IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 RSA.No. 101 of 2011() --------------------- AS.64/2010 of DISTRICT COURT, KASARAGOD OS.333/2008 of PRL.MUNSIFF COURT, KASARAGOD .................... APPELLANT/APPELLANT/ DEFENDANT --------------------------------------- BEEFATHIMA, AGED 67 YEARS, W/O.LATE MOHAMMED BUGUARI, RESIDING AT KALLUVALAPPU OF CHEMNAD VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O.CHEMNAD. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA SRI.K.S.BALAKRISHNAN RESPONDENT(S): PLAINTIFF ------------------------ AYSHA BUQUARI, AGED 50 YEARS, W/O.LATE MOHAMMED BUQUARI, RESIDING AT KALLUVALAPPU OF CHEMNAD VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O.CHEMNAD. 673001 ADV. SRI.S.JIJI FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.101 OF 2011 --------------------------------------------- Dated 4th April, 2011 JUDGMENT Defendant in O.S.333/2008 on the file of Principal Munsiff court, Kasargod is the appellant. Respondent is the plaintiff. Respondent instituted the suit seeking a decree for partition of the plaint A schedule properties into two equal shares and allotment of one share to the respondent. Plaint A schedule properties admittedly originally belonged to Muhammed Buquari under Ext.A2 sale deed. Appellant and respondent are admittedly the widows of Abdul Buquari, who died on 18/9/2006. Respondent sought partition of the plaint A schedule properties contending that on the death of Abdul Buquari, his rights devolved RSA 101/11 2 on the respondent and the appellant as there are no other legal heirs. Appellant resisted the suit admitting that respondent is also the widow of Abdul Buquari and the plaint A schedule properties originally belonged to the husband. It is contended that under Ext.B1 settlement deed, the properties were given to the appellant and therefore, plaint A schedule properties are not available for partition. 2. Learned Munsiff on the evidence found that though Ext.B1 settlement deed was produced, it is only the registration copy of the settlement deed and no evidence was adduced to prove Ext.B1 and hence plaint A schedule properties are available for partition. A preliminary decree was passed. Appellant filed A.S.64/2010 before District Court, Kasargod, challenging preliminary decree. Appeal was RSA 101/11 3 filed after delay of 399 days. I.A.390/2010 was filed to condone the delay under Section 5 of the Limitation Act. Case of the appellant was that original of Ext.B1 settlement deed was with Kerala State Women's Commission and appellant could get back the original only on 15/1/2010 and therefore, the appeal could not be filed till then and the delay was not willful. It was also contended that appellant was suffering from Diabetes and Hyper tension and was under the treatment of Dr.Fazal Rahman and she was advised to take complete bed rest and therefore, she could not file the appeal in time. A certificate from the doctor was also produced. Learned District Judge on appreciating the facts and the materials dismissed I.A.390/2010 and consequently dismissed the appeal. Second appeal is filed RSA 101/11 4 challenging the dismissal of the first appeal. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that learned Munsiff dismissed the suit mainly on the ground that original of Ext.B1 settlement deed was not produced and that settlement deed was originally with the respondent and only on filing the complaint before State Women's Commission it was got produced therein and appellant therefore could not produce the document before the trial court and she could get back the document from the State Women's Commission only on 15/1/2010 and in such circumstances, the delay should have been condoned. Learned counsel also argued that when a medical certificate was produced to prove the illness alleged by the appellant, in RSA 101/11 5 the interest of justice first appellate court should have condoned the delay and considered the appeal on merits and dismissal of the appeal after dismissing the application to condone the delay is illegal and in the interest of justice, an opportunity is to be granted. 5. Judgment of the learned Munsiff shows that no oral evidence was adduced by the appellant. The suit was for partition of the properties, which admittedly belonged to Abdul Buquari, the husband who died in 2006, leaving behind the two widows, appellant and the respondent. The fact that plaint A schedule properties belonged to Abdul Buquari is not disputed. Therefore, unless appellant could establish that Abdul Buquari had executed Ext.B1 settlement deed and that settlement deed RSA 101/11 6 was accepted and acted upon, appellant cannot resist the claim for partition sought for by the other widow. Respondent contended that there was no settlement deed and the properties are available for partition. Even if the argument of the learned counsel appearing for the appellant is accepted and it is taken that instead of Ext.B1, original of Ext.B1 itself was produced, it would not have made any difference on the findings, as without proof of execution of Ext.B1 and that it was accepted and acted upon, appellant cannot resist the claim for partition. Learned counsel made available copy of the appeal memorandum filed before District Court, Kasargod in A.S.64/2010. I find that there was no case for the appellant that she did not get opportunity to adduce evidence or he failed to adduce RSA 101/11 7 evidence on any ground. Therefore, even if original of Ext.B1 is marked, it would make no difference in the conclusion arrived at by the trial court. 6. More over, for filing an appeal challenging the preliminary decree, there is no necessity for the original of Ext.B1. Even if Ext.B1 is to be produced before the court, it could have been produced only with an application under Rule 27 Order XLI of Code of Civil procedure, which could have been done after filing of the appeal. There is no valid or justifiable reason for not filing the appeal, on account of failure to get the original of Ext.B1. Added to this, case of the appellant is that she was laid up and advised to take complete bed rest. In support of the case a medical certificate was produced, which RSA 101/11 8 was extracted by the learned District Judge in the order. As rightly found by the learned District Judge, though the certificate shows that appellant was under the treatment of the doctor for Diabetes, Mellites, Hyper tension, and Peripheral Neuropathy since January 2010, appellant was not advised to take bed rest. More over, it is the case of the appellant herself that she had approached the Women's Commission, subsequent to the preliminary decree, and obtained Ext.B1 from the Women's Commission. If appellant could do that, she is definitely entitled to file an appeal in time. In such circumstances, I find no reason to interfere with the findings of the first appellate court that the inordinate delay cannot be condoned. I find no substantial question of law involved in the appeal RSA 101/11 9 Learned counsel then submitted that as appellant is residing in the house in the plaint A schedule properties, the house may be reserved to her. Question of allotting the house is to be decided in the final decree proceedings and it is left to be decided in the final decree. M.SASIDHARAN NAMBIAR, JUDGE. uj.