RIBERA Vs. KURIEN

JUDGEMENT

(1.) S. A. 595 of 1961 arising from O. S. 304 of 1953 is by the first defendant therein who is the assignee decree holder in O. S. 187 of 1121 and S. A. 871 of 1961 arising from O. S. 406 of 1953 is by defendants 2 and 3 therein, and they raise the question, whether two properties which originally belonged to one Ramacha Kurien are attachable in execution of the decree in O. S.187 of 1121.

(2.) The bare facts may be stated, first with reference to O. S. 304 of 1953. The decree in O. S. 187 of 1121 was obtained by the second defendant against Thomas, a son of Kurien, and the properties were attached as belonging to Thomas. Kurian had three more sons, Varghese, Mathen and Chacko. In the year 1086, he made a partition of his properties among his sons by Ext. III, by which the suit property was allotted to Varghese. The plaintiffs are the widow and children of Varghese. There is a provision in Ext. III, that Varghese should pay a sum of Rs. 148/- to Chacko within one year and that on default, the latter was to take possession of the suit property and enjoy the same. According to the plaintiffs, Varghese made payment and had been in possession of the property and after him the plaintiffs are in possession, and according to the first defendant Varghese did not pay Chacko, Chacko took over the property, and afterwards transferred it to Kurian in the year 1091 and Kurien sold it to Thomas in the year 1099 and his heirs defendants 3 to 9 are in possession.

(3.) Chacko's widow and children had sued the heirs of Kurien in O. S. 129 of 1110 with respect to the properties allotted to Chacko, the suit property being item 2 of B Schedule in that suit. Chacko's original title was upheld. To the attachment of the suit property, the claim preferred by the plaintiffs was dismissed and so they instituted O. S. 304 to set aside the order dismissing the claim. The two courts below have held, that the property belonged to Thomas; while the. Trial Court dismissed the suit on that ground, the appellate court held that the plaintiffs have established their title by adverse possession.