Omanakuttan vs Somarajan and Gowri

Thomas P. Joseph, J.—Petitioner in E.A. No. 137 of 2006 in E.P. No. 229 of 1994 in O.S. No. 183 of 1985 of the Munsiff''s court, Kayamkulam is the appellant. In that suit the learned Munsiff passed a preliminary decree for partition and separate possession of the half share claimed by the 1st respondent. The 2nd respondent/defendant challenged that preliminary decree in appeal and second appeal but successively lost. That was followed by a final decree. When the 1st respondent initiated execution proceeding appellant who is the son of the 2nd respondent came up with E.A. No. 137 of 2006. The executing court dismissed that application which the learned Second Additional District Judge, Mavelikkara confirmed in A.S. No. 16 of 2000. Hence this Second Appeal. The 1st respondent is the son of the late Kuttappan in his first wife. Appellant claimed to be the son of the said Kuttappan in the 2nd respondent. He claimed that during the year, 1973 and earlier, the said Kuttappan and the 2nd respondent were living together as husband and wife. The 2nd respondent had entrusted the money belonging to her with Kuttappan for the purchase of a property for the sub tarwad represented by her. With that money, the late Kuttappan purchased the suit property as per sale deed No. 2110 of 1973 for the benefit of the sub tarwad of the 2nd respondent. Appellant therefore has got right in the suit property. He contended that at any rate, title of the 1st respondent is lost by adverse possession and limitation.

The 2nd respondent, mother of the appellant (conveniently?) remained ex parte. The 1st respondent resisted E.A. No. 137 of 2006 contending that the appellant has no right, title, interest or possession of the decree schedule property.

The appellant examined P.Ws.1 to 4 in support of his contentions and proved Ext. C1, report of the Advocate Commissioner (P.W2.). The executing court was not impressed by the contentions raised and dismissed E.A. No. 137 of 2006 which the first appellate court has confirmed.

The learned counsel for the appellant has contended that since the decree schedule property was acquired by the late Kuttappan with the funds of the 2nd respondent, it is the property of the sub tarwad of the 2nd respondent and the appellant has right over it. A further contention is that the appellant has perfected title by adverse possession and limitation. The learned counsel for the appellant has submitted that the plea of adverse possession was not even objected by the 1st respondent.

So far as the first contention is concerned, what is available is only the interested version of the appellant as P.W.1. He did not produce any document to show that purchase made by the late Kuttappan was with the funds of the 2nd respondent and allegedly for the sub tarwad of the 2nd respondent. I must also notice that with the 2nd respondent contesting the suit, the trial court passed a preliminary decree which the first appellate court and this Court have confirmed. In the circumstances merely based on the version of the appellant, no finding could be made that the suit property was purchased with the funds of the 2nd respondent and hence is the sub tarwad property of the 2nd respondent. The contention raised by the appellant, to say the least, is frivolous.

The next contention is regarding adverse possession. The learned counsel has vehemently contended that the 1st respondent had not, in his objection to E.A. No. 137 of 2006 denied the allegation of adverse possession. But the learned counsel in fairness conceded that the 1st respondent has contended that appellant has no right, title, interest or possession of the decree schedule property. If that be so, I am not inclined to think that there should have been a further contention that the plea of adverse possession raised by the appellant is not correct. For, without possession, there could be no adverse possession.

As regards the alleged adverse possession what is available is the evidence of P.Ws. 1, 3 and 4. The trial court observed that P.W.1, 3 and 4 are witnesses ''hired'' by the appellant. P.W.3 in his cross-examination stated that he was not required by anybody to appear in the court and give evidence, he just came to the office of the Advocate on his own being aware that the appellant is in possession of the suit property and volunteered to give a proof affidavit. He further says that in the office of the Advocate for the appellant, he was asked to put in writing that he knew the decree schedule property from the year 1989 and he agreed for that. P.W.3 is a dutiful (the duty to give evidence in court) man, indeed!

So far as P.W.4 is concerned, he claimed that he does not even know the 1st respondent. But it came out that in the proof affidavit, he has referred to the claim being made by the 1st respondent (without even knowing him?) P.W4 stated that he is aged 34 years but in the proof affidavit his age is shown as 45 years. When he was confronted with that, he stated that his statement that he is aged 34 years is not true. It is evident that his proof affidavit was prepared without his junction. Thus, it is for valid reason that the executing court found that P.Ws. 3 and 4 are ''hired'' witnesses.

This is a case where the 1st respondent instituted the suit in year 1985, obtained a preliminary decree for partition which was confirmed by the first appellate court and this Court and after final decree was passed, in the course of execution proceeding appellant has come forward with a contention which I am tempted to describe as ''frivolous'', if not ''false''. On hearing the learned counsel and going through the judgment/order under challenge I do not find any substantial question of law involved in this appeal requiring decision by this Court.

Execution Second Appeal is dismissed.

All pending Interlocutory Applications will stand dismissed.