IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 RSA.No. 614 of 2006() --------------------- AS.133/2004 of DISTRICT COURT, THRISSUR OS.3000/2000 of I ADDL.M.C.,THRISSUR .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 3 AND 5: ------------------------------------------------------------------ 1. VILASINI, W/O.KOTTEKKAT VEETTIL KUMARAN, KUTTUR VILLAGE, KUTTUR DESOM, THRISSUR TALUK. 2. GIRISH, S/O. VILASINI, KOTTEKKAT VEETTIL, KUTTUR VILLAGE, KUTTUR DESOM, THRISSUR TALUK. 3. SUMITH, S/O. VILASINI, KOTTEKKAT VEETTIL, KUTTUR VILLAGE, KUTTUR DESOM, THRISSUR TALUK. 4. SANDYA, D/O. VILASINI, KOTEKKAT VEETTIL, KUTTUR VILLAGE, KUTTUR DESOM, THRISSUR TALUK. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): RESPONDENTS/PLNTFS. TO 5,DFNDT.4 & LRS.OF 6TH DFNT ----------------------------------------------------------------- 1. DEVAKY, W/O.MADATHIPARAMBIL KUNJU, KOTTEKKAD DESOM, PALAKKAD DISTRICT. 2. SUBHADRA, W/O. RAGHAVAN, FLAT NO.F-64, RESERVE BANK QUARTERS, CHODAIMED, HIGH ROAD, CHENNAI-600 094. 3. SUDHAKARAN, S/O.KOTTEKKAT VEETTIL- KARAPPAKUTTY, KOTTEKKAD DESOM, KUTTUR VILLAGE, THRISSUR TALUK. 4. SUNDARAN, S/O. KOTTEKKAT KALI, PYNKULAM VILLAGE, PYNKULAM DESOM, THRISSUR TALUK. 5. USHA, W/O. VIJAYAN, KUNNUMAL HOUSE, CHERUTHURUTHY P.O.,THRISSUR DIST. 6. VINOD, S/O.VILASINI, KOTTEKKAT VEETTIL, KUTTUR VILLAGE, KUTTUR DESOM, THRISSUR TALUK. 7. K.P. PUSHPAVALLI, D/O.LATE PARAMESWARAN, KOTTEKKAT VETTIL, KUTTUR VILLAGE, TRICHUR. 8. K.P. USHA, W/O. SIVAN, MUTHENPARA HOUSE, KODALASSERI VILLAGE, TRICHUR. 9. K.P. VASANTHI, W/O. THAZHEKKATTU SUKUMARAN, CHERAI,PALLIPPURAM. 10. T.S. DHANYA, D/O.THAZHEKKATTU SUKUMARAN, CHERAI, PALLIPPURAM. 11. K.P. SHEELA, D/O.LATE PARAMESWARAN, KOTTEKKATTU VEETTIL, KOTTEKKAD DESOM, KUTTUR VILLAGE, TRICHUR. 12. K.P. RAJANI, W/O. ASOKAN, ELAMTHURUTHI HOUSE, KOZHUKKULLI VILLAGE,TRICHUR. ADV. SRI.P.V.CHANDRA MOHAN FOR R1 TO R5 SRI.P.P.RAMACHANDRAN FOR R6 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.614 OF 2006 --------------------------------------------- Dated 18th February, 2011 JUDGMENT Defendants 1 to 3 and 5 in O.S.3000/2000 on the file of Ist Additional Munsiff's Court, Thrissur are the appellants. Respondents 1 to 5 are the plaintiffs and other respondents, the other defendants. Suit was for partition of the plaint schedule house. Respondents 1 to 5 contended that there is an old house in the plaint schedule property and appellants are residing therein and they are having half right in that house as per Ext.A1 registered deed No.4275/1119 and house of deceased 6th defendant is very near to the house of appellants and third respondent has no house of his own and respondents 1 RSA 614/06 2 to 5 are entitled to get their half share separated. It is contended that they requested appellants to give their half share but they are not willing. It is also contended that if the house is given on rent, it would fetch a monthly rent of Rs.500/-. Respondents 1 to 5 therefore sought division of the properties and allotment of their half share with share of profits calculated at the rate of Rs.250/- per month. 2. Appellants resisted the suit contending that the plaint schedule house is not available for partition. It is contended that the house which was in existence at the time of execution of Ext.A1 document is now not in existence. Existing house is constructed by the appellants, spending their own money. When the house was constructed properties were not RSA 614/06 3 separated and therefore small portion of the house was extended to the plaint schedule property. It is not available for partition. Defendants 4 and 6 remained ex-parte. 3. On the evidence of PW1, DW1 and Exts.A1 and B1 and B1(a) to (c) learned Munsiff found that there is no evidence to prove that the building, which was in existence at the time of Ext.A1 deed, was subsequently demolished and a new building was constructed by the appellants out of their own funds as claimed and therefore, the building is available for partition. A preliminary decree was passed directing division of the building by auction among the appellants and respondents, the sharers and dividing the value equally. The claim for share of profits was disallowed. Appellants challenged the judgment RSA 614/06 4 before District Court, Thrissur in A.S.133/2004. Learned District Judge on re- appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the appeal. 4. As notice before admission was issued, respondents were also appeared. Learned counsel appearing for the appellants vehemently argued that when there is no evidence to prove that the house now existing in the plaint schedule property was there at the time of execution of Ext.A1 sale deed, courts below should not have granted a decree for partition of that house. It is contended that burden is on respondents 1 to 5, the plaintiffs, to establish that the house is available for partition and when there is no evidence, the preliminary decree is not sustainable. Learned RSA 614/06 5 counsel also argued that house now existing in the property was constructed by the appellants out of their own funds and in such circumstances, the preliminary decree is to be set aside. 5. Fact that property was acquired under Ext.A1 assignment deed is not in dispute. Ext.A1 shows that the property is inclusive of a building. Though appellants would contend that the said building was subsequently demolished and subsequently the present building was constructed, apart from the ipse dixit of DW1, no other evidence was adduced to prove that the building which was there at the time of execution of Ext.A1 was demolished and the present building was constructed by the appellants using their own funds later. If building was constructed subsequently as RSA 614/06 6 claimed, there would have been documentary evidence like the plan or license obtained from the local authority to show that the house was constructed by the appellants. Though learned counsel argued that Ext.B1 series of tax receipts establish that building was constructed by them, payment of building tax will not establish that the house was constructed by the appellants as canvassed by them. If there was no house in the property, when it was acquired under Ext.A1, position would have been different. But when Ext.A1 shows that there was a building and it is the case of the appellants that the building now existing is not that building but a new building constructed by them, it is upto them to prove that fact. As no other evidence was adduced, courts below were fully justified in RSA 614/06 7 finding that the existing house is the house which was referred to in Ext.A1. In such circumstances, finding of the courts below that respondents 1 to 5 are entitled to half share in that building is perfectly correct. 6. Then the only question is whether the building as such is to be divided or it is to be auctioned, as the building alone is found available for partition. On the facts, I find no reason to interfere with the findings of the courts below that the building is to be auctioned among sharers and the value is to be divided equally. It is made clear that the property which was directed to be auctioned is the building within the property covered by Ext.A1 sale deed. Appeal is disposed accordingly. RSA 614/06 8 M.SASIDHARAN NAMBIAR, JUDGE. uj.