IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : HE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 RSA.No. 218 of 2008() --------------------- AS.88/2000 of SUB COURT, TIRUR OS.149/1998 of MUNSIFF COURT, TIRUR .................... APPELLANT/IST RESPONDENT/PLAINTIFF ------------------------------------------------------ VAYILISSERI MOIDEEN KUTTY, S/O.ABDULLA, AGED 56 YEARS, RESIDING AT VAYILISSERI VEEDU, SOUTH ANNARA, TIRUR TALUK. BY ADV. SRI.WILSON URMESE RESPONDENT(S): APPELLANT & RESPONDENTS 2 TO 4/DEFENDANT 1 TO 3 AND 5: -------------------------------------------------------------- 1. VAYILISSERI MAMMED, S/O.ABDULLA, AGED 65 YEARS, RESIDING AT VAYILISSERI VEEDU, KOOTAYI P.O., TIRUR TALUK. 2. VAYILISSERI KADEEJA, D/O.ABDULLA, AGED 62 YEARS, RESIDING AT NORTH ANNARA, TIRUR P.O., MALAPPURAM DIST. 3. VAYILISSERI PATHUMMAKUTTY UMMA, D/O.ABDULLA, AGED 60 YEARS, RESIDING AT SOUTH ANNARA, TIRUR P.O., TIRUR TALUK. 4. KAVARODI IYYACHUMMA, W/O.AAPARAMBIL HAMSA, AGED 47 YEARS, AAPARAMBIL VEEDU, NORTH ANNARA, TIRUR P.O., MALAPPURAM DIST. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R2 SRI.VINOD RAVINDRANATH FOR R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.218 of 2008 -------------------------------------- Dated this the 15th day of October, 2009. JUDGMENT Respondent No.2 appears through counsel. 2. This Second Appeal arises from judgment and decree of learned Sub Judge, Tirur in A.S.No.88 of 2000 reversing judgment and decree of learned Munsiff, Tirur in O.S.No.149 of 1998. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 3. Short facts necessary for disposal of this appeal are: Plaintiff sued for partition and separate possession of 8/30 shares in the suit property. He claimed that plaint B schedule property was purchased in the name of himself, defendant Nos.1 to 3 and their father, Abdulla as per document No.8 of 1965. On the death of Abdulla, his share also devolved on plaintiff and defendant Nos.1 to 3. Thus, he is entitled to get 8/30 shares. Since defendants refused to effect partition he came to the court. Defendant No.2 contended that there was an oral partition of the suit properties even during the life time of the father (Abdulla) in the year 1972 between himself, plaintiff and defendant Nos.1 to 3 and shares were allotted to each of them. Of the share allotted to the father (Abdulla), he gave three cents to his second wife, Achumma as per Ext.B5, document No.2531 of 1976. In the year 1989 Achumma assigned the said three cents to defendant No.2 as per Ext.B2, document No.592 of 1989. The RSA No.218/2008 2 rest of the property belonging to Abdulla was assigned to defendant No.2 as per Ext.B1, document No.253 of 1976. Thus, defendant No.2 is in separate possession and enjoyment of 16 ¼ cents where he has constructed a building. He has also improved the said property spending substantial amount. Defendant No.5 also relied on the oral partition in the year 1972 and claimed that plaintiff and defendant Nos.1 to 3 assigned their shares to the mother of defendant No.5, Beevi Umma and her husband as per Ext.B6, assignment deed No.1447 of 1976. On the death of Beevi Umma, her share devolved on her children, defendant No.5 and Kadheeja. The share of the father was given to defendant No.5 as per Ext.B7, release deed No.578 of 1990. The share of Kadheeja was released to defendant No.5 and her husband as per Ext.B9, release deed No.1760 of 1992. Thus, defendant No.5 and her husband are in possession of that part of the suit property. They also claimed that title if any of the plaintiff is lost by adverse possession and law of limitation. Learned Munsiff did not accept the plea of oral partition set up defendant Nos.1 and 2, found against the plea of adverse possession and directed partition. Accordingly a preliminary decree for partition was passed. Defendant No.5 took up the matter in appeal. First appellate court on a consideration and appreciation of the entire evidence found in favour of the oral partition and non-suited appellant/plaintiff. Hence this Second Appeal. In the memorandum of Second Appeal, following questions are raised by way of substantial questions of law: RSA No.218/2008 3 i. Whether adverse inference could be drawn against defendants as they have not examined any one who claims to be aware of the oral partition between the parties? ii. Whether a document could be admitted as proved when no steps have been taken by the party who produced it to prove execution when the same is disputed by the other party? iii. Whether a replication or rejoinder is necessary to contravene the contentions in the written statement, when the same has been specifically pleaded in the plaint itself? 4. crux of the issue is whether there was an oral partition in the year, 1972 as pleaded by defendant Nos.2 and 5. To prove the oral partition defendant Nos.2 and 5 have relied on Exts.B1 to B10 series. Of them, Exts.B5 and B6 are of the year, 1976. Ext.B5 is executed by late Abdulla, father of plaintiff and defendant Nos.1 to 3 in favour of his second wife, Achumma. Ext.B6 is the document executed by plaintiff and defendant Nos.1 to 3 in favour of Beevi Umma, mother of defendant No.5 and her husband. Other documents relied on by defendant Nos.2 and 5 are Exts.B2, B7 and B9. Concededly Exts.B1 and B2 were executed at a time when Abdulla was alive. In Ext.B1, Abdulla himself refers to the oral partition of the year, 1972 and parties taking RSA No.218/2008 4 separate possession and enjoyment of the shares allotted to them. Similar recitals are made in Exts.B1, B2, B7 and B9. All these registered documents referred to oral partition of the year, 1972 and the sharers taking separate possession of the portions allotted to them. It is also seen from the documents and evidence of defendant Nos.2 and 5 that pursuant to that oral partition and separate possession, they have taken possession of the portions allotted to them and are in separate enjoyment of the same by paying revenue. Son of defendant Nos.2 has given evidence as DW1. DW2 is the husband of Defendant No.5. 5. Oral partition and the documents above referred are pleaded by defendant Nos.2 and 5 in the written statement. It is true that in the absence of a counter claim or set off set up in the written statement there is no obligation on the part of the plaintiff to file a rejoinder or replication but, it is not as if plaintiff could not even in the absence of counter claim or set off file a subsequent pleading the only requirement for that being that leave of the court has to be obtained. In a suit of this nature defendant Nos.2 and 5 when set up an oral partition and produced a number of registered documents right from the year, 1976 onwards the plaintiff was expected to file a rejoinder in case he denied execution of the said documents. That has not been done. That apart, there is evidence adduced by defendant Nos.2 and 5 regarding execution of the documents. I also bear in mind that the documents of title referred by defendant RSA No.218/2008 5 Nos.2 and 5 are registered in accordance with the provisions of the Registration Act and, though registration by itself is not proof of due execution it raises an initial presumption regarding genuineness of the document. Documents contain the certification by the Registrar concerned that the formalities for registration are complied with. First appellate court has found in favour of due execution of the documents. There is no reason to think that even during the life time of the father (Abdulla) and from 1976 onwards defendant Nos.2 and 5 and Abdulla should speak about an oral partition which according to the plaintiff (alone) did not take place and based on that oral partition enter into various transactions in respect of the portions of the suit properties. It is in the circumstances that first appellate court came to the conclusion that oral partition set up by defendant Nos.2 and 5 is true. I must also bear in mind that though the said properties were acquired by plaintiff, defendant Nos.1 to 3 and their father as per document No. 8 of 1965, plaintiff did not think of seeking separate possession and partition of the property till 1998. That means for about 33 years, plaintiff did not think of demanding partition and separate possession. It is quite unlikely that if the property was not partitioned in the meantime plaintiff would have allowed joint possession to continue for about 33 years and other co-owners constructing their own buildings in the property and in the year 1998, reminded of his right plaintiff came to the court to seek partition. That also reinforces contention of defendant Nos.2 and 5 regarding oral partition. First appellate RSA No.218/2008 6 court has considered and appreciated the evidence in correct perspective and come to the proper conclusion. Finding of first appellate court is one on facts. When the first appellate court has decided the case on facts High Court could interfere in Second Appeal only when the finding is supported by no evidence or the finding is perverse. No such situation arises in this case. None of the questions urged in the Second Appeal do arise for consideration as substantial questions of law. Resultantly this Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks