IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 RSA.No. 1 of 2005() ------------------- AS.158/2002 of I ADDL. DISTRICT COURT, PALAKKAD OS.94/2001 of MUNSIFF COURT, ALATHUR .................... APPELLANT/RESPONDENT/DEFENDANT: --------------------------------------------------- VELLAKUTTY (VELLACHI), AGED 63 YEARS, W/O.THANKAPPAN, R/A.CHEMPANPULLY, KOOTTALA, KUNISSERY AMSOM, ALATHUR, PALAKKAD. BY ADV. SMT.JEENA JOSEPH SRI.G.D.PANICKER RESPONDENT/APPELLANT/PLAINTIFF: ----------------------------------- PETTAMMA, AGED 49 YEARS, W/O.MANI, VADAKKETHARA, CHENGARAM, KUNISSERY AMSOM, ALATHUR TALUK, PALAKKAD. ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A.NO.1/2005 ORDER ON I.A.NOS.2/05 & 1764/08 IN R.S.A.NO.1/2005 -------------- Dismissed 9/6/2009 Sd/- Harun-Ul-Rashid, Judge. HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.1 OF 2005 ---------------------------- DATED THIS THE 9TH DAY OF JUNE, 2009 JUDGMENT This appeal is directed against the judgment and decree in A.S.No.158/2002 on the file of the Ist Additional District Judge, Palakkad. Defendant is the appellant. The suit O.S.No.94/2001 was filed by the respondent herein for partition and separate possession of 1/2 share of the plaint schedule property. The plaintiff and defendant are daughters of late Velamma. According to the plaintiff, the plaint schedule property was acquired by her mother on verumpattom lease basis. After the death of the mother, both the plaintiff and defendant inherited the property in equal shares and therefore she claims partition and separate possession of her 1/2 share. 2. The sole defendant denied the plaintiff's claim. According to the defendant, she obtained the property on verumpattom basis from the jenmi, Sri Maniyan Chettiyar. -2- R.S.A.No.1/2005 According to her, she made improvements and constructed a house in the property and therefore she is the absolute owner of the property. According to her, her mother and the plaintiff/sister have no right over the property. 3. The plaintiff was examined as PW-1 and Exts.A1 and A2 were marked on the side of the plaintiff and the Defendant was examined as DW-1 and Exts.B1 to B3 were marked on the side of the defendant. 4. The trial court appreciated the oral and documentary evidence. The plaintiff though claimed partition stating that her mother is the title holder of the property, no evidence was let in by her to prove the title of her mother. The trial court observed that the plaintiff was not in a position to know even the details of the property and who is the jenmi of the property. In the plaint it is stated that her mother obtained the property on verumpattom basis from one jenmi and it is not stated who is the jenmi of the property or from whom she obtained the property. When she was examined as PW-1, she testified that the plaint schedule property -3- R.S.A.No.1/2005 was purchased from one Mani on payment of Rs.600/-. She also deposed that she accompanied her mother for purchasing the property. This is exactly contradictory to what she has stated in the plaint. In the absence of any proof regarding the title of the mother and taking into account the facts and circumstances, the trial court held that the plaintiff did not prove that her mother had got right and possession over the plaint schedule property and therefore the plaint schedule property is not partible. 5. In the appeal filed by the plaintiff the Lower Appellate Court also agreed with the findings of the trial court that there is neither pleading nor evidence to prove the date of acquisition, entrustment of the property or the alleged lease agreement etc. The Appellate Court observed that the plaintiff has not produced any scrap of paper in order to show that the property was originally obtained by her mother under a verumpattom lease. It is also observed that in the plaint nowhere it is stated that her mother was paid any rent to the jenmi and that as PW-1 the plaintiff has no idea about the entrustment of the -4- R.S.A.No.1/2005 property to her mother, the survey number and the actual extent of the property etc. So on facts, the Appellate Court agreed with the findings of the trial court that there is no proof to establish the title to the property by the plaintiff. But the Appellate Court reversed the finding of the trial court stating that in a suit for partition the plaintiff and the defendant are equally bound to establish their claim over the property. The Lower Appellate Court further examined the case set up by the defendant and held that the defendant also failed to establish how she came into possession of the property and as such the preponderance of probabilities stands in favour of the plaintiff. The Appellate Court rightly held that, after holding that the plaintiff failed to prove her claim for partition, the dismissal of the suit stating that the defendant failed to establish her right over the property, is not sustainable in law. The plaintiff, who is seeking relief before the court of law, had to establish that she has got right to claim reliefs as prayed for in the suit. When she failed to prove her claim by adducing evidence and when there are no reasons to -5- R.S.A.No.1/2005 hold that she has got title to the property, the finding entered by the Appellate Court granting a decree is unsustainable in law. 6. The Appellate Court is not justified in holding that not only the plaintiff but the defendant is also equally liable to prove the right over the property for granting the reliefs. The Appellate Court passed a decree for partition in favour of the plaintiff stating that the defendant has not established her right over the property. The reason stated for granting a decree is that the defendant failed to establish her right over the property. The said reason is faulty and cannot stand in the eye of law. In the circumstances, the judgment and decree passed by the Appellate Court are set aside and the judgment and decree passed by the trial court are restored. Appeal is allowed. There will be no order as to costs. HARUN-UL-RASHID, Judge. kcv. -6- R.S.A.No.1/2005