IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 RSA.No. 435 of 2010(B) -------------------------------- [AS.NO.31/2008 OF DISTRICT COURT, KOTTAYAM, OS.NO.225/2006 OF MUNSIFF'S COURT, CHANGANACHERRY] .................... APPELLANTS/APPELLANTS/DEFENDANTS: --------------------------------------------------------------- 1. LATHA GEORGE, W/O. GEORGEKUTTY, RESIDING AT KANYAKONIL HOUSE, THRIKKODITHANAM VILLAGE, MADAPPALLY MURI, CHANGANACHERRY TALUK. 2. GEORGE KUTTY, S/O. K.V.POTHEN, RESIDING AT KANYAKONIL HOUSE, THRIKKODITHANAM VILLAGE, MADAPPALLY MURI, CHANGANACHERRY TALUK. BY ADVS. SRI.JOHN VARGHESE, SRI.P.M.JOSEPH. RESPONDENT/RESPONDNET/PLAINTIFF: ----------------------------------------------------------- KUNJANNAMMA, D/O. K.V.POTHEN, RESIDING AT KANYAKONIL HOUSE, THRIKKODITHANAM VILLAGE, MADAPPALLY MURI, CHANGANACHERRY TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- R.S.A No.435 of 2010 -------------------------- Dated this the 2nd June, 2010 J U D G M E N T Defendants in O.S No.225/2006 before the Munsiff's Court, Changanacherry are the appellants herein. The parties and facts hereinafter referred to as are available before the trial court. 2. The suit was one for partition and permanent prohibitory injunction. According to the plaintiff, plaint schedule property is a part of larger extent which originally belonged to K.V Pothen, the deceased father of plaintiff who obtained it by gift deed No.2001/86 of Thengana S.R.O. Late K.V. Pothen divided his property into five shares among the plaintiff, her brother and sisters as A to D and E schedule. K.V Pothen retained "E' schedule in the gift deed as the joint share of himself and his wife Saramma. That property was in the joint possession and enjoyment of K.V. Pothen and Saramma. It seems that Saramma transferred her share over E schedule property in favour of first defendant by gift deed No. 210/95 of Thengana Sub Registry Office. First R.S.A No.435 of 2010 2 defendant is the wife of the 2nd defendant and daughter in law of Saramma. The plaintiff is the sister of the 2nd defendant. Later by settlement deed No.1414/2000 of Thengana S.R.O, K.V Pothen settled his remaining one half oodukure right over the 'E' schedule property in gift deed No.2001/86 in favour of the plaintiff. The 'E' schedule property in gift deed No.2001/6 is the plaint schedule property . 3. Defendants resisted the suit. It is stated that C schedule property is lying on the northern side of the plaint schedule property. It is pointed out that by gift deed No.210/95 Saramma had gifted her share to the 1st defendant and the 1st defendant and his family are residing there. It is claimed that property over which plaintiff and defendants had joint right had already been partitioned and boundaries have been put up regarding the respective shares. On the basis of these contentions, they prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1. Exts. A1 to A3 were marked from the side of the R.S.A No.435 of 2010 3 plaintiff. DW1 and DW2 and Exts.B1 to B5 were marked from the side of the defendants. 5. On valuation of the evidence of the case, the court below found that the claim putforward by the defendants that E schedule property had already been partitioned had not been substantiated. Preliminary decree was passed granting 1/2 share of the property to the plaintiff. 6. The matter was taken up in appeal by the defendants as A.S No.31/2008 before the District Court, Kottayam. The appellate court independently evaluated the evidence and came to the same conclusion and dismissed the appeal. It is against those concurrent findings, the present appeal has been lodged. 7. Learned counsel appearing for the appellants pointed out that the court below misconstrued the evidence on record. According to the learned counsel there is sufficient evidence to show that the partition putforward by the defendants had been effected and the parties had taken possession of their respective shares. The courts below were not justified in rejecting the contentions of the appellants. R.S.A No.435 of 2010 4 8. The contention now taken up before this Court were not accepted by the courts below. If as a matter of fact, there was a partition and separation of the respective shares as contended by the appellant the least the appellant could have done was to take a commission to establish the said fact. 9. Appellants relied on Ext.B4 which is a copy of the plaint in the suit filed by the respondents herein to contend for the position that there was partition. That suit was later withdrawn. 10. Ext.B1 also does not advance the case of the appellants much. Both the courts below concurrently found that there is no evidence adduced by the defendants to show that partition set up by the defendants is true. That being the finding of fact does not call for any interference by this Court. No infirmity could be pointed out by the learned counsel for the appellants. This appeal is without merits and is liable to be dismissed. I do so. P.BHAVADASAN, JUDGE ma R.S.A No.435 of 2010 5 R.S.A No.435 of 2010 6