IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 RSA.No. 440 of 2009() --------------------- AS.119/2003 of DISTRICT COURT, PALAKKAD OS.912/1998 of .MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/PLAINTIFF ----------------------------- CHAMUNDESWARI, W/O.LATE SUBARAMAN, RESIDING AT 13/229, KALVAKULAM, KOPPAM AMSOM, PALAKKAD TALUK. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.C.A.ANOOP RESPONDENTS/RESPONDENTS/DEFENDANTS/SUPPLENTAL DEFENDANTS --------------------------------------------------------------------------------------- 1. RAJAMMA, W/O.LATE NACHUMUTHU. 2. RAJAMMA, W/O.LATE KRISHNASWAMY. 3. RANGARAJAN, S/O.LATE KRISHNASWAMY. 4. VIJAYALAKSHMY, D/O.LATE KRISHNASWAMY, ALL ARE RESIDING AT KALVAKULAM, KOPPAM AMSOM, PALAKKAD TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 440 of 2009 ---------------------------------------- Dated this the 6th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 119/2003 on the file of the District Court Palakkad, which arises from the judgment and decree in O.S. No. 912/1998 on the file of the Munsiff court, Palakkad. The trial court jointly tried O.S. No. 912/1998 and the connected suit i.e O.S. No. 237/1999. O.S. No. 912/1998 was dismissed and O.S. No. 237/1999 was decreed. O.S. No. 912/1998 was filed by the appellant herein and O.S No. 237/1999 was filed by the respondents herein. The plaintiff in O.S. No. 912/1998 on the file of the Munsiff Court, Palakkad is the appellant herein. The lower appellate court confirmed the trial court's common judgment and decree in both suits. Hence the second appeal. The parties hereinafter referred to as plaintiffs and defendant as arrayed in O.S. No.237/1999. 2. O.S. No. 912/1998 is a suit for partition and separate possession whereas O.S. No. 237/1999 is a suit for recovery of possession on the strength of title. Both sides adduced oral and documentary evidence PW1, DWs 1 and 2.,were examined and Exts. A1 to A8 and B1 to B8(b) were marked. The trial court taken O.S No. 237/1999 as the lead case and the evidence was recorded in that suit. R.S.A. 440 of 2009 -2- 3. After considering Exts. A1 to A8, especially Ext.A4 and considering the falsity of the documents produced by the defendant and referring to Ext.B3 series, B4, B5 series , B6, and B8 series the trial court concluded that the case put forward by the defendant is entirely baseless and false, that the plaintiff has obtained Ext..A4 purchase certificate which shows that he has got title over the property and that no reason is stated by defendant as to why no action was taken to cancel or file objection against the purchase certificate. The trial court declared plaintiffs' title over plaint B schedule property and further declared that they are entitled to get recovery of possession of plaint B schedule property from the defendant. In the light of the findings arrived, in O.S. No. 237/1999, the trial court declined the prayer for partition in O.S. No. 912/1998 and held that plaint A and B schedule properties are not partible and that the plaintiff is not entitled to claim any share over the property. 4. The plaintiff and the 2nd defendant in O.S. No. 912/1998 challenged the decisions of the trial court before the lower appellate court in appeals. The judgment of the lower appellate court in A.S. No.119/2003 which was filed by the defendant is under challenge. The lower appellate court agreed with the findings of the trial court, finding that deceased Krishnaswamy (1st plaintiff in O.S. No. 237/199) obtained purchase certificate regarding plaint schedule property in his personal R.S.A. 440 of 2009 -3- capacity and as such he is the absolute owner of the property . The lower appellate court also found that there is absolutely no evidence to prove that either Nancha Pandaram or Kuppuswamy Pandaram had got any right interest or possession over the plaint schedule property. If that be so, the plaint A schedule property is not partible as found by the learned Munsiff. Admittedly, the plaint B schedule property where DW1 resides is a portion of plaint A schedule property. The lower appellate court also observed that the defendant has no subsisting right over the property and as such he is liable to vacate the premises and surrender possession of the property. 5. The learned counsel for the defendant/appellant challenged the findings of the court below and contended that placing reliance on Ext.A4 purchase certificate, which stands in the name of deceased Krishnaswamy(1st plaintiff in O.S. No. 237/199), as conclusive evidence to establish the title, is wrong and liable to be interfered with. other contentions are also raised in this Second Appeal The reasonings and findings of the trial court which were confirmed in appeal are based on the facts circumstances and oral and documentary evidence adduced by the parties. I am of the view that the lower appellate court re-appreciated and re-examined the entire evidence in the right perspective. No questions of law much less any substantial question of law arises for consideration in R.S.A. 440 of 2009 -4- this appeal. There is no scope for invoking Section 100 of the C.P.C. This appeal fails and accordingly dismissed in limine. 6. The learned counsel for the defendant/appellant submitted that the defendant is an age-old lady having no other property and she is put to untold and severe hardships, if she was asked to vacate the premises immediately. Hence the learned counsel requested for a reasonable time to vacate the premises. I find that there is some force in that submission . In the circumstances , a period of one year is granted to the defendant for vacating the premises subject to the condition that the defendant shall file an undertaking in the form of an affidavit before the trial court/execution court, unconditionally agreeing to vacate the premises within the period allowed by this court. The affidavit as above, shall be filed by the defendant within six weeks from today. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 440 of 2009 ---------------------------- JUDGMENT 6th July, 2009