IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 RSA.No. 503 of 2009() --------------------- AS.13/2004 of I ADDL. DISTRICT COURT, PALAKKAD OS.17/1994 of MUNSIFF COURT, CHITTUR .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------- MUTHUKALI AMMAL W/O. CHINNASWAMI KOUNDER, CHUNNAMBUKALTHODE, THENAMPATHY VILLAGE,CHITTUR TALUK,PALAKKAD DIST. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/RESPONDENTS/DEFENDANTS ------------------------------------------------------------------ 1. KARUPPATHAL W/O. KRISHNASWAMI KOUNDER, ANUPUR KALAM, OZHALAPATHY VILLAGE, CHITTUR TALUK. 2. SIVAKAMI, W/O. KARUPPASWAMI, . KARADIKUNNU KALAM, ATTAYAMPATHYM, MUTHALAMADA, CHITTUR TALUK, PALAKKAD DIST. 3. SELVAKUMARASWAMI KOUNDER, S/O. KRISHNASWAMI KOUNDER, ANUPUR KALAM, OZHALPATHI VILLAGE, CHITTUR TALUK. 4. CHINNAPPAN @ MARIMUTHU, S/O. KRISHNASWAMI KOUNDER,ANUPUR KALAM, OZHALAPATHY VILLAGE, CHITTUR TALUK. 5. ARUMUGHAM, S/O. KRISHNASWAMI KOUNDER, ANUPUR KALAM, OZHALAPATHY VILLAGE, CHITTUR TALUK. 6. KARUPPASWAMI KOUNDER, S/O. NANCHAPPA KOUNDER, ANUPUR KALAM, OZHALAPATHY VILLAGE, CHITTUR TALUK. 7. ARUCHAMI KOUNDER S/O. NANJAPPA KOUNDER, ANUPUR KALAM, OZHALAPATHY VILLAGE, CHITTUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1128 OF 2009 IN R.S.A NO. 503 OF 2009 DISMISSED HARUN-UL-RASHID, JUDGE 13.07.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 503 of 2009 ---------------------------------------- Dated this the 13th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 13/2004 on the file of the District Court, Palakkad which arises from the judgment and decree in O.S. No. 17/1994 on the file of the Munsiff's Court,Chittur. The suit for partition was dismissed finding that the plaintiff has no right over the plaint schedule property and therefore the plaintiff is not entitled for partition or separate allotment of her share. The trial court's judgment and decree was confirmed in appeal by the lower appellate court. Hence the Second Appeal. The parties hereinafter referred to as plaintiff and defendants as arrayed in the Suit. 2. The plaintiff and the defendants are the legal heirs of Nanjappa Gounder . Out of the 7 defendants, defendants 1 to 5 are the legal heirs of one late Krishnaswamy Gounder who was the eldest brother of the plaintiff. Nanjappa Gounder has enjoyed two items of properties out of which 33 acres were his leasehold properties and the remaining 8 acres (Plaint schedule Property) were his jenmom properties. The subject matter of the suit is regarding the partition of 8 acres (Plaint schedule property) which the said Nanjappa Gounder holding as jenmom properties According to the plaintiff the plaint schedule property is kept without effecting partition. So the plaintiff filed the suit for partition by metes and R.S.A. No. 503 of 2009 -2- bounds partition of the plaint schedule property and for separate possession of her ¼ th share with future share of profits. 3. According to the contesting defendants the entire 41 acres of land were partitioned among the children of Nanjappa Gounder during 1972 and that partition was an oral partition . Subsequent to that oral partition, it is alleged that the sharers hold their respective shares separately and obtained separate purchase certificates with reference to the leasehold properties obtained by them by way of partition. The contesting defendants further stated that the plaintiff's share was entirely out of the leasehold properties and she was not allotted any portion in the jenmam properties. According to them the plaintiff is in enjoyment and possession of her share of property as the absolute title holder. 4. The trial court examined all the questions raised by the parties on the basis of the oral evidence tendered by PWs 1 to 3 , DWs 1 to 4 and documentary evidence namely Exts. A1 to A3 , B1 to B22 and Exts. X1 and X1(a). 5. The trial court after elaborately discussing the entire evidence and perusing Ext.X1(a) concluded that there was an oral partition in between the legal heirs of Nanjappa Gounder and in pursuant to that oral partition the plaintiff obtained purchase certificate for her share from the Land Tribunal concerned. The trial court noted that the contesting defendants' version to the effect that while effecting oral partition the entire share of the plaintiff was set apart for her was comprised in the leasehold properties. The trial court further held that there is no reason to R.S.A. No. 503 of 2009 -3- believe that the sharers have partitioned only the leasehold properties and kept the jenmam properties without effecting partition. So the court below rightly concluded that the plaintiff as well as other legal heirs had acted in furtherance of oral partition of the Nanjappa Gounder's property and that there cannot be any property left available for partition which was originally owned by Nanjappa Gounder. 6. The plaintiff challenged the findings of the trial court in A.S. No. 13/2004 The lower appellate court also on the basis of the very same evidence on record agreed with the findings of the trial court and held that the contesting defendants have succeeded to establish that there was an oral partition of the properties which belonged to Nanjappa Gounder, among his legal heirs and that in that partition the plaint schedule properties and the leasehold properties belonging to Nanjappa Gounder were partitioned. The lower appellate court also considered all the contentions raised by the plaintiff before the trial court, and upheld the decision of the trial court. The most contested issue in the suit is as to whether the oral partition set up by the contesting defendants is true or not. The questions whether there was an oral partition in the year 1972 and the further question whether the plaint schedule property was included in the said partition were elaborately discussed and rightly decided against the plaintiff by the courts below. I am of the view that the said questions were answered by the courts below by taking correct decisions on the basis of R.S.A. No. 503 of 2009 -4- evidence on record I find no reason to interfere with the findings entered by the courts below which are based on facts, evidence and circumstances. A different view is not possible in the given circumstances. No grounds are made out in this appeal to invoke my jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this Appeal. Accordingly this appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 503 of 2009 ---------------------------- JUDGMENT 13th July, 2009