IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 AFA.No. 14 of 1999 -------------------------- AGAINST THE JUDGEMENT IN AS.431/1991 Dated 04/06/1998 OS.354/1984 OF THE PRL.SUB COURT,THRISSUR .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------ VARGHESE ALIAS VAREED, S/O.PARAYIL ALIAS CHITTILAPPILLY INASU, THOLOOR VILLAGE, PARAPPOOR DESOM, THRISSUR TALUK. BY ADV. SRI.M.P.KRISHNAN NAIR RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------------------------------------------------- 1. FRANCIS, S/O.PARAYIL ALIAS CHITTILAPPILLY INASU, THOLOOR VILLAGE, PARAPPOOR DESOM, THRISSUR TALUK. 2. DAVIS, S/O. DO. DO. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10.02.2009, THE COURT ON 12/03/2009, DELIVERED THE FOLLOWING: P.R.Raman & P.S.Gopinathan, JJ. ================================== A.F.A.No.14 of 1999 ================================== Dated this the 12th day of March, 2009. JUDGMENT Gopinathan, J. 1.This is the sixth round of litigation in between brothers, which started as early as in 1996. The appellant and the respondents are the children of late Inasu. The appellant herein is the plaintiff in O.S.No.354 of 1984 on the file of the Subordinate Judge, Thrissur. Originally, he instituted a suit as O.S.No.492 of 1976 before the Munsiff's Court, Thrissur against the respondents seeking a decree of permanent prohibitory injunction. That suit was dismissed against which an appeal as A.S.No.128 of 1981 was preferred before the District Court, Thrissur. That appeal was also dismissed. The appellant therefore preferred a second appeal before this Court as S.A.No.871 of 1981. That appeal was AFA14/99 -:2:- also dismissed. While dismissing the appeal by this Court, there was an observation that the appellant is not forbidden from instituting a suit on title. In the light of that observation, the appellant instituted O.S.No.354 of 1984 before the Principal Subordinate Judge, Thrissur. There are four schedule of properties, namely A,B,C & D. A schedule contains 14 items. Seeking a decree for recovery of possession of plaint A schedule properties, a decree for permanent prohibitory injunction restraining the respondents from interfering with the possession of the appellant over the B schedule properties and for partition of C and D schedule properties, the suit was instituted. It was contended by the appellant that his father, late Inasu executed Ext.A1 agreement on 16-6-1960 relating to Item Nos.1 to 6 of A schedule and Ext.A2 agreement dated 22-1-1976 relating to Item Nos.7 to 14 of the plaint schedule properties agreeing to convey AFA14/99 -:3:- them to the appellant and that the appellant was put in possession of A schedule properties and thus he had been in absolute possession and enjoyment of plaint A schedule properties, but his possession was found against and that plaint B schedule properties belonged to one Paily, who is the brother of Inasu and that the daughters of Paily had taken divine oath and that Kochu Devassy, the only son of Inasu died during his school days and that the appellant had been looking after Paily and that Paily who had been ailing was got treated by the appellant and out of love and affection, Paily, to whom the plaint B schedule properties belonged, put the appellant in possession of the same in June, 1960 and that thereafter the appellant had been in absolute possession and enjoyment of plaint B schedule properties. It was further contended that the plaint C and D schedule properties are the common properties of the appellant and respondents and AFA14/99 -:4:- are liable to be partitioned and the appellant is entitled to one third share over plaint C and D schedule properties. 2.The respondents jointly contested the suit. They denied the execution of Exts.A1 and A2 by their father late Inasu. They denied the entrustment of the plaint B schedule properties to the appellant by late Paily. According to the respondents, plaint A, B and C schedule properties belonged to late Inasu, Devassi and Paily and they executed Wills as Document Nos.72/75 and 73/75 bequeathing their properties in favour of the appellant and respondents and on their death the appellants and respondents had been in possession and enjoyment of the plaint A, B and C schedule properties and that the plaint D schedule movables belong to the respondents and their wives and that the appellant is not entitled to any decree for recovery of AFA14/99 -:5:- possession, injunction or partition and prayed for dismissal of the suit with costs. 3.The learned Subordinate Judge, upon looking the pleadings, raised as many as ten issues and the parties were sent for trial. The appellant and two others were examined as P.Ws.1 to 3. On the side of the respondents, the first respondent was examined as D.W.1. Exts.A1 to A98 were marked on the side of the appellant. Exts.B1 to B20 were marked on the side of the respondents. Ext.C1 series were marked as court exhibits. The learned Subordinate Judge, on appraisal of the evidence, arrived a finding that the appellant failed to establish any title, right or possession over the plaint schedule properties so as to entitle him to get the reliefs sought for. Consequently, the suit was dismissed with costs. 4.Assailing the judgment and decree dismissing the AFA14/99 -:6:- suit, appeal, A.S.No.431 of 1991 was preferred before this Court. The learned single Judge by judgment and decree dated 4-6-1998 arrived a finding that the case in hand is nothing but old wine in new bottle and that barring the formal outfit of the title suit, the contentions of the parties remain the same. Consequently, the appeal was dismissed. Assailing the above judgment and decree, this intra-court appeal was preferred under Section 5 of the Kerala High Court Act, 1958. 5.The points that arise for consideration are:- (1) Whether the appellant is entitled to a decree for recovery of possession of plaint A schedule properties? (2) Whether the appellant is entitled AFA14/99 -:7:- to a decree for prohibitory injunction in respect of the plaint B schedule properties? (3) Whether the appellant is entitled to a decree for partition of plant C and D schedule properties? Points 1 to 3 6.The appellant had raised as many as 23 grounds in the appeal memorandum. All the grounds relate either to the appraisal of the evidence or the finding regarding title or the denial of the reliefs sought for by the appellant. There is no specific whisper in the appeal memorandum that either the trial court or the learned single Judge had, while concluding against the appellant, gone perverse or that any of the findings is either illegal or causing mis- AFA14/99 -:8:- carriage of justice. In the above circumstances, we find that a full-fledged re-appraisal of the evidence in an intra-court appeal is not warranted as against the concurrent finding. 7.The appellant claims title over the plaint A schedule properties on the strength of Exts.A1 and A2, the execution of which was denied by the respondents. Regarding execution of Exts.A1 and A2, there is oath against oath. Though the appellant had sent Exts.A1 and A2 for expert opinion and opinion was brought on record, the expert was not cared to be examined. As a result, there is no supporting evidence. The failure to examine the expert is very fatal. In this background, the learned Subordinate Judge arrived a finding that the appellant failed to establish the execution of Exts.A1 and A2. The learned single Judge, on appraisal of the evidence, confirmed the finding of the trial AFA14/99 -:9:- court. We find that either the trial court or the learned single Judge had noway erred in appreciating the evidence in finding the title against the appellant. No alternate conclusion is possible with the available evidence. 8.Though the very case of the appellant is that he was put in possession of the A schedule property as early as 1960 or 1976, the prayer for recovery of possession itself would show that the plea of possession is devoid of truth. That plea was found against the appellant, in the earlier round of litigation. The appellant in the box would depose that there is no additional evidence after the disposal of the first round of litigation. Since it is the case of the appellant that he was put in possession of the properties in pursuance of the alleged agreements, once it is admitted that the appellant is not in possession of the properties and when there is no plea or evidence AFA14/99 -:10:- regarding dispossession, it had to be presumed that no action was initiated in pursuance of the agreements, if any was executed. Here execution of the agreements is denied and there is no convincing proof. Even if any agreement for conveyance as alleged is executed, it would not amount to a title to enable the appellant to seek a decree for recovery of possession. Probably, there may be cause for specific performance, which is not at all sought for. 9.Though the appellant claimed that he obtained plaint B schedule properties in the year 1960 from late Paily and had been in absolute possession and enjoyment of the plaint schedule properties, there is little material coming forward to show that there was any such handing over possession of B schedule properties by late Paily. Admittedly, the appellant has no title. His claim of possession is independent of title. AFA14/99 -:11:- We were taken to the evidence at length by the learned counsel for the appellant. There is oath against oath. We find little reason to arrive a conclusion that either the trial court or the learned single Judge had anyway erred in arriving a concurrent finding against the appellant. We are unable to arrive an alternate conclusion. 10.As regards plaint C and D schedule properties, there is no material to come to the conclusion that those properties are partible. 11.In the plaint it is vaguely stated that 'C' schedule property belonged to Paily and is partible. If that is so, all legal heirs of Paily are entitled to succeed. No evidence is adduced to show that 'C' schedule properties are partible. Whereas P.W.1 had deposed that it is in his possession. If it is so, so long as there is no claim by any other persons, the appellant AFA14/99 -:12:- has no cause of action. Even if the plea of the appellant is believed, the appellant is not a Class I heir, but his claim is in the absence of Class I heirs and the children of Ouseph, another brother of Inasu and three sisters of the appellant are entitled to share over 'C' schedule. But none are on record. The appellant is not entitled to claim one out of three shares. As regards the exact share, there is lack of pleadings and evidence. In declining partition, the trial court took note that majority of sharers are off record and there is no good reason for not impleading them. That is also a valid reason. The lower court has elaborately discussed the evidence and arrived a finding against the appellant. The learned single Judge found no reason to interfere. We find little reason to disturb the concurrent findings. 12.The appellant would contend that 'D' schedule AFA14/99 -:13:- properties are joint properties. Whereas the respondents would contend that those movable items belong to them. There is claim and counter claim. There is oath against oath. Admittedly, those items are in the possession of the respondents. Preponderance of probability is in favour of the respondents that those items belong to them. To sum up, on a re-appraisal, we find that there is little material to disturb the concurrent findings under challenge. Points found accordingly. In the result, the appeal fails. Accordingly it is dismissed with costs. P.R.Raman, Judge. sl. P.S.Gopinathan, Judge. AFA14/99 -:14:- P.R.Raman & P.S.Gopinathan, JJ. ================================== A.F.A.No.14 of 1999 JUDGMENT Dated: