IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 SA.No. 95 of 1995(C) -------------------- AS.45/1994 of ADDITIONAL SUB COURT, ALAPPUZHA OS.nO.283 OF 1984 OF MUNSIFFS COURT, ALAPPUZHA .................... APPELLANT/DEFENDANT: ----------------- STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA BY GOVT PLEADER: SRI L G SURESH BABU RESPONDENT/PLAINTIFF: ------------------ KUTTY PRASAD NJARAPARAMBIL VEEDU THRIKODITHANAM VILLAGE BY ADV. SRI S DEVALAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON 07/09/2009 DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ S.A.No.95 Of 1995 & A.S.No.90 of 1995 ---------------------- Dated this the 1st day of December, 2010. J U D G M E N T S.A.No.95 Of 1995 The following substantial questions of law are formulated in the appeal at the time of admission. “1) Whether the courts below have applied the correct principles of law regarding the construction of Ext.B1 document while decreeing the suit. 2) Whether the courts below are right in its finding that Mathu had subsisting right in the property after Ext.B1 partition deed when she herself was a party to the document and had admitted the devolution of properties after her death - in favour of the appellants. 3) Whether or not the admission made by Mathu or the intention expressed by her regarding the devolution of her right after death amounts to or have the effect of a gift by Mathu of her right in the property. 4) Whether the courts below right in its finding that Ext.A1, assignment is valid in view of the recitals in Ext.B1 partition deed.” 2. Defendants 3 to 8 in O.S.No.96 of 1989 on the file of the Munsiff Court, Kannur, are the appellants. The appeal is directed against the judgment and decree dated 12.2.1993 in S.A.No.95/95 & A.S.No.90/95 ::2:: A.S.No.64 of 1992 on the file of the Sub Court, Thalassery. Suit was filed for partition. The trial court passed a preliminary decree, ordering division of the plaint schedule property into 21 equal shares and allotting 4 such shares each to the plaintiff and 1st defendant, the second defendant is entitled to get 7 shares and defendants 3 to 8 together entitled to get the remaining 6 shares. The preliminary decree and judgment passed by the trial court was confirmed by the lower appellate court in appeal. The sole plaintiff, defendants 1, 2 and father of defendants 3 to 8 are the children of one Mathu. 3. It is the plaintiff's case that the plaintiff and defendants are in joint possession and enjoyment of the property as absolute owners. Therefore the suit was filed for division of the property by metes and bounds. Plaintiff claimed that the plaintiff and the 1st defendant are entitled to get 4 equal shares each out of total 21 shares, the 2nd defendant entitled to get 7 such shares and defendants 3 to 8 are entitled to get remaining 6 shares. 4. The 3rd defendant alone contested the case. It is contended that the plaint schedule property is not partible and therefore prayed for dismissal of the suit. S.A.No.95/95 & A.S.No.90/95 ::3:: 5. The trial court examined the question as to whether the plaintiff has title over the plaint schedule property, whether the plaintiff and defendants are in joint possession of the plaint schedule property and as to whether the plaint schedule property is available for partition. The dispute was examined and decided in the light of oral and documentary evidence adduced by the parties. The trial court on an appreciation of facts concluded that Ext.A1 is a validly executed document. As per Ext.A1 Mathu transferred the property to the plaintiff and first defendant and therefore held that the plaintiff has title over the plaint schedule property, that the plaintiff and defendants are in joint possession of the property and that the plaint schedule property is available for partition. The court also observed that the decree in O.S.No.323 of 1982 will not bind the plaintiff and first defendant as they were not parties to that suit. On the basis of the said finding the trial court passed the decree as aforesaid. 6. Defendants 3 to 8 preferred appeal. The first appellate court also appreciated the evidence on record and held that Ext.A1 was executed by Mathu and it is a valid document. The lower appellate court held that the trial court was fully justified in passing a decree in favour of the plaintiff. The S.A.No.95/95 & A.S.No.90/95 ::4:: contentions raised before the appellate court are re-agitated before this Court in second appeal. The learned counsel for the appellants contended that as per the recital in Ext.B1 partition deed, Mathu had expressed her intention to confer her right over the property after her death in favour of the 2nd defendant and the predecessor-in-interest of the appellants and hence Mathu cannot transfer her share in favour of plaintiff and 1st defendant. Learned counsel contended that the interpretation placed on Ext.B1 partition deed is not proper and the recitals are not properly read. The counsel attacked the findings of the courts below that Ext.A1 assignment is a genuine document. According to him there is no proper evidence regarding the execution of the assignment deed in favour of the plaintiff. In fact, the trial court as well as the appellate court considered the contentions of the appellants in the light of the evidence on record. The trial court after evaluating the evidence concluded that Ext.A1 is a valid document. Reasons are stated for arriving such a finding. The lower appellate court also examined the contentions and on facts found that there is no justification for interfering with the considered order passed by the trial court. Both fact findings court appreciated the evidence and decided the issues based on S.A.No.95/95 & A.S.No.90/95 ::5:: facts. No question of law muchless any substantial question of law arises for consideration in this second appeal. A.S.No.90 of 1995 This appeal is directed against the decree and judgment dated 16.8.1993 in O.S.No.352 of 1992 on the file of the Sub Court, Thalassery. The suit is for realisation of Rs.22,303/- paid in E.P.No.59 of 1989 in O.S.No.323 of 1982 on the file of the Munsiff Court, Kannur. O.S.No.323 of 1982 is a suit for partitioning the property possessed by late Kunhikannan, the predecessor-in-interest of the plaintiffs and defendants. The said suit was decreed on 15.1.1986. Ext.A1 is the copy of the preliminary decree. Subsequently, final decree was also passed. The final decree provides that late Kunhikannan shall pay a sum of Rs.20,143.75/- to the defendants herein as owelty amount. The defendants in this suit had realised the owelty amount in E.P.No.59 of 1989. Ext.A2 is the copy of the order. O.S.No.96 of 1989 filed by sister of late late Kunhikannan for partition was subsequently decreed and thereafter confirmed in appeal. The second appeal, namely, S.A.No.95 of 1995, filed by the defendants 3 to 8 in O.S.No.96 of 1989 was dismissed today by this common judgment. Repelling the contentions the trial court S.A.No.95/95 & A.S.No.90/95 ::6:: held that the suit is in fact barred by res judicata in view of the decision in O.S.No.323 of 1982 and that the plaintiffs are not estopped from claiming the amount paid in E.P.No.59 of 1989. On the basis of the said findings the suit filed for realisation of Rs.22,303/- from the defendants with interest and cost was decreed. This appeal is filed challenging the said decree and judgment. In view of the confirmation of the preliminary decree for partition in O.S.No.96 of 1989, the contentions raised in the appeal cannot stand. The contentions raised by the defendants in the suit are unsustainable. Therefore, the appeal is without any merit. In the result, S.A.No.95/1995 and A.S.No.90/1995 are dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-