KARIYILAN CHERIYA, PUNNAKKALTHARA Vs. JOSELINE

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree passed in O.S.No.92 of 1996 on the files of Additional Sub Judge, Kochi. The appellants are defendant Nos. 6 and 7 in the above Original Suit. The suit was filed by the respondents 1 to 11 herein for a decree of partition and separate possession of the plaintiffs' = share in the plaint schedule property and also for a declaration that the order and patta granted in SMP No.143 of 1983 of the Deputy Collector, Land Tribunal of Poonithura will not bind the = share of the plaintiff in the plaint schedule property. The plaintiffs and defendant Nos.1 to 5 are the successors of one Mariam. The said Mariam had six children. ie. five sons and one daughter. Xavier, Antony, Joseph, Francis, and Kasper are the sons and Sr.Treasa is the only daughter. All the sons except Kasper died; but subsequently, after the institution of the suit Kasper also died and respondents 17 to 19 herein are the legal heirs of the deceased Kasper. Plaintiffs 1 to 3 are the children of deceased Antony. The only son of deceased Joseph died intestate. Plaintiffs 4 to 7 are the legal heirs of deceased Francis. Defendants 2 to 4 succeeded late Sri.Xavier. Sr.Treasa being ordained as nun is not entitled to any right in the property. Parties being christians, are governed by Indian Succession Act. According to the plaintiffs, they are entitled to = share in the plaint schedule property having an extent of 34 cents. Hence plaintiffs prayed for granting a decree declaring their right to = share in the plaint schedule property.

(2.) THE 1st defendant filed written statement contending inter alia that the suit itself is not maintainable. According to him the plaint schedule property is not partible. The plaintiffs have filed OS No.58 of 1993 before the Sub court, Kochi and obtained preliminary decree for partition. Against the decree appeal is pending before the Honourable High Court as A.S.380/1996. Hence the present suit for partition is hit by rule of resjudicata. There is no collusion between 1st defendant and defendants 6 and 7. The 5th defendant filed a written statement adopting the contentions of the 1st defendant. The defendant Nos. 6 and 7 who are the appellants herein filed separate written statement contending inter alia that the suit is not maintainable as the plaint schedule property is not partible. According to them neither the plaintiff nor defendants 1 to 5 have any right or title over the property. Defendants 6 and 7 had obtained purchase certificate dated 22/08/1986 as per S.M.P.143 of 1983 of Land Tribunal, Ernakulam. Defendants 6 and 7 have been in possession of the property as per varam arrangement under the 1st defendant. The status of the varamdar was recognised by the Land Reforms Act under Section 260 and as per suo motu proceedings they obtained absolute title and possession over the plaint schedule property. The property has been in their possession and earlier in their predecessors' possession, since the last 40 years. So if the plaintiffs had any right over the property that right had been lost by adverse possession and acquiescence also. According to them nobody other than 1st defendant had any right over the property. The plaint item was excluded in O.S.58 of 1993. Defendants 6 and 7 were not impleaded in O.A.1173 of 1973. Therefore, the purchase certificate issued in O.A.1173 of 1973 is not binding on defendant Nos. 6 and 7. There is no collusion nor fraud in the S.M.proceedings by which purchase certificate had been issued in favour of defendants 6 and 7. Hence they prayed for dismissing the suit on a finding that the plaint schedule property is not partible.

(3.) IN evidence, one of the plaintiff was examined as PW1 and Exts. A1 to A5 were marked for the plaintiffs. 7th defendant was examined as DW1 and Exts. B1 to B6 were marked. In view of the rival contentions, the court below had framed four issues. Going by the issues I find that in view of the rival contentions, the issues are framed properly. In view of the rival contentions, the question to be considered is whether there is any illegality or impropriety in any of the findings in the impugned judgment or perversity in the appreciation of evidence from which those findings have been arrived at. Put it differently, whether the findings arrived at by the court below can be justified.