IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 RSA.No. 847 of 2009() --------------------- AS.345/2003 of SUB COURT,NEYYATTINKARA OS.627/2002 of II ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 & 3 -------------------------------------------------- 1.MADHAVAN NAIR, S/O G.KESAVAN NAIR VALIYAPURAKKAL PUTHEN VEEDU KANCHAMPAZHINJI DESOM THIRUPURAM VILLAGE NEYYATTINKARA TALUK 2. SATHEESH KUMARI W/O MADHAVAN NAIR VALIYAPURAKKAL PUTHENVEEDU KANCHAMPAZHINJI DESOM THIRUPURAM VILLAGE NEYYATTINKARA TALUK BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/ RESPONDEONTS/PLAINTIFFS 1 &2 & 2ND DEFENDANT ----------------------------------------------------------------------------------------------------- 1.PUSHKARAN S/O KESAVAN NAIR MANVILA VEEDU, KOLIYACODE DESOM KOLIYACODE VILLAGE, NEDUMANGAD TALUK THIRUVANANTHAPURAM DISTRICT FROM VALIYAPURAKKAL PUTHENVEEDU KANCHAMPAZHINJI DESOM, THIRUPURAM VILLAGE NEYYATTINKARA TALUK 2. NALINI D/O KUNJU LEKSHMI KALIVILAKATHU VEEDU VLAVUNADA, KOTTUKAL DESOM NEYYATTINKARA TALUK FROM VALIYAPURAKKAL PUTHEN VEEDU POOVAR P.O, KANCHAMPAZHINJI DESOM THIRUPURAM VILLAGE, NEYYATTINKARA TALUK 3. SADASIVAN S/O KESAVAN NAIR PAROTTUKONAM PUTHENVEEDU ERACHIYAM P.O,ANAD DESOM ANAD VILLAGE, NEDUMANGAD TALUK FROM VALIYAPURAKKAL PUTHEN VEEDU KANCHAMPAZHINJI DESOM, THIRUPURAM VILLAGE NEYYATTINKARA TALUK ( THE ANEM OF R3 IS DELETED AS PER ORDER IN I.A. NO.1845/2009 DATED 12.8.2009) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO.1845/2009 IN R.S.A. NO. 847 OF 2009 ALLOWED ORDER IN I.A. NO.1844/2009 IN R.S.A. NO. 847 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 12.8.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.847 of 2009 ---------------------------------------- Dated this the 12th day of August, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S.No. 345/2003 on the file of the Sub court, Neyyattinkara which arises from the judgment and decree in O.S. No.627/2002 on the file of the Additional Munsiff's Court-II, Neyyattinkara. The suit for partition was decreed by the trial court and a preliminary decree was passed as follows: (i) Plaint Schedule property shall be divided into four equal shares and the plaintiffs shall be jointly allotted with half share . (ii) The 1st defendant and additional 3rd defendant shall be allotted with jointly the half share on payment of requisite court fee, if not already paid. (iii) The house, latrine and bathroom situated in the property shall be allotted to the share of 1st defendant and additional 3rd defendant after valuing them. (iv) The present possession of the property to the extent of respective shares shall not be disturbed as far as possible, at the time of actual division at the final decree stage. (v) The parties shall suffer their respective costs of the suit (vi) The parties who have paid court fee for allotment of shares shall be at liberty to apply for passing of a final decree by issuance of commission or otherwise. The said preliminary decree was confirmed in appeal by the lower appellate court. Hence the Second Appeal. The 1st defendant and additional 3rd defendant in the suit are the appellants herein. Additional 3rd defendant is the wife of the 1st defendant. R.S.A. No. 847 of 2009 -2- 2. The plaintiffs and defendants 1 and 2 are the children of one Kesavan Nair and Kunjulekshmi. The right over the plaint schedule property was released by the said Kesavan Nair in 1975 in favour of his wife Kunjulekshmi who died in 1998. The property thus devolved upon the plaintiffs and defendants 1 and 2. They have got equal right over the property and the building therein. The 2nd defendant has assigned his right over the property to the 1st defendant in 1991. The plaintiffs do not want to continue with the joint possession and enjoyment of the property. However their demand for partition was not accepted by the 1st defendant. Hence the suit. 3. The 2nd defendant was set exparte. 4. The 1st defendant contended interalia that the description of the property is not correct , that it lies as two separate plots, that he is in possession and enjoyment of 5 1/8 Cents of property situated on the eastern side and that the plot situated on the western side is in the possession and enjoyment of the plaintiffs. According to him he and his wife is residing in the house situated in the share allotted to him. 5. The main contention raised by the 1st defendant is that the house situated in the plaint schedule property belongs to him and his wife and alternatively pleaded for allotment of share with the house occupied by him. Exts C1 and C2 are the Commissioner's report and plan. The trial court held that Exts C1 and C2 submitted by the Advocate Commissioner, would go to show that the house seen in the property is not a new building R.S.A. No. 847 of 2009 -3- and that there is no evidence to show that the structure now situated in the property was constructed by the 1st defendant using his own funds. Since the house is occupied by the 1st defendant and his wife and there is no satisfactory evidence to prove that the house was constructed by using his own funds, the trial court rightly held that the house is also available for partition. The learned Munsiff also opined that it is just and necessary to allot the house, latrine and bath room to the share of1st defendant and additional 3rd defendant after valuing those structures. On the basis of the said finding the preliminary decree was passed by the trial court. The contention of the contesting defendants that the right of the plaintiffs, if any,is lost by adverse possession, limitation and ouster, is also negatived by the trial court. . 6. Aggrieved by the trial court's judgment and decree the contesting defendants filed A.S. 235/2003 before the Sub court, Neyyattinkara. It is submitted before the lower appellate court that the house is constructed by the 1st defendant and therefore the finding of the trial court that the building is available for partition may be set aside. The lower appellate court on evidence found that the building is originally belonged to Kunju Lekshmi and the 1st defendant is only a co-owner. The lower appellate court , agreed with the findings of the trial court, held that there is no evidence to show that the building was constructed by the 1st defendant by using his own funds. In such circumstances the lower appellate court dismissed the appeal and confirmed the trial court's decree R.S.A. No. 847 of 2009 -4- and judgment. 7. Before this Court also the contesting defendants/appellants raised the very same contentions. After considering the merits of the case and appreciating the evidence on record, I find that the contesting defendants have not made out any grounds to interfere with the findings entered by the courts below .So long as there is no positive proof to show that the house was constructed by the 1st defendant by using this own funds they cannot assail the finding of the courts below that the building is also available for partition. The grounds raised in this Second Appeal are not sufficient enough to invoke this Court's jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No.847 of 2009 ---------------------------- JUDGMENT 12th August , 2009