Beefathummabi vs Ayshabi
2022 Latest Caselaw 11763 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MR. JUSTICE SATHISH NINAN
    WEDNESDAY, THE 21ST DAY OF DECEMBER 2022 / 30TH AGRAHAYANA, 1944
                             SA NO. 602 OF 2001
         AGAINST THE JUDGMENT IN OS 3/1996 OF MUNSIFF COURT, ANDROTT
                  AS 5/1999 OF DISTRICT COURT, LAKSHADWEEP
                                     -----
APPELLANTS/RESPONDENTS/PLAINTIFFS:

     1       BEEFATHUMMABI, D/O KADEEJABI, SHAIKINTE VEED PADIPURA,
             MECHERRY ANDORIT.

     2       SAYID MUHAMMED ASLAM, S/O BEEFATHUMMABI, OF -DO- -DO-

     3       SAYID ABDUL KHADAR, S/O BEEFATHUMMABI OF -DO- -DO-

     4       MOHAMMED RAHMATHULLA, S/O BEEFATHUMMABI OF -DO- -DO-

     5       MOHAMMED KHASIM, S/O BEEFATHUMMABI, OF -DO- -DO-

     6       AHAMED KHABEER, S/O BEEFATHUMMABI OF -DO -DO-

     7       ABOOBACKER, S/O BEEFATHUMMABI, OF -DO- -DO-

             BY ADVS.
             P.U.SHAILAJAN
             NIDHEESH T.P



RESPONDENTS/APPELLANTS/DEFENDANTS:

     1       AYSHABI, D/O KUNHIBI, SHAIKINTE VEED PADIPURA (PADANNA THE
             PUTHIYA PURA) MEECHERY, ANDTROTT.

     2       CHERIYAKOYA, S/O AYSHABI, OF -DO- -DO-

     3       BAMBATHIBI, D/O AYSHABI, OF -DO- -DO-

     4       MOHAMMED ALTHAF, AGED 9 YEARS, S/O BAMBATHIBI, OF -DO- -DO-
             (MINOR)

     5       NASEERA BEEGUM, AGED 9 YEARS, D/O BAMBATHIBI, OF -DO- -DO-
             (MINOR)
 SA NO. 602 OF 2001                  -2-


     6     THAJUNNISSABI, D/O AYSHABI OF -DO- -DO-

     7     SALMA, AGED 8 YEARS, D/O THAJUNISSABI, OF -DO- -DO- (MINOR)

     8     SALEENA, AGED 6 YEARS, D/O THAJUNNISSABI, OF -DO- -DO-
           (MINOR)

     9     MOHAMMED ABOOSALIH, S/O AYSHAMI, OF -DO- -DO-

    10     SHARAFUNNISSABI, D/O AYSHAMI, OF -DO- -DO-

    11     SHAREEFAMMABI, D/O AYSHABI, OF -DO- -DO-

    12     UNNUL FAZAL, D/O AYSHABI, OF -DO- -DO-

    13     SAYID SHAHUL HAMEED, S/O AYSHABI, OF -DO- -DO-

    14     FATHIMATH SUBRA, D/O AYSHABI, OF -DO- -DO-

    15     NAFEESATHUL ANTHARIYA, AGED 17 YEARS, D/O AYSHABI, OF -DO-
           -DO- (MINOR)

           BY ADVS.
           SRI.T.H.ABDUL AZEEZ
           SRI.P.K.AZAD
           SRI.T.B.HOOD
           SRI.K.P.MAJEED




     THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                       SATHISH NINAN, J.
           = = = = = = = = = = = = = = = = = =
                   S. A. No.602 of 2001
           = = = = = = = = = = = = = = = = = =
        Dated this the 21st day of December, 2022

                       J U D G M E N T

The suit for partition, though decreed by the trial

court, was dismissed in appeal. Hence the second appeal

by the plaintiffs.

2. The plaint schedule properties are situated in

Androth island. The plaintiffs are the successors of one

Kadeejabi and the defendants are the successors of one

Kunhibi. Kadeejabi and Kunhibi were sisters. They were

members of the Shaikinte Veed Padipura Tarwad. It was

the sub-tarwad of the tarwad called Shaikinte Veed. The

properties of the tarwad were divided and the plaint

schedule property became the asset of the sub-tarwad of

Kadeejabi and Kunhibi. Both Kadeejabi and Kunhibi are no

more. The plaintiffs seek for partition between

'thavazhies'.

3. The defendants contend that the suit is barred

by res judicata in view of the dismissal of the earlier S. A. No.602 of 2001

suit for partition (Ext.B1). Alternatively, it was

contended that the rights of the plaintiffs have been

lost by adverse possession and limitation.

4. The trial court found that the earlier

litigation related to the properties of the original

tarwad and not with regard to the partition between the

'thavazhies' of Kadeejabi and Kunhibi. It was also found

that the defendants have not proved ouster. Accordingly,

a preliminary decree for partition was passed. The first

appellate court held that the properties were already

divided between the parties. Accordingly, the suit was

dismissed.

5. Heard learned counsel on either side on the

following substantial questions of law:-

"(i) Is the finding of the first appellate court that the

matter in issue in the present suit was already determined in

the earlier litigation evidenced by Ext.B1, correct?

(ii) Is the finding of the first appellate court regarding

oral partition between Kadeejabi and Kunhibi based on S. A. No.602 of 2001

materials?

(iii) On the materials on record, was the first appellate

court right in upholding the plea of ouster?

6. It is not in dispute between the parties that

there had been a partition in the Shaikinte Veed

Padipura Tarwad of which Kadeejabi and Kunhibi, the

predecessors of the plaintiffs and defendants

respectively were members. In the said partition, the

Thavazhy of Kadeejabi and Kunhibi were allotted the

plaint schedule properties, is also not in dispute. The

plaintiffs seek for separation of the joint holding

between the 'upa-thavazhies' of Kadeejabi and Kunhibi.

The defendants contend that the suit is barred by virtue

of the dismissal of an earlier suit for partition in OS

232/1969 as affirmed in Ext.B2 judgment in AS 30/1970.

7. A reading of Exts.B1 and B2 reveals that, though

it was a suit for partition filed by the plaintiffs'

predecessor against Kunhibi and others, it was in

respect of alleged undivided properties of the original S. A. No.602 of 2001

tarwad. The court found that the properties of the

tarwad was already partitioned. From the said judgment

it is also clear that Kadeejabi and Kunhibi constituted

a Thavazhi. In the present case what is sought to be

partitioned is, the property obtained by the Thavazhi of

Kadeejabi and Kunhibi. Therefore, Ext.B1 judgment in OS

232/1969 cannot constitute res judicata for the present

claim. The trial court was right in holding so. The

first appellate court has proceeded as if the suit is

for partition of certain items of properties of the

original tarwad, remaining undivided. However, it is not

correct. Substantial question of law No.(i) is answered

accordingly.

8. The first appellate court has proceeded as if it

is the admitted case of the parties that there had been

an oral partition between Kadeejabi and Kunhibi. The

first appellate court in its judgment observed thus:-

"Since an oral partition between Kadeejabi and Kunhibi

is admitted by the plaintiffs themselves, it is for them to show S. A. No.602 of 2001

that this item of property had not been divided in the oral

partition."

9. The learned counsel for the appellant challenged

the said observations/finding of the first appellate

court that the plaintiffs have admitted that there was

an oral partition in the family. According to the

learned counsel, there is no such admission by the

plaintiffs. The learned counsel for the respondents were

unable to point out the admission, if any, with regard

to oral partition between Kadeejabi and Kunhibi. The

only admission that could be pointed out is the

exclusive residence of Kunhibi in the building situated

in the plaint schedule property, which even as stated by

the plaintiffs in the earlier proceedings, was for some

other reasons. Therefore, the finding of the first

appellate court that there was oral partition between

Kadeejabi and Kunhibi is without any materials. The said

finding is set aside. Substantial question of law No.(ii)

is answered accordingly.

S. A. No.602 of 2001

10. The defendants raised an alternate plea of

ouster. The trial court has excluded the residential

building in the plaint schedule property for partition.

The same was not challenged by the plaintiff. The trial

court found that Ext.B1 judgment in OS 232/1969 affirms

the joint interests of the Kadeejabi and Kunhibi. The

trial court noticed the evidence of PW2 to find that

Kadeejabi had been exercising rights over the property.

If at all the property was possessed by Kunhibi it was

because she was residing in the building in the plaint

schedule property. Such possession could only be taken

as for and on behalf of the co-owners. These aspects

were not taken note of by the first appellate court when

it upheld the claim of ouster by the defendants. The

defendants have not established a case of ouster. The

trial court was right in having rejected the plea.

Substantial question of law No.(iii) is answered

accordingly.

S. A. No.602 of 2001

11. Having found that the suit property, excluding

the residential building thereon is partible, the decree

and judgment of the first appellate court is liable to

be set aside and I do so.

Accordingly, the Second Appeal is allowed. The

decree and judgment of the first appellate court is set

aside and that of the trial court is restored.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge