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2014 (8) TMI 1220 - SC - Indian LawsPartition of suit property - Whether the plaintiff No. 1 and defendant Nos. 10 to 17 are entitled for partition of the suit schedule properties as they have been excluded from the possession of the properties by ouster by the sons of deceased Valli namely, Kunhan and Ayyappan for more than 50 years from the date of her death? - whether they have lost their right by adverse possession of the defendant Nos. 1 to 9 by ouster and their claim is barred by limitation? - HELD THAT:- The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the doctrine of adverse possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognised by the doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one’s own rights over property is also capable of being called a manner of “dealing” with one’s property which results in extinguishing one’s title in property and vesting the same in the wrongdoer in possession of property and thus amounts to “transfer of immovable property” in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section.” The High Court held that the daughters of Valli alone would be entitled to the suit properties but the Trial Court has held on the basis of evidence on record that they were excluded from possession by their brothers for more than 50 years from the date of death of Valli. Hence, their rights, if any, are lost by adverse possession and by ouster and their claim is barred by limitation. In the absence of averments in the plaint regarding custom followed in the marriage of the daughters of Valli and that their marriage was not in Kudivaippu form therefore, can their rights be excluded upon the suit schedule properties of Valli as per customs prevalent in their community under the Hindu Law? - HELD THAT:- In the absence of evidence on record to show that they were not ousted from possession from the suit schedule properties and that they have been in joint possession of the same with their deceased brothers during their life time and thereafter with their legal representatives as the co- sharers, the finding of fact recorded by the Trial Court on this aspect of the case cannot be disputed with. The defendant Nos. 1 to 9 have stated that the daughters of deceased Valli were married in the Kudivaippu form. However, they have failed to prove the same. However, the Trial Court has recorded its finding on the contentious issue No. 4 in favour of the defendant Nos. 1 to 9 on the basis of undisputed facts and evidence on record, it has rightly held that the above defendants have perfected their title to the suit schedule properties by way of adverse possession by ouster of the plaintiff No. 1 and defendant Nos. 10 to 17 from the said properties, which finding of fact is accepted by us by recording our own reasons in this judgment - the daughters of Valli are excluded from their rights upon the suit schedule properties of Valli and are not entitled for the share as claimed by them in their suit. Whether the partition deed (Ex.-B1) in the year 1953 is binding between the deceased Kunhan and Ayyappan in view of the litigation between them as per documents (B-2 to B-4) in respect to the suit schedule properties of Valli? - HELD THAT:- This point is also required to be answered in favour of defendant Nos. 1 to 9 - There was litigation between the fathers of the defendant Nos. 1 to 9 in relation to the said partition, no doubt, the father of the defendant Nos. 8 and 9 failed in the aforesaid civil litigation as per the documentary evidence-Exs.-B2 to B4. Therefore, the same is binding on the father of defendant Nos. 8 and 9. Whether the plaintiff Nos. 2 to 4 are entitled for their share in the suit properties? - HELD THAT:- The defendant Nos. 1 to 9 placing reliance upon the purchase certificates Exs.-B5 and B6 have no relevance to the fact situation. Therefore, the plea urged by them in this regard is wholly untenable in law for the reason that they are neither cultivating tenants nor deemed tenants of the suit schedule properties as there is no evidence produced by them in this regard in the Original Suit. Therefore, the purchase certificates which were obtained by their deceased fathers from the Land Tribunal have no relevance to the facts of the case. Appeal allowed.
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