IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 RSA.No. 871 of 2003() --------------------- AS.79/2001 of DISTRICT COURT, KASARAGOD O.S.NO.75/1995 OF SUB COURT, KASARAGOD APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 3 ------------------------------------------------------------------------- 1. S.K. NARAYANA 2. T.S. DAMODARA. BOTH ARE CHILDREN OF SUBRAYA. NO.1 IS RESIDING AT PAYYAR DARKAS HOUSE IN KALATHUR VILLAGE AND POST, UDUPI TALUK (D.K.) NO.2 IS RESIDING AT DELI HOUSE IN CHEMNAD VILLAGE KASARAGOD TALUK, P.O. PARAVANADUKKAM. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT(S): RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 AND 4 TO 6 --------------------------------------------------------------------------------------------------------------- 1. S.K.RAMAKRISHNA 2. K.RAMANNA ) )CHILDREN OF SUBRAYA 3. P.S.SHRIDHARA ) 4. SMT.PADMAVATHI ) 5. T.UMMER, S/O.ABDULKHADER NOS. 1 AND 2 ARE RESIDING AT THAYATHOTTIL HOUSE IN CHEMNAD VILLAGE, KASARAGOD TALUK P.O. PARAVANADUKKAM. NO.3 IS RESIDING AT NEAR GOKUL DIARY, URVA STORE, ASHOK NAGAR, MANGALORE-6 (D.K.). NO.4 IS WIFE OF RAMAKRISHNA, RESIDING AT BIDKAL KATTE IN MOLAHALLI VILLAGE, KUNDAPUR TALUK, P.O. BIDKAL KATTE. NO.5 IS RESIDING AT DELI JUNCTION IN CHEMNAD VILLAGE, KASARAGOD TALUK, P.O.PARAVANADUKKAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 871 OF 2003 =========================== Dated this the 24th day of October,2011 JUDGMENT Defendants 1 and 3 in O.S.75/1995 on the file of Sub Court, Kasaragod are the appellants. First respondent is the plaintiff and other respondents the other defendants in the suit. Suit was filed for partition of plaint A schedule property contending that it originally belonged to the parents of the appellants and respondents and on their death, it devolved on them and they are in joint possession of the property and it is to be divided equally among the sharers. Only the fifth defendant filed a written statement contending that plaint A schedule property was partitioned by a registered partition deed of 1988 and at the time of actual division, all the sharers were present and after division and RSA 871/2003 2 preparation of the partition deed, respondents 1 and 2 refused to sign the document or appear before the Sub Registrar and the properties have allotted thereunder were taken possession of the respective sharers and therefore it is not available for partition. 2. Learned Sub Judge on the evidence of PW1, Dws. 1 and 2, Exts.A1 to A4, B1 to B3 found that plaint schedule property originally belonged to the parents of the appellants and respondents and on their death, appellants and respondents are entitled to equal share. Though fifth defendant was examined and Ext.B1 partition deed was marked, it was found that as the partition deed was not executed by all the sharers, it is not binding on others and therefore the plaint schedule property is to be divided. A preliminary decree was passed. A.S.79/2001 was filed before the District Court, Kasaragod challenging the preliminary decree along with I.A.664/2001, an application under section 5 of the Limitation Act to condone the delay. RSA 871/2003 3 Learned District Judge dismissed the application for condonation of delay and consequently dismissed the appeal also. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 5. Appellants did not file a written statement before the learned Sub Judge. It is not disputed that the plaint schedule property originally belonged to the parents of the appellants and the respondents and on their death it devolved on them equally. Learned Sub Judge passed a preliminary decree directing division of the property. Appellants who did not raise any contention before the trial court, filed the appeal after an inordinate delay without showing sufficient cause for the delay. Learned District Judge rightly dismissed the application and consequently RSA 871/2003 4 dismissed the appeal also. In such circumstances the appeal is dismissed as no substantial question of law is involved in the appeal. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006