IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 RSA.No. 839 of 2007() --------------------- AS.56/2004 of DISTRICT COURT,KOZHIKODE OS.240/2000 of ADDL.MUNSIFF COURT, KOZHIKODE-II .................... APPELLANT/RESPONDENT/DEFENDANT ---------------------------------------------------------- VAZHAYIL GANGADHARAN, AGED 74, S/O ANDI, 12/455, VAZHAYIL HOUSE, THENIKKADUPARAMBA, NADUVATTOM AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): APPELLANT/PLAINTIFF ------------------------------------------------------------ V.SAVITHRI, AGED 68, D/O PARAYIL AMMUNNI @ MANIKKUTTI, HOUSE NO.12/474, THONIKHADU PARAMBA, NADUVATTOM AMSOM AND DESOM, KOZHIKODE TALUK. ADV. SRI.ANIL SIVARAMAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2011,ALONG WITH RSA NO. 837 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 837 & 839 OF 2007 =========================== Dated this the 6th day of September,2011 JUDGMENT Defendant in O.S.240/2000 on the file of Munsiff Court II(A), Kozhikode who is the plaintiff in O.S.808/1998 on the file of the same court is the appellant. Respondent in R.S.A.839/2007 his wife is the plaintiff in O.S.240/2000 and the respondents in R.S.A.837/2007 are the defendants in O.S.808/1998. O.S.240/2000 was filed seeking a decree for partition and allotment of one half share due to the respondent in the plaint schedule property. O.S.808/1998 was filed by the appellant claiming a decree for permanent prohibitory injunction restraining the respondents in RSA 837/2007 from trespassing into the plaint schedule property. Plaint RSA 837 & 839 of 2007 2 schedule property is the same in both the suits. Respondents in RSA 839/2007 sought partition of the plaint schedule properties contending that under Ext.A1 mortgage assignment deed dated 10.5.1960 plaint schedule property was obtained by the appellant and the respondent in R.S.A.839/2007 from Gopalan Nair. Appellant is claiming exclusive right contending that respondent wife has no income and therefore though the property was purchased in her name also she has no right over the property. He claimed a decree for injunction in O.S.808/1998 against his wife and children raising the very same plea. Learned Munsiff tried both the suits together and dismissed O.S.240/2000 and granted a decree for injunction in O.S.808/1998. 2. Respondent in R.S.A.839/2007 filed A.S.56/2004 challenging the dismissal of O.S.240/2000 and along with the children filed A.S.14/2004 challenging the decree granted in O.S.808/1998. Learned District Judge on reappreciation of the evidence found that the property was purchased jointly by the appellant and RSA 837 & 839 of 2007 3 respondent his wife and therefore both the appellant and the respondent are having equal right in the plaint schedule property and appellant is therefore not entitled to the decree granted in O.S.808/1998 and respondent is entitled to a decree for partition separating her share from the share of the appellant. Both the appeals were allowed and the decree in O.S.808/1998 was set aside and the suit was dismissed. A preliminary decree for partition in O.S.240/2000 was passed directing division of the plaint schedule property into two equal shares and allotment of one share to the respondent. The appeals are filed challenging the decree passed by the District Judge. 3. Learned counsel appearing for the appellants and the respondents who appeared as notice before admission was ordered were heard. 4. The only question for consideration is when the plaint schedule property was purchased jointly by the appellant and respondent under Ext.A1 assignment deed, whether appellant could claim exclusive right in derrogation of the rights RSA 837 & 839 of 2007 4 of the respondent available under Ext.A1. Though learned Munsiff accepted the case of the appellant and dismissed the suit for partition and granted a decree for injunction, first appellate court considered the evidence in the proper perspective and found that respondent plaintiff in O.S.240/2000 is entitled to equal share in the plaint schedule property like the appellant. 5. On going through the judgment of the first appellate court, it is clear that first appellate court appreciated the evidence in the proper perspective and entered a correct factual finding that under Ext.A1 both appellant and his wife the respondent have equal rights. In view of the factual finding, I do not find any substantial question of law involved in the appeal. The appeals are dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006