IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 AFA.No. 48 of 1994() -------------------- AGAINST THE JUDGEMENT IN AS.284/1990 Dated 02/06/1993 in OS.49/1986 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S): -------------- KURIAKOSE, S/O.VARKEY RESIDING IN PANTHALAMPADAM KANNAMBARA AMSOM, DESOM, ALATHUR, PALGHAT. BY SENIOR ADV. SRI.P.N.K.ACHAN RESPONDENT(S): --------------- POULOSE, S/O.VARKEY RESIDING IN PALTHALAMPADAM, KANNAMBRA AMSOM DESOM ALATHUR TALUK, PALGHAT. BY ADV. SRI.P.V.JYOTHI PRASAD THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- A.F.A.No.48 of 1994 ------------------------------- Dated this the 18th August, 2009 J U D G M E N T Raman, J. Plaintiff is the appellant. This appeal arises out of the judgment of the learned Single Judge in appeal suit, A.S.No.284 of 1990. The suit is one for partition instituted by the plaintiff. There were two items of property, plaint 'A' schedule and plaint 'B' schedule. The suit is decreed as against plaint 'B' schedule property, but dismissed as against plaint 'A' schedule property, upholding the contention of the defendant that plaint 'A' schedule property belongs to him exclusively. Both the plaintiff and the defendant preferred appeals. Plaintiff preferred the appeal as against the dismissal of his claim for partition regarding the plaint 'A' schedule property, and defendant filed the suit as against the decree for partition of plaint 'B' schedule property. The learned Single Judge confirmed the judgment of the court below, thus dismissed the appeal filed by the defendant as also AFA.No. 48 of 1994 2 by the plaintiff. Aggrieved by the judgment, plaintiff has preferred this appeal. 2. The short point that arise for consideration is as to whether the finding of the trial court as confirmed by the appellate court that plaint 'A' schedule property exclusively belong to the defendant is in any way legal or liable to be interfered with in an intra-court appeal filed under Section 5 of the High Court Act. 3. Plaint 'A' schedule property, according to the appellant-plaintiff was acquired by the income from the business and a building had also been constructed therein with such income. Plaint 'A' schedule property was acquired in 1972, Ext.B1 is the certificate of purchase and that was issued in the name of the defendant. Thereafter, the defendant also obtained purchase certificate from the Land Tribunal as per the provisions of the Kerala Land Reforms Act on 3.11.1976 and Ext.B2 is the said purchase certificate issued in the name of the defendant. Thus, the defendant was able to establish his case that the AFA.No. 48 of 1994 3 property was acquired by him as per Ext.B1 and subsequently obtained Ext.B2 purchase certificate also, thus sustained the his contention that the property exclusively belong to him. 4. On the other hand, the plaintiff would contend that plaint 'A' schedule property was acquired with the income derived from the business and the building was constructed with such income. Absolutely no evidence was adduced in this regard. In such circumstances, both the trial court as well as the appellate court found that the plaintiff failed to establish his case that the income from the business has been utilised for the purpose of acquiring plaint 'A' schedule property. Though this property was acquired in 1972 and a match factory was started in 1981, except the ipsi dixit of the plaintiff, there is no other evidence adduced to show that the income generated from the property has been utilised for the construction of the building. In the absence of any such evidence to substantiate the said contention, the learned Single Judge confirmed the finding of the trial court and dismissed the appeal. AFA.No. 48 of 1994 4 We have carefully gone through the judgment under appeal and perused the records. Evidence has been discussed in detail and the appellant was not able to establish that the construction of the building in plaint 'A' schedule property was using the funds from the business. So also, there is no evidence to show that plaint 'A' schedule property was purchased from out of the common funds. In such circumstances, it is a pure question of fact, as rightly held by the learned Single Judge, and no interference is called for. There is no merit in this appeal, and accordingly, this appeal is dismissed. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj. P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- A.F.A.No.48 of 1994 J U D G M E N T Dated: 18th August, 2009. -------------------------------