IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 SA.No. 593 of 2001(D) -------------------- AS.52/1997 of SUB COURT, QUILANDY OS.140/1995 of MUNSIFF COURT, KOYILANDY ............... APPELLANTS / APPELLANTS IN A.S. / PLAINTIFFS IN SUIT : ------------------------------------------------------------------------------------- 1. EDATHIL THEYYATHIRA, AGED 81 YEARS, W/O. EDATHIL ARUMA, RESIDING AT KARAD AMSOM EKKATTOOR DESOM, KOYILANDY TALUK. 2. EDATHIL GOPALAN, AGED 49 YEARS, S/O. ARUMA, RESIDING AT KARAD AMSOM EKKATTOOR DESOM, KOYILANDY TALUK. 3. EDATHIL PENNUKKUTTY ALIAS SUSHEELA, AGED 45 YEARS, D/O. EDATHIL ARUMA, RESIDING AT KARAD DESOM EKKATTOOR DESOM, KOYILANDY TALUK. 4. EDATHIL JANAKI, AGED 41 YEARS, D/O. EDATHIL ARUMA, RESIDING AT KARAD DESOM EKKATTOOR DESOM, KOYILANDY TALUK. 5. EDATHIL KAMALAM, AGED 34 YEARS, D/O. EDATHIL ARUMA, RESIDING AT KARAD DESOM EKKATTOOR DESOM, KOYILANDY TALUK. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS / RESPONDENTS IN A.S. / DEFENDANTS IN SUIT : -------------------------------------------------------------------------------------------- 1. THAYATTUMMAL KUMARAN, AGED 71 YEARS, S/O. IMBICHEKKAN RESIDING AT PERUMTHADU, KARUVANNOR AMSOM DESOM, KOYILANDY TALUK. ...2/- SA.No. 593 of 2001(D) -2- 2. THAYATTUMMAL KANDATHY, AGED 90 YEARS, S/O. IMBICHEKKAN RESIDING AT PUTHIYOTTIKANDI, NOCHAT AMSOM DESOM OF KOYILANDY TALUK. 3. THAYATTUMMAL THEYYATHIRA, AGED 80 YEARS, D/O. IMBICHEKKAN RESIDING AT KOTHERI HOUSE, KAVUMTHARA AMSOM KAVIL DESOM, KOYILANDY TALUK. 4. THAYYATTUMMAL THANIYAYI, AGED 75 YEARS, D/O. IMBICHEKKAN RESIDING AT KAVUMTHARA AMSOM, KAVIL DESOM, KOYILANDY TALUK. 5. THAYATTUMMAL J.M.KANNAN, AGED 61 YEARS, S/O. KUPPA, RESIDING AT ATHIYODI AMSOM DESOM, P.O. ATHIYODI, KOYILANDY. 6. THAYATTUMMAL CHATHUKUTTY, AGED 30 YEARS, S/O. KUNHIRAMAN, RESIDING AT KAVUMTHARA AMSOM, KAVIL DESOM, KOYILANDY TALUK. 7. THAYATTUMMAL SARADA, AGED 28 YEARS, D/O. CHANDU, RESIDING AT KAVUMTHARA AMSOM, KAVIL DESOM, KOYILANDY TALUK. R1 TO R4 & R6 BY ADV. SRI. R. PARTHASARATHY THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. --------------------------------------------- S.A.NO.593 OF 2001 --------------------------------------------- Dated 10th June, 2011 JUDGMENT Plaintiffs in O.S.140/1995 on the file of Munsiff court, Koyilandy are the appellants. Defendants are the respondents. The suit was filed for partition of the plaint schedule property contending that the property was acquired by Thayattummal Imbichekkan. Defendants 1 to 4 are his children and fifth defendant is the grand son and defendants 6 and 7 have no right in the plaint schedule property and they were impleaded only because the first defendant has created some documents in their favour. First plaintiff is the wife of deceased son of Imbichekkan and plaintiffs 2 to 5 are her children and the grand children of SA 593/01 2 Imbichekkan. It is contended that on the death of Imbichekkan plaint schedule property devolved on the plaintiffs and defendants 1 to 5 and they are in joint possession of the property and plaintiffs are entitled to get their share separated. Defendants resisted the suit contending that though the property originally belonged to Imbichekkan, subsequent to his death in 1991, there was an oral partition and entire properties were divided and a partition deed was executed, but the second plaintiff did not join in the partition deed though he was a party to the oral partition and hence the partition is binding and as the properties are divided under an oral partition the suit will not lie. 2. Learned Munsiff on the evidence of Pws.1 and 2, Dws.1 to 3, Exts.A1 and A2 and B1 SA 593/01 3 to B9 dismissed the suit upholding the oral partition, relying on the evidence of Dws.1 to 3 and failure of the plaintiffs to challenge the evidence of DW1 to the effect that the properties for the purpose of oral partition were measured by the second plaintiff and the process of partition and measurement took two days and during that period food was provided from the house of second plaintiff to the mediators and the parties and for the expenses for the partition, a tamarind tree situated in the property was cut and sold. These aspects were not challenged in cross examination of DW1. Appellants challenged judgment before Sub Court, Koyilandy in A.S.52/1997. Learned Sub Judge on re- appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed SA 593/01 4 the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. 4. Argument of the learned counsel is that though the courts below upheld the oral partition evidence, of DW.1 establish that he claims possession of the property not based on oral partition and based on Ext.B2 partition deed and Ext.B2 partition deed does not show that there was an oral partition and when plaintiffs are not parties to Ext.B2 it is not binding on him and therefore, the plaint schedule properties are available for partition. Learned counsel made available copy of the deposition of DW.1. 5. On hearing the learned counsel and going through the judgments of the courts SA 593/01 5 below, I do not find any substantial question of law involved in the appeal. If there was no oral partition as argued by the learned counsel, definitely appellants are entitled to get their share in the plaint schedule property separated. But case of the respondents, accepted by the learned Munsiff and learned Sub Judge is that there was an oral partition in 1991. To prove the oral partition, apart from the evidence of DW1 courts below relied on the evidence of DW2 mediator and DW3 scribe. Courts below found that evidence of DW1 that properties were measured for the purpose of oral partition and the measurement was by the second plaintiff and process of partition took two days time and during that period food was provided from the house of second plaintiff and towards the expenses a tamarind SA 593/01 6 tree was cut were not challenged and evidence of Dws.2 and 3 were credible and reliable. When the courts below appreciated the evidence in the proper perspective, this court cannot re-appreciate the evidence and enter a different factual finding in exercise of the powers under Section 100 of Code of Civil Procedure. The factual finding of the courts below that there was an oral partition is perfectly correct, in the light of the evidence on record. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.