The need for positive evidence of hostile animus to constitute ouster in cases of adverse possession limitation.

Bhat, J.

These appeals are directed against the decree and judgment passed by the Subordinate Judge, Kasaragod in O.S.60 of 1977.

2. Plaint A schedule consists of 16 items of immovable properties, plaint B schedule

comprises two items of immovable proper ties and plaint C schedule comprises three movables, namely, a jeep, water pump set and motor cycle. Plaintiffs and defendants are admittedly members of a Namboodiri Illam, being descendants of one Keshavan Namboodiri. Second plaintiff is the wife of and plaintiffs 3 to 8 are children of first plaintiff. Seventh defendant is the wife of and defendants 3 to 5 are the children of first defendant. Ninth defendant is the wife of third defendant. Eighth defendant is the wife of and sixth defendant is the daughter of second respondent. First plaintiff and defendants 1 and 2 are the children of Keshavan Namboodiri. Plaintiffs have 8/17 shares in the Illam assets, if otherwise they are entitled to a share. Plaintiffs filed the suit for partition claiming separation of their share with past profits for three years and future profits. First defendant filed a written statement and defendants 3 to 5 and 7 to 9 filed a joint written statement, raising more or less similar contentions, which can be grouped under the following heads:

(i) The rights of the plaintiffs, if any, in the Illam properties are barred by adverse possession limitation.

(ii) Item 2 of plaint B schedule is a self-acquisition of first defendant and is not an asset of the Illam.

(iii) Several other items of properties were in the possession of tenants and either the tenants or their assignees have obtained purchase certificates from the Land Tribunals concerned on the basis of T forms consented to by the Illam Karanavan, namely, first defendant.

(iv) Movables described in plaint C schedule do not belong to the Illam, but to the third defendant.

(v) The rate of profits claimed is excessive.

In regard to some of the disputed tenancies, the lower court made reference to the Land Tribunals which on the basis of the previous J' form orders and purchase certificates upheld the claims of tenancies in regard to item 9 and portions of items 1 and 2. In regard to some of the other tenancies no reference had been made to the Land Tribunals. Item 9 and portions of items 1 and 2 form part of properties described in schedule Y of the written statement of defendants 3 to 5 and 7 to 9. Parties conceded before the lower court that items 8 and 11 of A schedule are not partible. Accordingly the lower court held that other items of immovable properties are available for partition. The lower court also held that the C schedule movable properties are available for partition. The plea of adverse possession limitation was over-ruled. Accordingly preliminary decree was passed for partition. Plaintiffs, first defendant and defendants 3 to 5 and 7 to 9 are aggrieved by the various findings and decree.

3. According to the contesting defendants, first plaintiff left the Illam about thirty years prior to the suit and plaintiffs never cared to come back to the Illam nor attempted to participate in the income from the Illam properties, that all along the contesting defendants have been in exclusive possession of the properties in direct possession and enjoying the income and collecting rent in regard to tenanted properties and, therefore, plaintiffs have been ousted and their rights are barred by adverse possession limitation.

4. Our attention is invited to the decisions of Division Bench of this Court in Sooppi v. Moosa (1969 KLT 121) Paru v. Chiruthai (1985 KLT 563), Sainaba Umma v. Moideenkutty (1987 (2) KLT 59) and Full Bench decision in Kunjamma Cicily v. Kasim Beew (AIR 1969 Ker. 293) and decision of the Supreme Court in P. Lakshmi Reddy v. L Lakshmi Reddy (AIR 1957 SC 314). Even though an attempt is made on the basis of the decision in Peru's case (1985 KLT 563) to strike a different note in reasoning, we find that the consistent view taken by t