IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 SA.No. 811 of 1995(E) --------------------- AS.87/1992 of DISTRICT COURT, THRISSUR OS.1106/1987 of III ADDL. M.C.,THRISSUR .................... APPELLANT(S): APPELLANTS:PLAINTIFFS: ----------------------------------------------------------------- 1. NALINI, D/O. THALOKARAN THUNDAMMA, THALOKKARAN HOUSE, KOZHUKULLY VILLAGE, THRISSUR DISTRICT. 2. VINODINI, D/O.THUNDAMMA, THALOKKARAN HOUSE, KOZHUKULLY VILLAGE AND DESOM, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S): RESPONDENTS:DEFENDANTS: -------------------------------------------------------------------------- 1. MATHU ALIAS MADHAVI, W/O. PANKUNNY, PERINGAD HOUSE, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. PANKUNNY, S/O.KOCHUNNY, PERINGAD HOUSE, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI V.G.SANKARAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ...2.... SA.NO.811/1995 J U D G M E N T No representation. The Second Appeal is dismissed for default. 18/05/2010 Sd/- P.Bhavadasan, Judge Order on C.M.P.No.730/1998 in S.A.No.811/1995 Dismissed 18/05/2010 Sd/- P.Bhavadasan, Judge /True Copy/ P.A.to Judge kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 811 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of June, 2010. JUDGMENT Aggrieved by the concurrent findings against them, the plaintiffs have come up in appeal. 2. According to the plaintiffs the plaint schedule property belonged to one Thundamma, the mother of the plaintiffs. She is no more and the plaintiffs are in possession and enjoyment of the property. They are residing in the house situate in the property. The defendants have no rights over the property. The defendants had instituted a suit, O.S. 248 of 1982 before the Munsiff's Court, Trichur for partition of 39 cents of property in the same survey number lying on the northern side of the plaint schedule property. It is claimed by the plaintiffs that the property involved in the two suits are entirely different and belonged to different S.A. 811/1995. 2 persons in jenm. Apprehending trespass from the part of the defendants, the suit was laid. 3. The defendants resisted the suit. They pointed out that the suit is without any bonafides. According to them, the purchase certificate is a concocted document. They put up a contention that the property belonged to the mother of the defendants and they are in possession of the property. On the death of their mother, her legal heirs are in joint possession of the property. In O.S. 248 of 1982 a preliminary decree has already been passed by the trial court. When the final decree proceedings were taken, it is contended that the plaintiffs obstructed the Commissioner, who had come to measure the property and to make allocation of the properties. Pointing out that the suit lacks bonafides, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 3 and the documents marked as Exts.A1 to A3(5). The defendants had D.Ws. 1 and 2 examined and Exts. B1 S.A. 811/1995. 3 and B2 marked. Exts. C1, C1(a) and C1(b) are the commission report and plan. 5. On an evaluation of the evidence in the case, the trial court came to the conclusion that the property involved in the suit was the same property involved in O.S. 248 of 1982. It is also found that the plaintiffs in this suit were parties to the partition suit and they remained ex-parte and suffered a decree. It was also found that there was no attempt on the side of the plaintiffs to show that the property involved in the suit was not the property involved in the partition suit. Based on those findings, the suit was dismissed. 6. The matter was carried in appeal as A.S.87 of 1992 before the District Court, Thrissur. The lower appellate court on an independent evaluation of the materials before it found that the claim of the plaintiffs that the properties involved in the two suits are different cannot be accepted on the basis of the evidence of the Commissioner also. The deposition of the Commissioner, who was examined as S.A. 811/1995. 4 D.W.2, would show that the property involved in this suit and the partition suit are the same. Finding that, the appellate court confirmed the judgment and decree of the trial court. 7. Learned counsel appearing for the appellant would contend that the courts below were not justified in holding that the plaintiffs have not proved their case. The plaintiffs have produced Ext.A2, which is the purchase certificate issued by the appropriate Land Tribunal. According to learned counsel, Ext.A2 is conclusive going by Section 72K of the Kerala Land Reforms Act. It is contended that unless the purchase certificate is set aside through the process of law, no claim can be made. It is also pointed out that the jenmi in respect of the suit property is totally different from the jenmi in respect of the property involved in the partition suit filed by the defendants. These aspects have been omitted to be noticed by the court below and therefore the judgment and decree are bad in law. S.A. 811/1995. 5 8. One cannot omit to note that the plaintiffs were parties to the partition suit, O.S. 248 of 1982. For the reasons best known to them, they had chosen not to appear and they were set ex-parte. It is seen that a preliminary decree was passed and final decree proceedings are going on. In order to establish the contention of the defendants that the property involved in the partition suit and in this suit are identical, they caused production of Exts.C1 and C1 (a) and had D.W.2, the commissioner in the partition suit examined. Inspite of the specific contention taken by the defendants that the property involved in the partition suit and in this suit are same, there was no effort on the side of the plaintiffs to have the property properly identified and demarcated. 9. Both the courts below have relied on Exts.C1 and C1(a) and also the evidence of the Commissioner to come to the conclusion that the property involved in the partition suit and in this suit are the same. S.A. 811/1995. 6 10. In the light of the above set of facts, the issue as to whether purchase certificate has any impact does not have any significance in the case. The plaintiffs have suffered a decree in respect of the property in a properly instituted suit, to which they were parties. They have not challenged the decree in the partition suit and that has become final. If as a matter of fact the plaintiffs had a case that they had obtained purchase certificate and the property belong exclusively to them, they have to agitate the same in the partition suit itself. Having not done so, it comes with little grace from the plaintiffs that they an ignore the preliminary decree and can rely on the purchase certificate obtained by them evidenced by Ext.A2. 10. The courts below have concurrently found that the property involved in this suit and the partition suit are identical and that is essentially a finding of fact. No substantial question of law arises for consideration in this Second Appeal. S.A. 811/1995. 7 This Second Appeal is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb. S.A. 811/1995. 8 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 811 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 03.06.2010