IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 RSA.No. 47 of 2010() -------------------- AS.32/1999 of SUB COURT, OTTAPPALAM OS.224/1996 of MUNI-MAGI.COURT,MANNARKAD .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- ABDULLA,S/O.KUNHAYAMMU,AGED 68 YEARS, MELATHIL HOUSE,VIYYAKURUSSI AMSOM AND DESOM, MANNARKKAD TALUK. BY ADV. SRI.SANTHEEP ANKARATH SMT.P.JAYALAKSHMI RESPONDENT/RESPONDENT/PLAINTIFF ----------------------------------- SURESH,S/O.NANIKUTTY AMMA,PALLIKKATTIL, ARAKURUSII AMSOM AND DESOM,MANNARKKAD TALUK. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.47 of 2010 --------------------------------------- Dated this 03rd day of March, 2010 JUDGMENT This appeal arises from judgment and decree of learned Sub Judge, Ottappalam in A.S.No.32 of 1999 confirming judgment and preliminary decree for partition passed by learned Munsiff Magistrate, Mannarkkad in O.S.No.224 of 1996. According to the respondent/plaintiff, plaint schedule properties were acquired by himself and appellant jointly as per Ext.A1, assignment deed dated 25-08-1994. On 11-10-1996 Ext.A2, notice demanding partition and separate possession was issued. Appellant contended that respondent has no title, interest or possession of the suit property, entire sale consideration for the acquisition was paid by him and that name of respondent happened to be included in Ext.A1, assignment deed as a result of fraud played by the respondent with assistance of the document writer. Appellant produced Exts.B1 series and B2, respectively for payment of the revenue for the suit property and a certificate issued by the village Officer concerned. The courts below were not impressed by the contention of the appellant or evidence produced by him. It is found from Ext.A1 that consideration flowed from appellant and respondent jointly and hence they are co-owners of the suit property. Accordingly, trial court granted partition which was confirmed by the first appellate court. That is under challenge in the second appeal raising by way of substantial questions of law whether the appreciation of R.S.A.No.47 of 2010 2 evidence done by the courts below is perverse and whether the finding entered by the courts below suffered from infirmity on account of such perverseness. 2. I have heard counsel on both sides. It is not disputed that Ext.A1 stands in the name of appellant and respondent and the recital regarding the consideration is that it flowed from the parties jointly. Hence in the absence of any contra indication in Ext.A1, by virtue of section 45 of the Transfer of Properties Act I must understand the acquisition as made by the appellant and respondent jointly and so far as there is no material to the contra. There is no contention that appellant is illiterate or had any defective vision. In such a situation, appellant cannot raise a plea of non est factum as held by this court in Mathu Vs. Cherchi (1990(1) KLT 416) and the Supreme court in Grasim Industries Ltd. & Another Vs. Agarwal Steel (2010 (1) SCC 83) There is no reliable evidence regarding alleged fraud allegedly committed by the respondent or the document writer as per which the name of respondent was incorporated in Ext.A1 as the appellant claims. Courts below on evidence and as supported by law found in favour of joint acquisition of the property by appellant and respondent. That finding is based on a proper appreciation of evidence on record and do not involve any substantial question of law for a decision by this court. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/