IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 RSA.No. 331 of 2009 --------------------------------- AS.148/2005 of I ADDL. DISTRICT COURT, PALAKKAD OS.284/1997 of MUNSIFF COURT, CHITTUR .................... APPELLANT/APPELLANT: MOHANDAS, S/O.VELAYUDHA PANICKER, AGED 58, KOOTHUMADATHU VEEDU, VALLANGHI VILLAGE, CHITTUR TALUK, NOW RESIDING AT MUDIKOORA, THIRUVAZHIYAD VILLAGE, CHITTUR TALUK. BY ADV. SMT.M.J.RAJASREE RESPONDENTS/RESPONDENTS: 1. VINESHKUMAR, AGED 54 YEARS, S/O.VASU, RESIDING AT KOOTHUMADATHU VEEDU, VALLANGHI VILLAGE, CHITTUR TALUK. 2. PRADEESH, AGED 46 YEARS, DO. DO. 3. RAJASEKHARAN, AGED 62 YEARS, S/O.VELAYUDHA PANICKER, DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.331 of 2009 -------------------------- JUDGMENT The plaintiff in O.S.No.284/97 on the file of the Munsiff's Court, Chittur is the appellant in this Regular Second Appeal, he having lost his case concurrently in both the courts below. The suit was instituted by him for partition of the scheduled properties, inter alia, on the allegations that the scheduled properties and other properties belonged to Velayudha Panicker, the father of the appellant/ plaintiff, the third defendant and Vasu, the father of defendants 1 and 2; that on the death of Velayudha Panicker, the properties belonging to him, excluding the scheduled properties, were partitioned as per Deed No.126/1970; that the scheduled properties are co-ownership properties and the parties are in joint possession thereof; that defendants 1 and 2 created a partition deed in respect of the plaint schedule properties stating RSA 331/09 2 that the same belong to them exclusively; that later on they have admitted that the plaint schedule items are co-ownership properties and that despite demands made by him, they are not amenable to effect a partition and to allot separate possession of his share. Hence the suit. 2. Respondents 1 and 2/defendants 1 and 2 resisted the suit contending that the appellant/ plaintiff has no title to claim partition of the scheduled properties; that it is incorrect to say that the scheduled properties belonged to Velayudha Panicker; that the properties belonged exclusively to the father of defendants 1 and 2, who is the brother of the appellant/plaintiff; that it is also incorrect to say that the scheduled properties were omitted to be included in the partition deed; that the scheduled properties are not in common ownership and joint possession of themselves and the appellant/plaintiff; that it is incorrect to say that defendants 1 and 2 admitted that the RSA 331/09 3 scheduled properties are co-ownership properties; that the appellant/plaintiff, who is on inimical terms with defendants 1 and 2, has filed the suit without any bona fides and that the suit has only to be dismissed. The third respondent/third defendant did not file any written statement. 3. On the above pleadings, the trial court raised necessary issues for trial and considering the evidence adduced at trial, which consisted of oral evidence of PWs 1 and 2 and DW1 and documentary evidence Exhibits A1 series and A2 and Exhibit B1 series to B5, dismissed the suit holding that the appellant/plaintiff is not entitled to claim partition. The appeal filed as A.S.No.148/05 before the first appellate court was also dismissed concurring with the findings of the trial court. Hence this Regular Second Appeal. 4. It is vehemently contended before me by the learned counsel for the appellant that Exhibit A1 is the certified copy of deposition given by the RSA 331/09 4 first defendant as DW1 in O.S.No.239/87 before the Munsiff's Court, Chittur, wherein, he admitted that the scheduled properties are properties belonging in common and that therefore, the courts below are not justified in having dismissed the suit refusing the relief for partition. 5. It is worthy to note that the appellant/ plaintiff is relying only on the admission made by the first defendant during cross-examination in O.S.No.239/87, when he was examined as DW1. He was examined as PW2 in the present suit and was attempted to be contradicted with his prior statements contained in Exhibit A1. He admitted that he had made those statements before court, but explained that the admissions so made in 1989 were in relation to the properties owned in common by himself and the second defendant, which was subsequently partitioned between them under Exhibit A2 partition. The learned counsel made strenuous efforts to contend that the admission was not in RSA 331/09 5 relation to the properties owned in common by defendants 1 and 2, which was subsequently partitioned between them under Exhibit A2, but in relation to the scheduled properties, which according to the appellant, belonged in common to the appellant/plaintiff, the third defendant and Vasu, the late father of defendants 1 and 2. A detailed probe into the correctness of the explanation does not deserve to be made by this Court in second appeal in the light of the admissions made by PW1 himself in his evidence tendered before the trial court, which is extracted by the trial court in paragraph 10 of the judgment. The deposition so extracted are to the effect that the scheduled property was purchased by his father Velayudha Panicker in 1945; that he is in possession of a copy of the said document and that there is no reason for his not producing that document before court. Thus, when the best evidence to establish title over the scheduled RSA 331/09 6 property, over which partition is claimed, is in the possession of the appellant/plaintiff, but without any sufficient cause to withhold that document, he does not produce it before court, he cannot bank upon the alleged admissions made by the first defendant in Exhibit A1, which were explained away by the first defendant when examined as PW2 before the trial court after remand of the case from the first appellate court in A.S.No.35/00. Obviously, for reason of non production of the document in the possession of the appellant/ plaintiff showing title over the scheduled properties as having belonged to Velayudha Panicker, as alleged by the appellant/plaintiff, adverse inference has to be drawn against him that there is no such document to establish title over the scheduled property. There is absolutely no merit in this Regular Second Appeal and there is no question of law and much less, any substantial question of law arising for consideration by this RSA 331/09 7 Court in this Regular Second Appeal. In the result, I dismiss this Regular Second Appeal in limine refusing admission. 2nd April, 2009 (K.P.Balachandran, Judge) tkv