IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 SA.No. 575 of 2001() ------------------------- AS.81/1999 of I ADDL.DISTRICT COURT, ERNAKULAM OS.333/1996 of II ADDL.M.C., ERNAKULAM .................... APPELLANT(S): DEFENDANT'S LEGAL REPRESENTATIVE ----------------------------------------------------------------- ADIMA, D/O. MULLA, AGED 63, VYMEETTIPARAMBIL VEEDU, NADAMA DESOM, NADAMA VILLAGE, KANAYANNOOR TALUK. BY ADV. SRI.R.SREERAJ RESPONDENT(S):RESPONDENTS/PLAINTIFFS ----------------------------------------------------- REMANI RAJAN, D/O. CHATHAN, AGED 45 YEARS, THOTTEPARAMBIL HOUSE, S.M.P. COLONY, EROOR DESOM, THRIPPUNITHURA, KANAYANNOOR TALUK. ADV. SRI.VARGHESE C KURIAKOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO. 1296/2001 IN S.A. NO. 575/2001 DISMISSED 24/01/2011 SD/- HARUN-UL-RASHID, JUDGE /TRUE COPY/ P.A. TO JUDGE svs HARUN-UL-RASHID, J. ------------------------ S.A.No.575 Of 2001 ---------------------- Dated this the 24th day of January, 2011. J U D G M E N T The following substantial questions of law are formulated at the time to admission of the appeal: a) Whether the certificate of purchase issued by the Land Tribunal in favour of the respondent's husband Rajan in O.A.No.263/1970 is legal, since the respondent's husband's mother, Mulla was in possession of the property from long time past as the original kudikidappukari of the plaint schedule property and whether the alleged purchase certificate without the junction of Mulla is valid. b) Since the defendant in O.S.No.33/1996 has raised the contention that she is the original kudikidappukari, is not the trial court bound to refer the matter to the concerned Land Tribunal and to get a verdict from the Land Tribunal in respect of that matter. c) Can a land lord enter into an agreement under Section 80A of the Kerala Land Reforms Act with Rajan who was a minor at the time of filing the above said application before the Land Tribunal. d) Is the alleged agreement under Section 80A the Kerala Land Reforms Act is vitiated by fraud and collusion. 2. Legal heirs of the defendant in O.S.No.333 of 1996 on the file of the II Additional Munsiff Court, Ernakulam are the ::2:: S.A.No.575 Of 2001 appellants. The appeal is directed against the judgment and decree in A.S.No.81 of 1999 on the file of the First Additional Sub Court, Ernakulam. Suit was filed for partition and injunction. The trial court decreed the suit and a preliminary decree for partition of the plaint schedule property by metes and bounds into two equal shares and allotment of one half share to the plaintiff and one half to the defendant separately was passed and permanent prohibitory injunction was issued restraining the defendant from committing any act of waste till partition is effected and separate possession of plaintiff were allowed. The counter claim preferred by the defendant stands dismissed. The parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff claimed one half of the property as the legal heir of the deceased husband of Sri.Rajan. The sole defendant in the suit is admittedly, Rajan's mother. The plaint schedule property is 10 cents in survey No.1292/2 of Nadama village. According to the plaintiff the property belonged to Sri.Rajan, her husband, that Rajan died on 18.1.1995, that Rajan died intestate leaving behind his wife and aged mother. She claimed partition of one half share over the property. ::3:: S.A.No.575 Of 2001 3. The defendant contested the suit mainly raising two grounds. The defendant contented that the plaintiff is not the legally wedded wife of deceased Rajan. She also contended in the counter claim filed that certificate of purchase issued in favour of Rajan was obtained as a result of the practice of fraud and collusion. The trial court as well as the appellate court considered the contentions raised by the defendant. Both courts on facts found that the defendant failed to plead and prove the fact of fraud and collusion, and therefore the defendant is not entitled to a decree setting aside the order of the Land Tribunal. Both courts considered the question as to whether the defendant has specifically pleaded fraud or collusion and whether there is sufficient proof in support of the pleadings. Both courts on facts found that the pleadings are very vague, not in accordance with law and further held on fact that the evidence adduced by the defendant is not sufficient to conclude that there is fraud or collusion. The second question as to the status of the plaintiff was also considered in detail by the fact findings courts. Both courts concurrently on evidence held that the plaintiff is the legally wedded wife of Rajan. ::4:: S.A.No.575 Of 2001 4. The decree passed by the courts below based on the aforesaid findings is challenged in the second appeal. As I said earlier, the fact finding courts examined the contentions and on facts held that the plaint schedule property is identifiable. The issues raised were answered in favour of the plaintiff. The questions now raised in the second appeal are questions of fact which were decided on the basis of evidence on record. In the circumstances, I find that the appellant has not made out any valid grounds for interference by this Court in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure. No question of law muchless any substantial question of law arises for consideration in the second appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-