O.S. No. 424 of 1121, both of the Vaikom Munsiff's Court, are against the preliminary decrees for partition which the courts below have concurred, in passing against him in respect of, so far as we are now concerned, the same property, described as items 1 and 2 in the plaint in the latter suit and as items 1, 2 and 3 in the former. The plaintiff in O.S No. 424 (who is the 2nd defendant in O.S. No. 685) has been given a 13/48th share, while the three plaintiffs in O.S. No. 685 (who are defendants 6, 7 and 8 in O.S. No. 424) have been given a half share for themselves and defendants 4 and 5.

(2.) Although the two suits were tried together I prefer to deal with them one by one. I shall first consider O.S. No. 424 in which suit the evidence was recorded. The appeal therefrom is S.A. No. 549 of 1962.

(3.) In this suit, both sides claim under one Makkar whom, for the purposes of the suit, they are content to regard as the sole owner of the property, the fact that he was, in truth, only a purchaser from a coowner being, for those purposes, a matter of no consequence. Makkar died in 1098 M. E. (1922-23 A.D.) leaving as his heirs, his son, the plaintiff, then an infant if born at all, his widow, Asya Umma, and his mother, Sara Umma. (The 11th defendant, namely, the appellant, disputed the plaintiff's paternity and contended that he was Asya Umma's son not by Makkar but by a second husband. But this contention is no longer available, the concurrent findings of the courts below being that the plaintiff is the son of Makkar). Makkar's widow and mother got into possession on Makkar's death and by Ex. XVI dated 12 12 1101 (27 7 1926) they and Makkar's, brother, Mytho, claiming to be in possession as heirs of Makkar, (Mytho's claim being apparently on the bash that the plaintiff was not Makkar's son, for. if Makkar had left a son, Mytho would not be an heir) sold the property to the 11th defendant and put him in possession. This possession of the 11th defendant was disturbed by one Ali, the 1st defendant herein, and by one Kunjachi and her son Kasim, (the latter two now represented by defendants 6 to 8, the plaintiffs in O. S. No. 685, and by defendants 23 and 24, defendants 4 and 5 in O. S. No. 685), descendants of one Kochu Vava to whom the property at one time belonged. This dispute led to proceedings under S.128 of the Travancore Criminal Procedure Code (S.145 of the Indian Code) and, in those proceedings, the property was attached and put in the hands of a receiver on 5-3-1103 (21 10 1927). Those proceedings terminated on 5-6-1104 (17-1-1929) in favour of AIi, Kunjachi and Kasim see the order Ex. III Ali being found to be in possession of a portion of item I, and Kunjachi and Kasim of the remaining portion of that item and of the whole of item 2. These persons got possession of their respective portions from the receiver on 29 3 1105 (14 11 1929), and, soon thereafter, the 11th defendant brought a suit, O. S. No. 678 of 1105, for a declaration of his title, and of his possession prior to the attachment by the criminal court, and for recovery of possession from the hands of Ali and the heirs of Kunjachi (Kunjachi having died meanwhile) inclusive of the present defendants 6, 7 and 8 (Both the suit and the proceedings under S.128 of the Travancore Criminal Procedure Code included properties other than the property now in suit, but with that we are not concerned). The suit was dismissed by the first court but was decreed in appeal by the High Court of Travancore the decision is reported in Kunju Mohamed v. Kunju Ali (1945 TLR. 908). In execution of this decree, the 11th defendant obtained possession of item 1 of the suit property on 28-5-1121 (11 1 1946) and of item 2 on 8 6 1121 (21-1-1946). Three weeks later, on 1-7-1121 (12-2-1946) the plaintiff brought the present suit for partition and separate possession of his share as one of Makkar's Weirs. He was met with the plea of limitation among other pleas. This plea was negatived by both the courts below, the first court on the obviously mistaken ground that the suit was brought within 12 years of the plaintiff attaining majority, and the second on the ground that the 11th defendant was not entitled to tack on the possession of the receiver in the criminal proceedings and that he had not completed 12 years of adverse possession.