IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 SA.No. 773 of 2002() -------------------- AS.117/1994 of IST ADDL. DISTRICT COURT, PALAKKAD OS.159/1992 of MUNSIFF COURT, ALATHUR .................... APPELLANT(S): RESPONDENTS/DEFENDANTS 1 TO 4 & SMTY.DFTS ------------------------------------------------------- 1. THANKAMMA, W/O.APPU, POOVATHIPARAMBIL HOUSE, PARUTHIPPULLY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 2. DEVU, D/O.THANKAMMA, POOVATHINPARAMBIL HOUSE, PARUTHIPULLY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. 3. GOPINATHAN, S/O.THANKAMMA, POOVATHIN PARAMBIL HOUSE, PARUTHIPULLY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. 4. SANTHAKUMARI, D/O.THANKAMMA, POOVATHIN PARAMBIL HOUSE, PARUTHIPULLY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. 5. KRISHNAN, S/O.ARUMUGHAN, POOVATHINPARAMBIL HOUSE, PARUTHIPULLY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. 6. THATHA, W/O.LATE BALAN, POOVATHINPARAMBIL HOUSE, PARUTHIPULLY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. * ( DIED AND RECORDED) 7. RAJAN, S/O.LATE BALAN, POOVATHINPARAMBIL HOUSE, PARUTHIPULLY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. 8. DEVAKI, D/O.LATE BALAN, POOVATHIPARAMBIL HOUSE, PARUTHIPPULLY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. 9. YESODHA, D/O.LATE BALAN, ASARITHARA, ERAMANGALAM, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. SA.No. 773 of 2002() -2- * THE 6TH APPELLANT IS REPORTED TO BE DEAD AND RESPONDENTS 7 TO 9 WHO ARE ALREADY IN PARTY ARRAY ARE RECORDED AS HER LEGAL HEIRS AS PER THE ORDER DATED 4.10.2010 VIDE MEMO C.F.6982/2009. BY ADV. SRI.T.K.CHINNAN RESPONDENT(S): APPELLANTS/PLAINTIFFS. --------------------------------------------------------- 1. VASUDEVAN, S/O.VELAYUDHAN, POOVATHINPARAMBIL, PARUTHIPULLY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. ** (DIED. LEGAL HEIRS IMPLEADED) 2. THANKAMMA, D/O.VELAYUDHAN, POOVATHINPARAMBIL, PARUTHIPULLY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. 3. KOCHAMMA, D/O.VELAYUDHAN, POOVATHINPARAMBIL, PARUTHIPULLY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. 4. SHANMUGHAN, S/O.VELAYUDHAN POOVATHINPARAMBIL, PARUTHIPULLY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. 5. VIJAYAKUMARI, D/O.VELAYUDHAN, POOVATHINPARAMBIL, ALATHUR TALUK,PALAKKAD DISTRICT. ** ADDITIONAL RESPONDENTS: 6. RADHA, W/O LATE VASUDEVAN, POOVATHINPARAMBIL HOUSE, PARUTHIPULLY P.O, PALAKKAD DISTRICT. 7. RAKESH PRABHU, S/O LATE VASUDEVAN, - DO - - DO - - DO- 8. CHANDINI, D/O LATE VASUDEVAN, - DO - - DO - - DO - ** ADDL. RESPONDENTS 6 TO 8 IMPLEADED AS THE LEGAL HEIRS OF DECEASED R1 AS PER THE ORDER DATED 14.10.2009 IN I.A.777/2008. ADV. SRI.P.R.VENKETESH FOR R2 & 5 SRI.P.R.VENKETESH FOR ADDL.R6-8 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- S.A.No. 773 OF 2002 ----------------------------------- Dated 19th August, 2011 J U D G M E N T Appellants are the defendants in the suit for partition filed before the Munsiff Court. Respondents are the plaintiffs and the legal heirs of deceased first plaintiff. The suit was dismissed by Munsiff Court. Appellate court set aside the same and a preliminary decree was passed for partition of plaint schedule property by metes and bounds into four equal shares and for separate possession of respondents/plaintiffs jointly. The said decree and judgment are challenged in this appeal. 2. For the purpose of disposal of this appeal, it may not be necessary to reiterate all the facts. Plaintiffs who are the respondents 1 to 5 in this appeal filed suit for partition against appellants 1 to 6. On the death of respondent no.6, supplementary defendants 7 to 10 were impleaded. Evidence was adduced. PW1 was examined and Ext.A1 to A2 were marked on the side of plaintiffs/respondents. DW1 was examined and S.A. No.773/02 2 Ext.B1 to B5 series were marked on the side of defendants/appellants. Ext.C1 and C2 Commission Report and plan were also marked. 3. Munsiff Court found that the oral partition set up in the written statement of defendant is true. Hence the plaintiffs/respondents have no right of partition of plaint schedule property. The question of ouster and adverse possession do not arise for consideration, it was also held. In appeal, learned additional District Judge relied upon Ext.A3 and Ext.A4 mainly and held that oral partition alleged by defendants stands not proved. Therefore, a decree was granted in favour of plaintiffs. It is based on Ext.A3 and Ext.A4 mainly that above finding is entered into. 4. Learned counsel for appellant pointed out that Ext.A3 and Ex.A4 are not shown in the appendix of the judgment. Those documents were produced at the appellate stage. But, the existence of those documents was within the knowledge of respondents, during trial itself. Therefore, it was not illegal to receive those documents in evidence and rely upon the same. Learned counsel for respondent submitted that petition was filed for receiving the document, as I.A.869 of 1997 in appeal and it was based on such petition that Ext.A3 to A5 were marked. S.A. No.773/02 3 5. On hearing both sides and on going through records, I find that though I.A.869/1997 was filed before district court, the said petition was not even disposed of by the lower appellate court. No order is seen passed on the said petition. Therefore, documents which are produced along with I.A.869 of 1997 cannot be treated as evidence at the appellate stage. The lower appellate court has gone wrong in relying upon those documents as Exhibits - A3 to A5 to enter a finding against appellants, in the absence of any order being passed to receive those documents or marking the same, even without disposing I.A.869 of 1997. The relevant finding entered against appellants in the impugned judgment are therefore, vitiated since those findings were made on the basis of Ext.A3 and A4. In such circumstances, impugned decree and judgment are not legally sustainable and hence those are to be set aside. In the result the following order is passed: 1. Judgment and decree of lower appellate court are set aside. 2. Matter is remanded to the lower appellate court for fresh consideration and disposal in accordance with law, in the light of the observations made in this judgment. S.A. No.773/02 4 3. Parties shall appear before the lower appellate court on 26.9.2011. 4. The suit being one of the year 1992, preference will be given to this appeal for disposal. This appeal is allowed. K. HEMA, JUDGE. Sou.