REMANI Vs. APPU

JUDGEMENT

(1.) The 2nd defendant in OS No.1501/2006 on the files of the III Additional Munsiff's Court, Ernakulam, a suit for partition, has come up with the present appeal against the concurrent findings by the trial court as well as the first appellate court, on the ground that both courts went wrong in appreciating the facts as well as the law involved in the case in a perverse manner.

(2.) The brief facts necessary for disposal of the appeal are as follows:

(3.) Plaint schedule property consists of A schedule of Ext.A1 partition deed of 1114 ME. Item No.1 consists of the property known as kambalam, with well defined four boundaries in survey No.332/3 of Amballoor village. Item no.2 of the plaint schedule, which forms part of A schedule consists of 8 1/2 para, is a paddy land. The plaintiffs who are the legal heirs of the deceased Kunjiyamma were allotted to C schedule to Ext.A1. Smt.Karthiayaniyamma died on 10/3/1960. The suit was filed in the year 2006, claiming partition of the share held by Karthiayaniyamma in Ext.A1 document. The defendants entered and contested the suit. The 1st defendant is the wife of late Krishnankutty, the son of late Karthiayaniyamma. According to the 1st defendant, the property in question devolved absolutely in favour of Karthiayaniyamma and her husband and that the plaintiffs have no right title over the plaint A schedule property. The parties intended to divide the property, and A schedule being in exclusive possession of Karthiayaniyamma and Krishnankutty, the daughters of Karthiayaniyamma are not entitled to claim the right over the share of Karthiayaniyamma by inheritance. It is further contended that on 15/6/1960, the son of Karthiayaniyamma executed a "?nadappupanayadharam' in favour of Narayana Pilla, who is the father of the plaintiffs 1 to 3 and Ambujakshan and the delivery of the possession was also given to Narayana Pilla. The mortgage was not redeemed and thereafter, the 1st defendant purchased the right title and interest over the property when Narayana Pilla sold the entire extent of the property to Ammukkutty Amma, the 1st defendant and, therefore, the 1st defendant was in exclusive possession of the property, hostile to that of the plaintiffs and other defendants and, therefore, there is a clear case of ouster made out. As regards item no.2 of the plaint schedule property, it was contended that by Ext.B7, Karthiayaniyamma and Krishnankutty mortgaged the property in favour of third parties by a registered document. On 23/6/1966, the amount outstanding under the mortgage was repaid and it was redeemed. Ext.B7 would show that Karthiayaniyamma was divested of the title over the property even before her death, that is on 10/3/1960, and that after redemption of the mortgage, the property is in exclusive possession of the 1st defendant. Therefore, the claim for partition on behalf of the plaintiffs is unsustainable. On behalf of the plaintiffs, Ext.A1 alone was produced and PW1 was examined. On behalf of the defendants, Exts.B1 to B16 documents were produced. Ext.X1 series were marked as third party exhibits. The trial court, on consideration of the material evidence on record, framed the following issues: