IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 RSA.No. 1162 of 2004() ---------------------- AS.92/2001 of SUB COURT,KATTAPPANA OS.17/1997 of MUNSIFF COURT,KATTAPPANA .................... APPELLANTS/RESPONDENTS, 1, 4 AND 5 ------------------------------ 1. RAMAN KUTTY S/O.ANANDAN, AGED ABOUT 70 YEARS, ONAKKAPPARAYIL HOUSE, AYYAPPANCOVIL KARA, AYYAPPANCOVIL VILLAGE, IDUKKI DISTRICT. 2. BINDU W/O.SETHU, AGED 27 YEARS, VALATHOOKKIL, AYYAPPANCOVIL P.O., AYYAPPANCOVIL VILLAGE, IDUKKI DISTRICT. 3. SETHU, S/O.NANU, AGED ABOUT 34 YEARS, RESIDING AT VALATHOOKKIL HOUSE, AYYAPPANCOVIL P.O., AYYAPPANCOVIL VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.K.K.CHANDRAN PILLAI RESPONDENT(S): --------------- 1. ANANDA SAGAR, S/O.SEKHARAN, AGED 35 YEARS, ONAKKAPPARAYIL HOUSE, KOZHIMALA KARA, AYYAPPANCOVIL VILLAGE, UDUMBANCHOLA TALUK. 2. DILEEP S/O.SEKHARAN, AGED 32 YEARS, RESIDING AT ONAKKAPPARAYIL HOUSE, KOZHIMALA KARA, AYYAPPANCOVIL VILLAGE, UDUMBANCHOLA TALUK. 3. BINU, S/O.SEKHARAN, AGED 28 YEARS, RESIDING AT ONAKKAPPARAYIL HOUSE, KOZHIMALA KARA, AYYAPPANCOVIL VILLAGE, UDUMBANCHOLA TALUK. RSA 1162/2004 4. AJITHA, W/O.JAMINI, AGED 30 YEARS, VARAKIL HOUSE, SALIYAMPARA KARA, VELLATHOOVAL VILLAGE. 5. SHAJI, S/O.SREEDHARAN, AGED 37 YEARS, ONAKKAPPARAYIL HOUSE, KEERITHODU KARA, KANJIKUZHI VILLAGE, THODUPUZHA TALUK. 6. ROY, S/O.SREEDHARAN, AGED 34 YEARS, RESIDING AT ONAKKAPARAYIL HOUSE, KEERITHODU KARA,KANJIKUZHY VILLAGE, THODUPUZHA TALUK. 7. SUMA W/O.SATHEESAN, AGED 39 YEARS,. ASWATHY BHAVAN, KEERITHODU KARA, KANJIKUZHY VILLAGE. 8. KAMALAKSHY, W/O.NARAYANAN, AGED 72 YEARS, PUTHUPPILLADATHU HOUSE, KOZHIMALA KARA, AYYAPPANCOVIL VILLAGE(DIED. ADDL R13 IMPLEADED). 9. BHASKARAN, S/O.ANANDAN, AGED ABOUT 58 YEARS, SANTHOSH BHAVANAM, ASARIKANDAM, NEDUMKANDAM, KALKOONTHAL VILLAGE. 10. BHAVANI W/O.KUMARAN, AGED ABOUT 56 YEARS, KADAYAKANAL HOUSE, VELLILAMKANDAM KARA, AYYAPPANCOVIL VILLAGE. 11. BIJU, S/O.VASU, ONAKKAPPARAYIL HOUSE, VELLILAMKANDAM KARA, AYYAPPANCOVIL VILLAGE. 12. LEELA, W/O.VASU, AGED ABOUT 48 YEARS, RESIDING AT ONAKKAPPARAYIL HOUSE, VELLILAMKANDAM KARA, AYYAPPANCOVIL VILLAGE. * 13. SASI, S/O. KAMALAKSHY, AGED 48 YEARS, PUTHUPPILLADATHU HOUSE, KOZHIMALA KARA, AYYAPPANCOVIL VILLAGE. * LEGAL REPRESENTATIVE OF DECEASED 8TH RESPONDENT IS IMPLEADED AS ADDITIONAL R13 AS PER ORDER DATED 30.9.2011 IN I.A.522 OF 2006, IA 523 OF 2006 & CM.APPLICATION 123 OF 2006. ADV SRI.O.P.NANDAKUMAR FOR R1TO 7,11 & 12 SRI.V.A.AJAI KUMAR FOR R1TO 7,11 & 12 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1162 of 2004 ............................................ DATED THIS THE 8th DAY OF DECEMBER, 2011 JUDGMENT Defendants 1, 5 and 6 in O.S.17 of 1997 on the file of Munsiff Court, Kattappana are the appellants. Respondents 1 to 8 are the plaintiffs and other respondents, the other defendants in the suit. Suit was filed for partition and separation of the shares due to the plaintiffs contending that the plaint schedule property along with other properties originally belonged to Anandan. In 1970, there was an oral partition, whereunder the plaint schedule property having an extent of 40 cents including the family house was alloted to the share of mother Janaki and shares having an extent of 60 cents each was alloted to father Anandan and the sons. On the death of Janaki, the plaint schedule property is available for partition. It is to be divided between the legal heirs. Defendants 1 to 4, 8th plaintiff, deceased Sreedharan and deceased Sekharan are admittedly the children of Anandan and Janaki. Plaintiffs 5 to 7 are the children of deceased Sreedharan. Plaintiffs 1 to 4 are the children of deceased Sekharan. According RSA 1162/04 2 to the plaintiffs, the plaint schedule property is to be divided into seven equal shares and plaintiffs are entitled to 3/7 shares and defendants are entitled to the remaining shares. Appellants 2 and 3 are the daughter and son in law of the first defendant. 2. First appellant filed a written statement contending that plaint schedule property is not the property alloted to Janaki under the oral partition or portion of the property which originally belonged to Anandan. According to the first appellant, 45 cents including the plaint schedule property was Government land and it was encroached by the first appellant in 1949 and since then he has been in possession of the property. Janaki or the other legal heirs of Janaki have no right over the property. It was contended that under Ext.B1, first appellant transferred the property in favour of appellants 2 and 3. Plaintiffs and other defendants have no right over the plaint schedule property. The plaint schedule property is not available for partition. 3. Learned Munsiff, on the evidence, dismissed the suit finding that as per the case pleaded, four acres belonging to Anandan was divided between Janaki and their children and there was no case that 60 cents was alloted to the share of Anandan, RSA 1162/04 3 but when PW1 was examined, it was deposed that Anandan was alloted 60 cents and therefore the case of the plaintiffs is inconsistent. Learned Munsiff also found that though Ext.X1, the Field Measurement Register shows 15 ares, including the house, as the property belonging to Janaki, it has not become final and therefore it cannot be relied on. Learned Munsiff also found that after the death of Anandan, the ration card produced by the appellants shows that Janaki's name is not shown as one of the members of the house in the plaint schedule property and therefore the case that the plaint schedule property was alloted to the share of Janaki cannot be accepted. It was also found that appellants 2 and 3 instituted O.S.54 of 1997 and evidenced by Ext.B8 judgment and B9 decree, a decree for injunction was passed by the court restraining the plaintiffs against dispossession and in such circumstances, the suit was dismissed. Plaintiffs challenged the decree before Sub Court, Kattappana in A.S.92 of 2001. Learned Sub Judge, on re-appreciation of the evidence, found that at the time of arguments, learned counsel appearing for appellants and respondents admitted that Ext. X1 resurvey has subsequently become final and Ext.X1 shows that RSA 1162/04 4 Janaki was having 15 ares of land as claimed by the plaintiffs. Learned Sub Judge, based on Exts.A3 and A4 resurvey plans and Ext.X1, found that the said 15 ares of land is the plaint schedule property and from the pleadings in the written statement and the evidence, it is clear that 40 cents was alloted to Janaki and on her death, it is to be divided between the legal heirs plaintiffs and defendants are entitled to their share. Hence a preliminary decree was passed, directing division of the plaint schedule property into seven equal shares and allotment of three such shares to plaintiffs. The decree is challenged in the second appeal. 4. Appeal was filed along with an application filed under section 5 of the Limitation Act to condone the delay. After service delay was condoned. 5. Learned senior counsel appearing for appellants was heard. The argument of the learned counsel is that there is no evidence to prove that the plaint schedule property was part of the four acres claimed by the plaintiffs as originally belonged to Anandan, which was divided between Anandan, his wife Janaki and their sons. Learned counsel argued that case of appellants is that 45 cents of Government land was encroached upon by the RSA 1162/04 5 first appellant in 1949 and since then, he has been in exclusive possession of the property and he constructed a building and is residing therein and neither Anandan nor Janaki nor the other children of Janaki have any right over the property. Learned counsel argued that if the plaint schedule property forms part of the property belonging to Anandan, which was divided under an oral partition in 1970, at least one boundary of the plaint schedule property should be the remaining property divided under the oral partition and if that be so, either defendants 1 to 4 or Sreedharan or Sekharan should have been in possession of the boundary property and description of the plaint schedule property shows that none of the sons of Janaki are in possession of the boundary properties and hence the plaint schedule property cannot be the property originally belonged to Anandan or alloted to the share of Janaki. Learned counsel also argued that even though the plaint schedule property is 40 cents, the report submitted in the suit instituted by appellants 1 and 2, evidenced by Ext.B8 and B9, show that 45 cents is separately being enjoyed as demarcated by its boundaries and in such circumstances, case of the plaintiffs cannot be accepted. It was also argued that RSA 1162/04 6 Ext.X1 shows that first defendant is having 15.45 ares and also 24 ares of land and the case of the plaintiffs is that as per the oral partition, first defendant was alloted only 60 cents of land and if that be so, there is no explanation for the excess extent of land in possession of the first defendant and it would only be for the reason that first defendant had encroached upon the Government land and perfected his title. 6. On hearing the learned counsel and going through the judgments of the courts below and on the evidence in the case, I do not find any substantial question of law involved in the appeal. In paragraph 4 of the plaint, it was specifically pleaded that Anandan, the father obtained four acres of land and he has been in possession of the same. In paragraph 5 of the plaint, it was specifically pleaded that in 1970, the properties were orally partitioned and 40 cents was alloted to the mother Janaki and plaint schedule property is the said 40 cents. It was also pleaded that the remaining extent was divided and 60 cents each was alloted to the father and the sons. In the written statement, first defendant has no case that father Anandan did not obtain four acres of land as pleaded in paragraph 4 of the plaint. In the RSA 1162/04 7 written statement, the case of the plaintiffs that father was having four acres of land and it was divided in 1970 orally and 40 cents was alloted to mother Janaki and 60 cents each was alloted to the father and sons was also not denied. The only plea was that plaint schedule property is part of 45 cents, encroached upon by first appellant independently and it does not form part of the property, which originally belonged to Anandan or divided as claimed by the plaintiffs. When PW1 was examined in chief examination, it was specifically deposed that there was an oral partition and Janaki was alloted 40 cents and it is the plaint schedule property. This evidence was also not challenged. The only suggestion was that plaint schedule property is not portion of the property divided thereunder. In the light of the pleading and evidence, appellants cannot be heard to contend that there was no oral partition or that 40 cents was not alloted to the share of Janaki. 7. Though learned Munsiff found that case of the plaintiffs cannot be true for the reason that plaint does not disclose that 60 cents was alloted to Anandan, as rightly pointed out by learned counsel appearing for respondents 1 to 7, paragraph 5 of the RSA 1162/04 8 plaint specifically discloses that there was an oral partition between Anandan, Janaki and their sons and Janaki was alloted 40 cents and the others were alloted 60 cents each. The others should necessarily include Anandan. Therefore finding of the learned Munsiff or the argument of the learned counsel that the evidence of PW1 is against the pleading in the plaint, cannot be accepted. 7. Then the only question is whether plaint schedule property is the said 40 cents alloted to the share of Janaki. Learned Sub Judge on proper appreciation of the evidence entered a factual finding that it is the plaint schedule property. Though learned counsel vehemently argued that the said factual finding is not correct, on going through the evidence, I do not find any reason to interfere with that factual finding. In such circumstances, as no substantial question of law is involved, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk