IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 RSA.No. 1083 of 2008(D) ---------------------- AS.31/2006 of SUB COURT, PALA OS.26/2002 of MUNSIFF COURT, PALA .................... APPELLANTS – APPELLANTS – DEFENDANTS 1 TO 3 AND 5 TO 13:- -------------------------------------------------------------------------- 1. PARUKUTTY, AGED 72 YEARS, W/O.RAGHAVAN, KURUMAKAL HOUSE POVARANY P.O., VILAKUMADOM KARA, POOVARANY VILLAGE, MEENACHIL TALUK. 2. THANKAMANI, AGED 43 YEARS W/O.APPU, CHITTEPARAMBIL HOUSE VECHOOR KARA, VACHOOR VILLAGE, VAIKOM TAUK. 3. RAMANI, AGED 40 YEARS, D/O.RAGHAVAN, KURUMAKKAL HOUSE, POOVARANI PO., VILAKKUMADOM KARA POOVARANI VILLAGE, MEENACHIL TALUK. 4. SUJATHA, AGED 33 YEARS, D/O.RAGHAVAN, KURUMAKKAL HOUSE, DO.DO. 5. SHAJI, AGED 32 YEARS, S/O.RAGHAVAN, OF DO.DO. 6. SABU, AGED 30 YEARS, S/O.RAGHAVAN, OF DO.DO. 7. SHALAN, AGED 28 YEARS, S/O.RAGHAVAN OF DO. 8. SUBHDRA, AGED 27 YEARS, D/O.RAGHAVAN OF DO. 9. GAYATHRI, AGED 26 YEARS,D/O.RAGHAVAN OF DO. DO. R.S.A. No. 1083/2008 : 2 : 10. KAUSALYA, AGED 25 YEARS, D/O.RAGHAVAN OF DO. DO. 11. RENUKA, AGED 23 YEARS D/O.RAGHAVAN, OF DO. DO. 12. SATHYAVATHI, AGED 21 YEARS, D/O.RAGHAVAN, OF. DO.DO. BY ADV. SRI.C.K.VIDYASAGAR SRI.T.I.ABDUL SALAM RESPONDENT -RESPONDENT – PLAINTIFF:- ------------------------------------------------- SUKUMARAN, AGED 74 YEARS, S/O.KOCHUKUNJU KURUMAKKAL HOUSE, VILAKUMADOM KARA, ELIKKULAM VILLAGE, KANJIRAPPALLY TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 1083 of 2008 ========================= Dated this the 14th day of January, 2009. JUDGMENT Defendants 1 to 3 and 5 to 13 in O.S. No. 26 of 2002 on the file of the Munsiff's Court, Pala are the appellants in this Second Appeal. The said suit was one for partition and separate possession of the plaintiffs' half share over 3.49 acres of property situated at Elikkulam in Kottayam district. The plaintiff Sukumaran alleged that the plaint schedule property is part of 6.79 acres acquired jointly by him and his elder brother Raghavan as per Ext.A1 patta dated 05.04.1977 and since 3.30 acres out of 6.79 acres was the subject matter of another litigation, the balance extent of 3.49 acres was included in the present plaint for partition. The plaintiff further alleged that after the death of Raghavan on 27.02.2001 his widow and children who are defendants 1 to 13 are in joint possession along with the plaintiff of the plaint schedule property. 2. The suit was resisted by the defendant contending inter alia as follows:- There was another family property admeasuring 2.38 acres belonging to Raghavan and Sukumaran, the plaintiff. As R.S.A. No. 1083 of 2008 : 2 : per Ext.A5 partition dated 29.08.1998 Raghavan and the plaintiff partitioned the said 2.38 acres and 1.38 acres described in the A schedule to Ext.A7 was allotted to Raghavan and one acre of land described in the B schedule thereto was allotted to the plaintiff. Thereafter, on 27.08.1998, the two brothers entered into a family arrangement as per which Raghavan agreed to sell his 1.38 acres of property and to pay a further amount of Rs.4 lakhs to the plaintiff in return for the plaintiff's half right over 6.79 acres and the plaintiff was put in possession of 1.38 acres. The plaintiff who was thus in possession of the entire 3.28 acres, had constructed a building in the 1.38 acres surrendered by Raghavan. Since the plaintiff had surrendered his half right to Raghavan over the 6.79 acres of which the plaint schedule property is a portion, the suit is liable to be dismissed. 3. On the side of the plaintiff, three witnesses were examined as Pws 1 to 3 of whom PW1 is the plaintiff himself and Ext.A1 to A8 were marked. On the side of the defendants, the 6th defendant was examined as DW1. No documentary evidence was adduced by the defendants. R.S.A. No. 1083 of 2008 : 3 : 4. The learned Munsiff as per judgment and decree dated 20.12.2004 passed a preliminary decree for partition as prayed for after holding that the defendants failed to prove the family arrangement and the arrangements set up in the written statement. On appeal preferred by the defendants as A.S. No. 31 of 2006 before the Sub Court, Pala, the learned Subordinate Judge as per judgment and decree dated 16.08.2008 dismissed the appeal. Hence this Second Appeal. 5. The following are the questions of law formulated in the memorandum of Second Appeal:- A. Whether the courts below are justified in ignoring the importance of a family arrangement which is entered into between the members of a family for the benefit and security of the members and to honour the pride of the family? B. Whether the court below is bound to follow the directions of the superior court in matters relevant for the effective decisions of the questions involved in the case? C. Whether the court below is justified in rejecting a document which proves a family arrangement having all the features of a memorandum entered after the arrangement? 6. The learned counsel appearing for the appellants made the following submissions before me in support of the appeal:- Since the original of the agreement dated 27.08.1998 evidencing the family arrangement was in the custody of the R.S.A. No. 1083 of 2008 : 4 : plaintiff, the appellants had produced a Photostat copy of the same and the trial court had refused to receive the same in evidence. After the defence evidence was over, the appellants had filed I.A. No. 2039 of 2004 for reopening the evidence for the purpose of examining witness No. 1 in their witness schedule. The said witness was a witness to the document evidencing the family arrangement and a medical certificate was also produced showing that the said witness had cardiac problem. The trial court had dismissed the said application on 13.12.2004 and a preliminary decree was passed on 20.12.2004. The defendants filed W.P.(C) No. 695 of 2005 challenging the order passed in I.A. No. 2039 of 2004. But the writ petition was permitted to be withdrawn with liberty to canvass the correctness of the order passed in I.A. No. 2039 of 2004 in appeal. Even though the appellants had canvassed the correctness of the said order before the lower appellate court, the same has not been considered by the lower appellate court. Before the lower appellate court, the appellant had also sought reception of the report of the Advocate Commissioner filed in a subsequent suit by the appellants against the plaintiff R.S.A. No. 1083 of 2008 : 5 : seeking specific performance of the agreement dated 27.08.1998. The said report of the Advocate Commissioner would show that the plaintiff was not only in possession of one acre of land allotted to him under Ext.A5 partition, but was also in possession of 1.38 acres allotted to his brother Raghavan thereby probabilising the family arrangement set up by the appellants. But the lower appellate court did not accept the said report and the appeal was disposed of with the available evidence. When there is evidence to show that the plaintiff is in possession of the 1.38 acres of land allotted to Raghavan and he has also constructed a residential house thereon soon after the family arrangement, the courts below were not justified in passing a preliminary decree whereby an undue advantage has been derived by the plaintiff. 7. I am afraid that I cannot agree with the above submissions. Admittedly, 6.79 acres of land including the plaint schedule property belonged to the plaintiff and his elder brother Raghavan as per Ext.A1 patta. The plaint schedule property admeasuring 3.49 acres is part of the said property. Sine the balance 3.30 acres was involved in another litigation R.S.A. No. 1083 of 2008 : 6 : it was not included in the plaint schedule. Thus, the plaintiff would naturally have half right over the plaint schedule property. The claim for partition was resisted on the ground that there was a family arrangement on 27.08.1998 as per which Raghavan agreed to sell 1.38 acres obtained by him under Ext.A5 partition in addition to making a payment of Rs. 4 lakhs to the plaintiff in return for a surrender by the plaintiff of his half right over 6.79 acres to Raghavan. It was further contended by the appellants that pursuant to the family arrangement, the plaintiff who was already in possession of one acre of land allotted to him under Ext.A5 partition, obtained possession of 1.38 acres also and he had constructed a house thereon and had started residing therein. The original of the document evidencing the family arrangement was not produced by the appellants. According to them, the plaintiff was in custody of the original. But no foundation had been laid by the appellants for the reception of secondary evidence by calling upon the plaintiff to produce the original Photostat copy of the deed of family arrangement. The document was, therefore, rightly refused to be received in evidence. The R.S.A. No. 1083 of 2008 : 7 : appellants also failed to adduce corroborative evidence to substantiate the plea of family arrangement. They could have taken out a commission to prove that the plaintiff was in possession of 1.38 acres belonging to Raghavan and had put up a residential building thereon. That was also not done. It is after the closing of the defence evidence that I.A. No. 2039 of 2004 was filed for reopening the evidence. The said application was rightly dismissed by the trial court on 13.12.2004. The lower appellate court cannot be found fault with in not permitting the reception of additional evidence in appeal having regard to the rigour and restriction under Order 41 Rule 27 C.P.C. The report of the Advocate Commissioner produced in a suit filed in the year 2008 by the appellants against the plaintiff for specific performance of the document evidencing family arrangement allegedly executed on 27.08.1998, also could not be received in evidence in the appeal to substantiate the appellants' contention that a family arrangement had been entered into between Raghavan and the plaintiff on 27.08.1998. The findings recorded by the courts below are after evaluating the oral and documentary evidence R.S.A. No. 1083 of 2008 : 8 : in the case. It is a pure finding of fact. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 14th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 1083 of 2008 : 9 :