IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 RP.No. 893 of 2006() -------------------- AGAINST THE JUDGEMENT/ORDER IN SA.455/2002 Dated 01/08/2006 .................... REVIEW PETITIONER(S): PETITIONER/APPELLANT --------------------------------------------------------- SIVAN, S/O.SANKARAN, OLARIKKAL HOUSE, POOCHAPRA KARA, DEVARUPARA P.O., THODUPUZHA TALUK, IDUKKI DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS -------------------------- 1. GOWRI, W/O.PUSHPADHARAN, ARACKAL HOUSE, POOCHAPRA KARA, VELLIYAMATTOM VILLAGE, THODUPUZHA TALUK. 2. NALINI, W/O.PEETHAMBARAN, PADATHIL HOUSE, KARIPPLANGADU KARA, ARAKULAM VILLAGE, THODUPUZHA TALUK. 3. PAPPY, W/O.SANKARAN, OLIARACKAL HOUSE, POOCHAPPARA KARA, VELLIAMATTOM VILLAGE, THODUPUZHA TALUK. 4. SIVARAMAN, S/O.SANKARAN, OLIARACKAL HOUSE, POOCHAPPARA KARA, VELLIAMATTOM VILLAGE, THODUPUZHA TALUK. 5. GOPI, S/O.SANKARAN, OLIARACKAL HOUSE, POOCHAPPARA KARA, VELLIAMATTOM VILLAGE, THODUPUZHA TALUK. 6. RAJU, S/O.SANKARAN, OLIARACKAL HOUSE, POOCHAPPARA KARA, VELLIAMATTOM VILLAGE, THODUPUZHA TALUK. 7. PADMAKSHI, W/O.GOPALAN, EZHUTJUMMEL HOUSE, KOLAPRA KARA, VELLIYAMATTOM VILLAGE, THODUPUZHA TALUK. ADV. SRI.K.S.MADHUSOODANAN FOR R1 & 2 SRI.C.P.PEETHAMBARAN SMT.TISVY VINCENT SRI.ABRAHAM JOSEPH SRI.R.RAGHUNANDANAN SRI.VINOD RAVINDRANATH FOR R3,5 & 7 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... R.P.NO.893 OF 2006 in S.A.No.455 OF 2002 ............................................. Dated this the 14th day of December, 2009 O R D E R This review petition is preferred against the judgment of this Court in S.A.No.455/2002. The suit is one for partition which takes in four items of property. Item 1 belonged to Sankaran as a registered land and items 2 to 4 are unregistered lands. Sankaran died and a suit for partition was filed. Defendants 1 and 3 to 6 contended that item 1 is partible, but with respect to items 2 to 4, according to them, their father during his life time had handed over the same to defendants 3 and 4 and they are not partible. The first court found that item 1 is partible but repelled the contention with respect to other items and the Subordinate Judge found that all items are partible and it is against that decision, the second appeal was preferred. 2. I have considered that point in the light of Section 100 of the Civil Procedure Code wherein it has to be borne in mind that unless there is a substantial question of law, the court should not entertain the second appeal. I find that : 2 : R.P.NO.893 OF 2006 in S.A.No.455 OF 2002 since the contesting defendants themselves have raised a contention that the property belongs to the father and that the father had given to them, there was a burden cast upon them to establish that fact. There is no evidence tendered in that regard and therefore, when the origin of the property is through the father naturally it becomes partible unless the other contentions are established by tangible evidence. The learned Subordinate Judge rightly found that it is lacking and ordered partition. I do not find any misappreciation of evidence or misapplication of mind. 3. The Hon'ble Supreme court in the decision reported in Gurdev Kaur v. Kaki (AIR 2006 SC 1975) has cautioned that the second appellate court shall not act as a third trial court. It was also held that if there is concurrent findings of fact even erroneous, the second appellate court shall not ordinarily interfere with. Applying the dictum to the facts of this case, the Subordinate Judge has analysed the matter correctly and arrived at a decision and therefore, I find that there was no substantial question of law involved : 3 : R.P.NO.893 OF 2006 in S.A.No.455 OF 2002 and hence dismissed the appeal. I do not find any ground to deviate from the findings in this review petition and therefore the review petition lacks merit and it is dismissed. M.N. KRISHNAN, JUDGE cl : 4 : R.P.NO.893 OF 2006 in S.A.No.455 OF 2002