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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR FRIDAY, THE 24^TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946 RSA NO. 943 OF 2008 AGAINST THE JUDGMENT AND DECREE DATED 26.06.2008 IN AS NO.221 OF 2005 OF II ADDITIONAL DISTRICT COURT & SESSIONS COURT,PALAKKAD ARISING OUT OF THE JUDGMENT AND DECREE DATED 20.07.2005 IN OS NO.500 OF 2003 OF ADDITIONAL MUNSIFF COURT, PALAKKAD APPELLANTS/APPELLANTS/DEFENDANTS:

1 A.SIVALINGAPPA GOWDER @ SIVARAJ GOWDER, [DIED LRs IMPLEADED]

S/O.ANANTHARAMA GOWDER,KUNNATHURMEDU, KUNNANUR, AMSOM, PALAKKAD.

2 ANANTHARAMAN RAVI,[DIED LRs IMPLEADED] S/O.A.SIVALINGAPPA GOWDER @ SIVARAJ GOWDER, -DO- -DO-

ADDL.3 SHAKILA.B AGED 51 YEARS, W/O.LATE ANANTHARAMAN @ RAVI, NO.4,ALAPHA NAGAR,KOVAI PUDUR, COIMBATORE-641 042.

ADDL.4 NAMRUTA.A AGED 24 YEARS, D/O.LATE ANANTHARAMAN @ RAVI, NO.4,ALAPHA NAGAR,KOVAI PUDUR, COIMBATORE-641 042.

ADDL.5 VIDHYANANDHI.M AGED 48 YEARS, W/O.LATE ANANDARAJ, NO.III, JAMIYA NAGAR,BHARATHI NAGAR EXTN., KOVAI PUDUR,COIMBATORE-641 042.

ADDL.6 S.A.SABARI KRISHNA AGED 21 YEARS,S/O.LATE ANANDARAJ, NO.III, JAMIYA NAGAR, BHARATHI NAGAR EXTN., KOVAI PUDUR, COIMBATORE-641 042.

ADDL.7 S.A.SMRITI GOWRI AGED 18 YEARS, D/O.LATE ANANDARAJ, NO.III, JAMIYA NAGAR,BHARATHI NAGAR EXTN., KOVAI PUDUR,COIMBATORE-641 042.

(LEGAL REPRESENTATIVES OF DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDL.A3 TO A7 AND LEGAL REPRESENTATIVES OF DECEASED SECOND APPELLANT ARE IMPLEADED AS ADDL.A3 AND A4 AS PER THE ORDER DATED 11.10.2022 IN IA.1/2022.)

BY ADVS.

SAJAN VARGHEESE K.

LIJU. M.P RESPONDENTS/RESPONDENTS/PLAINTIFFS:

1 N.A.ANIDAS, S/O.APPUKKUTTAN VALIYAVEETTIL, KUNNATHURMEDU, KANNANUR AMSOM, PALAKKAD.

2 NA AJIDAS S/O.APPUKKUTTAN VALIYAVEETIL KUNNATHURMEDU, KUNNANUR AMSOM, PALAKKAD.

BY ADVS.

SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN - R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.4.2024, THE COURT ON 24.05.2024 DELIVERED THE FOLLOWING:

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C.PRATHEEP KUMAR, J.

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R.S.A.943 of 2008 -----------------------------

Dated : 24^th May 2024

JUDGMENT

1. This Second Appeal has been preferred under Section 100 r/w Order XLII Rule 1 & 2 of CPC by the appellants in A.S.221/2005 on the file of the District Court, Palakkad, who are the defendants in O.S.500/2003 on the file of the Munsiff's Court, Palakkad, against the judgment dated 26.6.2008 dismissing the appeal. For the purpose of convenience the parties are hereafter referred as per their rank before the trial court.

2. The brief facts necessary for the disposal of this appeal are the following:

The plaint schedule property consisting of ½ share over 98 cents of landed property and the residential building scheduled in the plaint originally belonged to late Anandarama Gowder. He had three sons, Devaraja Gowder, Subbayya Gowder and Sivalingappa Gowder, who is the 1^st defendant in the suit. The 2^nd defendant is the son of the 1^st defendant. In the family partition, the above 98 cents and the building therein was jointly allotted to Devaraja Gowder and Subbayya Gowder. One half undivided right of Devaraja Gowder from the above 98 cents and building was purchased by the plaintiffs 1 and 2 as per Ext.A1 sale deed No.3406/2001, which is the plaint schedule property. In one portion of the building the defendants have been residing with the permission of Devaraja Gowder. After purchasing the share of Devaraja Gowder as per Ext.A1 sale deed, the plaintiffs filed the suit for mandatory injunction for vacating the defendants from the schedule property and the building therein. The defendants would admit that Devaraja Gowder and Subbayya Gowder are the co- owners of the 98 cents of property scheduled in the plaint. However, according to them, after the family partition, the 1^st defendant exchanged his house situated at Kunnathurmedu to Devaraja Gowder with the share of Devaraja Gowder in the above 98 cents and started residence in the building therein. Therefore, the defendants would contend that they are residing in the buildi