GEORGE C.S. Vs. MARIAMMA CHAMPAKASSERIL

JUDGEMENT

(1.) These two second appeals arise from the common judgment of District Court, Kottayam in A.S. 9/86 and A.S.15/86. The appeals were preferred against the judgments and decrees in two suits before Munsiff's Court Changanacherry, O.S. 381/83 and O.S. 287/83. Those suits were jointly tried by the Munsiffs Court and by a common judgment rendered on 13-9-1985 plaintiff in O.S. 381/83 was declared to be the owner of the property described in the plaint in that suit. The partition/deed No. 1228 dated 15-11-1982 of Thengana Sub Registrar's Office was set aside. Plaintiff was allowed to recover possession of the property from the defendants who were also permanently restrained from causing any damage or waste to the properly and the building therein. They were also permanently restrained from taking any income from the property. O.S. 287/83 was dismissed. The lower appellate court modified the judgment, in O.S. 381/83 and restricted the relief of declaration of title and possession to one-half of the plaint schedule property and the building situated therein. Regarding the remaining one-half of the property defendants were found to have title and possession. The partition deed entered into by defendants 1 to 5 was set aside. The decree in O.S. 287/83 was confirmed. Hence these two second appeals. S.A. 165/89 is filed by the plaintiff in O.S. 381/ 93. The other appeal is by the defendants in that suit.

(2.) Now the facts. O.S. 381/83 which is the subject matter of these two second appeals is a suit for partition. Plaint schedule property was purchased in the name of one Kesava Paniker in the year 1966. Plaint alleges that the sale deed was taken in the name of Kesava Panicker utilising plaintiff's funds and plaintiff had been in possession as and from the date of that document. In 1979 Kesava Panicker executed a sale deed in the names of plaintiff, his mother and brothers and sisters. Their names, according to the plaintiff were included in the document under certain peculiar circumstances and as suggested by Kesava Panicker. In spite of that document plaintiff had been in possession. A partition deed was entered into by defendants 1 to 5, viz the brothers and sisters of plaintiff by which the properties were divided among them. A portion of the property was set apart to the share of plaintiff also though he was not a signatory to that document. It was in these circumstances that plaintiff filed the suit for a declaration that he is the owner of the property and that defendants have no right over the properly and the building situated therein. He also wanted the partition deed to be set aside.

(3.) Defendants 1 to 5 resisted the suit and contended that the consideration paid for the sale in the name of Kesava Panicker represented amounts due to all of them and that was the reason why a transfer was since then made in the names of plaintiff, his brothers and sisters and their mother. At the time of sale by Kesava Panicker one of the sisters of plaintiff by name Moly had been given in marriage and her name was not included in the document. The allegation that plaintiff was in possession of the property from 1966 was denied. The partition deed was executed after setting apart the portion of the property where plaintiff has put up a small house towards his share. He did not co-operate in the registration of the document. They further contended that the building and the well in the property were constructed by utilising the funds of defendants 2 to 4. Additional defendants 6 and 7 adopted the contentions raised by defendants 1 to 5.