IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 AS.No. 570 of 1998() -------------------- OS.381/1995 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/PLAINIFF: ----------------- K. MAMMAD KOYA, KANHIROLI, PUTHIYANGADI AMSOM, DESOM, KOZHIKODE TALUIK. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENTS/DEFENDANTS: --------------------- 1. KANHIROLI IMBICHI MAMMU, S/O.ALIKUNHI, MAKKADA AMSOM DESOM, KOZHIKODE TALUK 2. KANHIROLI ABDURAHIMAN, S/O.ALIKUNHI, KACHERI AMSOM DESOM, KOZHIKODE TALUK. KANHIROLI ASSANKOYA @ ASSAYIN, S/O. ALIKUNHI, (DIED) VENGERI AMSOM, KOZHIKODE TALUK. 3. KANHIROLI AMINAKUTTY, D/O.ALIKUNHI, CHELAVUR AMSOM DESOM, -DO- 4. KANHIROLI MOIDEENKOYA, S/O.ALIKUNHI, VELIPARAMBA AMSOM DESOM, -DO- 5. KANHIROLI ABOOBACKER, S/O.ALIKUNHI, PUTHIYANGADI AMSOM DESOM, -DO- 6. UMMAYYAKUTTY, W/O.KANHIROLI ASSANKOYA & ASSAYIN, MOROTH THAZHAM VAYALIL, VENGERI AMSOM DESOM, -DO- 7. ABDUL KAREEM, S/O.LATE KANHIROLI ASSANKOYA, -DO- -DO- 8. JAMEELA, D/O. -DO- -DO- 9. SUHARA, D/O. -DO- -DO- 10. BEERAN KOYA, -DO- -DO- 11. NOORJAHAN, D/O. -DO- -DO- 12. SIDDIQUE, S/O. -DO- -DO- 13. MUNIRA, D/O. -DO- -DO- ADV. SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE FOR R1 SRI.S.ANANTHAKRISHNAN FOR SRI.N.K.SUBRAMANIAN FOR SRI.PAUL MATHEW FOR R2, R4, R6 TO R13 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.4742/1998 IN A.S.NO.570/1998 ------------------------- DISMISSED 7/6/2010 Sd/- Harun-Ul-Rashid, Judge. HARUN-UL-RASHID,J. ------------------------------ A.S.NO.570 OF 1998 ------------------------------- DATED THIS THE 7TH DAY OF JUNE, 2010 JUDGMENT Plaintiff in O.S.No.381/1995 on the file of the Sub Court, Kozhikode is the appellant. The suit was filed for partition. The court below held that the plaintiff is not entitled to any relief and hence dismissed the suit with costs of the lst defendant. Parties hereinafter referred are the plaintiff and defendants as arrayed in the suit. 2. The plaint schedule items originally belonged to Mariyamkutty Umma. She was a title holder as per document No.976/1939. Subsequent to her death, the plaint schedule properties and other items were devolved upon the plaintiff and defendants 1 to 6 and their father Alikunhi. On her death all the legal heirs joined together and partitioned the properties including the plaint schedule properties as per partition deed -2- A.S.No.570/1998 No.186/1963. Ext.B1 is the partition deed. The plaint schedule item No.1 is about 1/2 cents of property wherein the residential building is situated. Item No.1 was set apart in common for all the parties to the partition deed. Item No.2 was set apart to the share of the plaintiff and his brother, the 5th defendant. Subsequently, the 5th defendant assigned his half right in item No.2 in favour of the lst defendant. According to the plaintiff, the suit was filed for partition and separate possession of the share of the plaintiff. 3. The lst defendant contested the suit. The 3rd defendant died during the pendency of the suit and his legal heirs are impleaded as supplemental defendants 7 to 14. Defendants 2, 5 and supplemental defendants 7 to 14, have together filed a written statement supporting the claim for partition and denying the exclusive claim over the properties by the lst defendant. In the written statement filed by the lst defendant, he admitted that the plaint schedule properties were acquired by Mariyamkutty -3- A.S.No.570/1998 Umma and the subsequent partition of all the sharers. The lst defendant also admitted that the plaint item No.1 was kept in common and that item No.2 was set apart to the share of Alikunhi and the 4th defendant. It is the case of the lst defendant that the plaintiff as well as the 5th defendant have assigned their rights over item No.2 to the lst defendant by registered document. In the written statement, various assignment deeds by the sharers and the share of the properties were stated in detail. It is further stated that by virtue of the documents mentioned in detail in the written statement, the lst defendant has become the absolute owner of the plaint schedule item No.1 as well as item No.2 and that he is in peaceful possession and enjoyment of the plaint schedule properties. The lst defendant obtained a purchase certificate from the Land Tribunal in the joint name of the lst defendant and the 6th defendant. The purchase certificate is marked as Ext.B13. The defendants prayed for dismissal of the suit. -4- A.S.No.570/1998 4. The contesting parties adduced oral and documentary evidence. The plaintiff was examined as PW1. The lst defendant was examined as DW-2 and another witness was examined as DW-1. The plaintiff produced Exts.A1 to A6 and the Defendants produced Exts.B1 to B17(a). The trial court examined the questions as to whether Exts.B2 and B4 release deeds of the years 1965 and 1964 respectively alleged to have been executed by the plaintiff releasing his right are vitiated for any reasons as stated in the plaint, whether the plaintiff and defendants 2 to 4 have any right, title or interest over the plaint schedule properties and whether the plaintiff is entitled to the declaration as sought for. The court below examined the question as to whether the plaint schedule properties are partible and whether the plaintiff's right if any is barred by limitation. 5. It is not in dispute that after the death of the mother of the plaintiff and defendants 1 to 6, the property devolved upon them and their father Alikunhi. It is also not in -5- A.S.No.570/1998 dispute that the plaint schedule property was partitioned between the sharers as per Ext.B1 partition deed. Ext.B1 would show that plaint schedule item No.1 was kept in common for the plaintiff and defendants 1 to 6 and their father Alukunhi and plaint schedule item No.2, which consists of two items, was allotted to the plaintiff and the 5th defendant. Plaintiff was examined as PW-1. He testified before the court below that he did not execute any documents in favour of the lst defendant releasing his right. All the release deeds executed by various sharers including the plaintiff were produced by the lst defendant. Exts.B2 and B4 are the release deeds of the years 1965 and 1964 respectively, alleged to have been executed by the plaintiff in favour of the lst defendant. The lst defendant also produced Exts.B3, B5, B7, B8, B9, B10, B11, and B12 release deeds executed by other sharers releasing their right over the property in favour of the lst defendant. 6. The trial court while considering issue No.2 in -6- A.S.No.570/1998 paragraph 9 elaborately considered all the release deeds by various sharers including the plaintiff. It has come out in evidence that the lst defendant subsequently obtained Ext.B13 purchase certificate from the Land Tribunal in the joint names of himself and the 6th defendant. The trial court also observed that during that time the 6th defendant had not executed a release deed in favour of the lst defendant. That is the reason why the purchase certificate was obtained in the joint names of the lst defendant and the 6th defendant. Ext.B14 series are the revenue receipts obtained in the name of the lst defendant and Ext.B15 series are the building tax receipts obtained in his name. Taking into account the contention raised by the plaintiff that he had not executed release deed in favour of the lst defendant, the trial court examined the validity of Exts.B2 and B4 release deeds. 7. The lst defendant contended that Exts.B2 and B4 documents are executed more than 30 years ago and therefore the presumption under Section 90 of the Evidence Act is -7- A.S.No.570/1998 available. The trial court examined the valid documents under Section 90 of the Evidence Act. The trial court rightly held that by virtue of the presumption available under Section 90 of the Evidence Act, it is not incumbent upon the lst defendant to prove that the documents were validly executed. In the light of Section 90 of the Evidence Act, the trial court further held that the burden is on the plaintiff to prove that he has not signed Exts.B2 and B4. Ext.B2 is executed not only by the plaintiff but also by the defendants 3 and 6 and their father Alikunhi. But none of them come forward to testify that the document Ext.B2 is not executed by defendants 3 and 6 or their father Alikunhi. The trial court also found that the plaintiff has not taken any steps to get the disputed signatures in Exts.B2 and B4 examined by an expert. The plaintiff has not succeeded in dislodging the presumption regarding the due execution of Exts.B2 and B4. The trial court held that the documents Exts.B2 and B4 are validly executed, that the plaintiff and defendants 2 to 14 have no manner of right, -8- A.S.No.570/1998 title and interest over the plaint schedule properties. The trial court examined the question as to whether the plaintiff's right if any is barred by limitation and held that the suit is barred by limitation. The plaintiff has not preferred any cross objection against the finding regarding limitation. The learned counsel for the lst defendant pressed into service Article 59 of the limitation Act. He submitted that as per Article 59, to cancel or set aside an instrument, the time beings to run when the fact entitling the plaintiff to have the instrument or instrument set aside first becomes knowing to him and from that time he has got only 3 years period to file the suit. Ext.A2 is the reply notice sent by the lst defendant to the suit notice. Finding that the suit was filed beyond the period of 3 years it was held that the suit is barred by limitation. 8. The above-mentioned facts and materials discussed would show that the the plaintiff has miserably failed in proving his case and is not entitled to the relief of partition. I -9- A.S.No.570/1998 find that no valid grounds are made out by the appellant for interference. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv