IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 RSA.No. 43 of 2007() -------------------- AS.10/2003 of I ADDL. DISTRICT COURT, PALAKKAD OS.558/1999 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT IN R.S.A./APPELLANT NO.2 IN A.S/SUPPL. PLAINTIFF NO.2 IN O.S.: -------------------------------------------------------------------- SUBRAMANIAN, S/O.PALLIKKATTIL NARAYANAN, RESIDING AT PALLIKKATTIL, PAMPAMPALLAM, PUDUSSERY AMSOM, PALAKKAD TALUK AND DISTRICT. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.HARISH R. MENON SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON RESPONDENTS IN RSA/APPELLANT NO.1 & RES. IN A.S/PLAINTIFF NO.1 AND DEFENDANTS NO.2 TO 5 IN O.S.: ----------------------------------------------------------------- 1. SMT. VEERAMMAL, D/O. NARAYANAN, RESIDING AT PALLIKKATTIL, PAMPAMPALLAM, PUDUSSERY AMSOM, PALAKKAD TALUK AND DISTRICT. 2. SMT. MEENAKSHI, D/O. NARAYANAN, RESIDING AT PAMPAMPATTAM, PUDUSSERY AMSOM, PALAKKAD TALUK AND DISTRICT. 3. SMT. PAPPATHI, W/O. MUTHU, PARAKKOTTIL, KONGAD AMSOM DESOM, PALAKKAD TALUK AND DISTRICT. 4. SMT. LAKSHMI, D/O. NARAYANAN, PALLIKKATTIL, PAMPAMPALLAM, PUDUSSERY AMSOM DESOM, PALAKKAD TALUK AND DISTRICT. R.S.A.NO.43/2007 5. THAYU, AGED 62 YEARS, RESIDING AT PALLIKKATTIL, PAMPAMPALLAM, PUDUSSERY AMSOM, PALAKKAD TALUK AND DISTRICT. ADV. SRI.K.P.BALAGOPAL FOR R5 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON 27/10/2010 PASSED THE FOLLOWING: ORDER IN I.A.NOS.59/2007 & 749/2010 IN R.S.A.NO.43/2007 DISMISSED. 04/10/2010 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.43 OF 2007 ----------------------------------- Dated this the 27th day of October, 2010 J U D G M E N T The additional 2nd plaintiff in a suit for partition, who was transposed as such from the array of defendants, has filed this appeal challenging the preliminary decree passed by the trial court as confirmed by the lower appellate court, negativing his appeal. Sole plaintiff in the suit, one Veerammal, laid the suit seeking partition of 1/6 th share in the plaint schedule, having an extent of 30 cents, recognising the occupation over the buildings and possessory right by the respective parties, and for a perpetual prohibitory injunction restraining the 5th defendant in the suit from cutting and removing trees from the plaint property till separate possession in accordance with the shares is delivered over. The plaint property originally belonged to the father of the plaintiff and defendants 1 to 4 namely, Narayanan, and the 5th defendant is his adopted daughter, and they are residing in separate houses constructed by them in the plaint property, was the case of the plaintiff for partition admitting that R.S.A.NO.43/2007 2 all of them have equal rights, but, alleging that the 5th defendant was not amenable for division and separate possession. The defendants 1 to 4 supported the case of the plaintiff, and the 5th defendant alone resisted the suit claim. Among other contentions, the 5th defendant contended that 5 cents of property described under the plaint schedule, which has been seperately shown in her written statement, was purchased by her husband, and, later, over that property, a purchase certificate had also been issued by the Land Tribunal. The rest of the property excluding that 5 cents, according to the 5th defendant, is under the possession and enjoyment of the 1st defendant. The above said 5 cents is not partible and the suit is bad for non-joinder of necessary parties as her husband, namely, Narayanan, in whose favour the purchase certificate over the above property was issued, has not been made a party, was the case of the 5th defendant. When the suit came up for trial, no instructions being reported on behalf of the plaintiff by her counsel the present appellant/1st defendant moved an application, got himself transposed as the supplemental 2nd plaintiff, and prosecuted the suit. On the materials placed, which consisted of PW1 and R.S.A.NO.43/2007 3 Ext.A1 for the plaintiffs, DWs.1 to 5 and Exts.B1 to B3 for the contesting 5th defendant, Exts.C1 and C2 report and rough sketch prepared by an advocate commissioner, and third party exhibits summoned and exhibited as Exts.X1 to X4 series, the trial court found that 5 cents in the plaint schedule property, over which, B1 purchase certificate had been issued by the Land Tribunal in favour of the husband of the 5th defendant has to be excluded as not available for partition, and with respect to the remaining extent, partition has to be effected into six equal shares among the parties allotting them each one share, to the extent possible keeping in tact the portions of the plaint property with the building in their occupation. Feeling aggrieved by the decree and judgment of the trial court, the supplemental plaintiff, the present appellant, preferred an appeal, and the lower appellate court, after re-appreciating the materials, concurring with the conclusion formed by the trial court, finding that no interference with the decree rendered by the trial court was called for, turned down the appeal. Concurrent decision so rendered by the two courts below is challenged in the appeal. R.S.A.NO.43/2007 4 2. Challenge against the preliminary decree passed in the suit was mainly canvassed on the premise that B1 patta issued in favour of the husband of the 5th defendant does not relate to the property covered by the plaint schedule. Boundary descriptions with respect to B1 patta with that of the plaint schedule, is highlighted to contend that exclusion of 5 cents of property from the plaint schedule as if a purchase certificate had been issued over such property in favour of the husband of the 5th defendant, was patently erroneous and unsustainable under law. After going through the judgments of the courts below, I find no merit in the challenge so raised by the learned counsel for the appellant. It is noticed that no document whatsoever was produced by the plaintiff, who instituted the suit, or later, by the supplemental plaintiff, after his transposition as such from that of the 1st defendant, to claim pre-existing title or to identify the plaint property. What has been produced in the case by the plaintiff was only a rough sketch and nothing more, and on the basis of which, the suit claim for partition was canvassed alleging that such property originally belonged to the father of the plaintiff and defendants 1 to 4, and that the 5th defendant R.S.A.NO.43/2007 5 was his adopted daughter. When the suit claim was resisted by the 5th defendant contending that 5 cents out of the plaint property described had been purchased by her husband and, later, a purchase certificate was also issued in his favour with the further contention that her husband was also a necessary party to the suit, it is seen, the plaintiff did not take any steps to impeach the purchase certificate, if any, issued in favour of the husband of the 5th defendant over a portion of the plaint property. The report of the commissioner deputed by the court, prima facie indicated that the 5 cents in respect of which purchase certificate was issued in favour of the husband of the 5th defendant, which is supported by the documentary evidence tendered in the case, is comprised in and formed part of the property scheduled in the plaint for partition. The present appellant, who got himself transposed as the supplemental plaintiff and prosecuted the case, has not tendered any material to show that his father had obtained title over the 30 cents scheduled in the plaint, inclusive of the five cents of property, over which a purchase certificate had been issued in favour of the husband of the 5th defendant. The above 5 cents of property R.S.A.NO.43/2007 6 does not form part of the 30 cents scheduled in the plaint as its boundary descriptions are different from that of the plaint property, the challenge raised to impeach the correctness of the decision concurrently rendered by the two courts, in the given facts of the case, has no merit or value at all where plaintiff has not produced any material to show the pre-existing title over the property described, or for its identification. Finding concurrently entered by the courts below that the property covered by purchase certificate issued in favour of the 5th defendant, formed part of the plaint schedule property as described, which is supported by the report and sketch of the advocate commissioner, does not suffer from any infirmity. No question of law, leave alone any substantial question of law is involved in the appeal, which is found to be devoid of any merit. Appeal is dismissed directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.43/2007 7