IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 RFA.No. 290 of 2006() -------------------------------- O.S.44/2004 OF SUB COURT, KASARAGOD. ................. APPELLANTS/DEFENDANTS 2 & 7: -------------------------------------------------- 1. S. MOHAMMED KUNHI, BANDADKA IN BANDADKA VILLAGE, KASARAGOD TALUK, VIA. CENGALA. 2. SAKEENA, W/O. ABDUL KHADER, ALAMPADY, ERIPPADY HOUSE, MUTTATHODY VILLAGE, KASARAGOD TALUK, P.O. ALAMPADY. BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE. RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 & 3 TO 6: -------------------------------------------------------------------------------------- 1. S.A. NABEESA, W/O. MOHAMMED KUNHI, HASIDA MANZIL, PULIKOOR, SHIRIBAGILU VILLAGE, VIA. KUDLU, KASARAGOD TALUK. 2. BEEPATHUMMA, SAKEENA VILLA, SHIRIBAGLU VILLAGE, KASARAGOD TALUK. 3. SAFIYA, W/O. MOHAMMEDKUNHI, NIDUGALA HOUSE, NEERCHAL VILLAGE, KASARAGOD TALUK. *4. MYMOONA, W/O. SAMSUDDIN, PUTHUMAN HOUSE, KOPPA, MUTTATHODY VILLAGE, KASARAGOD TALUK. *(DIED) 5. ABDULKAREEM, SAKEENA VILLA, SHIRIBAGLU VILLAGE, KASARAGOD TALUK. 6. MOHAMMED MUSTAF, -DO- -DO-. *IT IS RECORDED THAT R4 DIED ON 30/07/2008, VIDE ORDER DATED 03/06/2010 IN MEMO DATED 04/03/2010, C.F.1307/2010. R1, R3, R5 & R6 BY ADV. SMT.T.D.RAJALAKSHMI. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. RFA290/06 -: 1:- Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.290 of 2006-E = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of July, 2010. Judgement Thottathil B.Radhakrishnan, J. Defendants 2 and 7 in a suit for partition are the appellants. The seventh defendant did not file any written statement. The plea of the second defendant was one by which he claimed a special right and said that the entire suit property is not available for partition. He did not put forward any claim in the written statement to the exclusion of the plaintiff or the other co-owners. It appears that in evidence, he placed a registered document. The plea in the appeal is that the court below did not take note of that document and that the property covered by that document ought to have been treated as exclusively belonging to the appealing second defendant and thus, RFA290/06 -: 2:- to be excluded from partition. We are not impressed. No amount of evidence could be countenanced in the absence of a plea. The second defendant had no case in his written statement that he had exclusive title to the property as he now pushes for consideration in the appeal on the basis of that document. With this, we find that the fundamental ground raised in this appeal fails. In so far as the profits granted by the court below is concerned, we do not find any ground to interfere. Under such circumstances, this appeal fails. The same is accordingly dismissed. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/0807