IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 RSA.No. 93 of 2007(C) -------------------- AS.169/2003 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR OS.313/2001 of M.C.,VADAKKANCHERRY .................... APPELLANT/APPELLANT NO.1/DEFENDANT NO.1: --------------------------------------------------------- ANTHYALAN, S/O. PARYANI, VADAKKUM KOTTAPADI, PULAKODE VILLAGE, DESOM. BY ADV. SRI.P.VIJAYA BHANU SRI.M.GEORGE THOMAS RESPONDENTS/ RESPONDENTS/APPELLANT NO.2/PLAINTIFFS & DEF.NO.2: ------------------------------------------------------------- 1. NEELI, D/O. DECEASED KORAN & PARYANI, PULATHODE VILLAGE, VADAKKUM KOTTAPPADI, THALAPPALLY TALUK. 2. KOCHEE, D/O. DECEASED KORAN & PARYANI, PULATHODE VILLAGE, VADAKKUM KOTTAPPADI, THALAPPALLY TALUK. 3. KURUMBA, D/O. DECEASED KORAN & PARYANI, PULATHODE VILLAGE, VADAKKUM KOTTAPPADI, THALAPPALLY TALUK. 4. MANGODI, D/O. DECEASED KORAN & PARYANI, PULATHODE VILLAGE, VADAKKUM KOTTAPPADI, THALAPPALLY TALUK. 5. NEELI, W/O. DECEASED AYYAPPAN, RESIDING IN POTTAMKODE DESOM, PAZHAYANNUR VILLAGE. 6. SUNDARAN, S/O. DECEASED AYYAPPAN, RESIDING IN POTTAMKODE DESOM, PAZHAYANNUR VILLAGE. (CNTD...) RSA.No. 93 of 2007(C) -2- 7. GIRIJA, D/O. DECEASED AYYAPPAN, RESIDING IN POTTAMKODE DESOM, PAZHAYANNUR VILLAGE. 8. SUNDARI, D/O. DECEASED AYYAPPAN, RESIDING IN POTTAMKODE DESOM, PAZHAYANNUR VILLAGE. 9. PRASANNA, D/O. DECEASED AYYAPPAN, RESIDING IN POTTAMKODE DESOM, PAZHAYANNUR VILLAGE. 10. CHAMI, S/O. PARYANI, RESIDING IN POTTAMKODE DESOM, PAZHAYANNUR VILLAGE. BY ADV. SRI.G.SREEKUMAR (CHELUR) FOR R10 SRI.K.N.PADMAKUMAR FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ==================== R.S.A.No.93 of 2007 =========================== Dated this the 18th day of September, 2008. J U D G M E N T The 1st defendant in O.S.No.313/2001 on the file of the Munsiff's court, Wadakkanchery, is the appellant in this second appeal. The substantial questions of law formulated at page 6 of the memorandum of second appeal are the following: 1) Whether courts below have failed to find that the earning of the appellant/1st defendant were spent to modify the house from deterioration and therefore it is not partiable? 2) Whether the courts below have failed to notice that the appellant herein/1st defendant who had constructed the house has undividable right over the house than the other co-owners? 3) Whether the courts below have failed to appreciate that the appellant/1st defendant constructed the house using his own money, even though the plaintiffs admit that they have no objection to given the house to the 1st defendant after valuation of the same? 4) Whether tharavadu house is partiable? R.S.A.No.93 of 2007 2 5) Whether tharavadu house belongs to a person who had spent money to save it from deterioration? 2. O.S.No.313/2001 was filed by 9 persons seeking partition and separate possession of their 5/7 share over one item of plaint schedule property admeasuring 24¾ cents. 3. The proved facts as concurrently found by the courts below are the following:-. The plaint schedule property belonged to one Paryani as per Ext.A1 registered deed dated 21.7.1982. Paryani's husband, Koran, had predeceased her. Paryani died about 22 years prior to the institution of the suit. Koran and Paryani had seven children. They were Ayyappan, who died 20 years prior to the suit and defendants 1 and 2 who are the male children and plaintiffs 1 to 4 who are the female children. Plaintiffs 5 to 9 are the legal heirs of deceased Ayyappan. Plaintiffs 1 to 4 and 5 to 9 together claimed 5/7 shares over the property. The suit was resisted by the 1st defendant. His only contention was that the house in the plaint schedule property was constructed by him and he therefore claimed a reservation of the said house without any R.S.A.No.93 of 2007 3 valuation. The courts below concurrently allowed the plaintiff's claim and passed a preliminary decree for partition as prayed for. With regard to the claim of the appellant/1st defendant regarding the house, it was found that apart from the fact that he did not mount the witness box or adduce any defence evidence, the evidence already in record was to the effect that the house was constructed by Paryani. 4. In the face of this concurrent finding of facts by the courts below, the appellant is not entitled to claim any reservation of the house without any valuation in his favour. None of the questions of law formulated in the memorandum of appeal arises for consideration in the second appeal which is accordingly dismissed. V.RAMKUMAR JUDGE. bkn/-