IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 SA.No. 360 of 1995() -------------------- AS.155/1990 of ADDL.DISTRICT COURT-II,MAVELIKKARA OS.241/1985 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANT/RESPONDENT/PLAINTIFF: ----------------- VARGHESE VARGHESE, ATTUPURATHU VEEDU, MATTRAM VADAKKUM MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA. BY ADV. SRI.TKM.UNNITHAN SRI.P.G.GANAPPAN RESPONDENTS/ADDL. APPELLANTS 2 AND 3 BEFORE THE ADDL.DISTRICT COURT, ------------------ MAVELIKKARA (lEGAL REPRESENTATIVES OF DECEASED ORIGINAL APPELLANT. 1. A.S. JACOB, S/O. SAMUEL, ATTUPURATHU VEEDU, MATTAM VADAKKUM MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA. 2. A.S. VARGHESE, S/O.SAMUEL, ATTUPURATHU PUTHEN VEEDU, ANJILIPRA MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA. (DIED) (THE IST RESPONDENT IS RECORDED AS THE LEGAL REPRESENTATIVE OF THE DECEASED 2ND RESPONDENT, IN THE LIGHT OF ANNEXURE-I REGISTERED RELEASE DEED NO.1949 OF 1997 OF THE SUB REGISTRY OFFICE, MAVELIKKARA AS PER ORDER DTD. 5/11/2008 IN I.A.NO.1877/2008) ADV. SRI.G.UNNIKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- S.A.NO.360 OF 1995 ---------------------------- DATED THIS THE 21ST DAY OF MAY, 2009 JUDGMENT Plaintiff in O.S.No.241/85 on the file of the Munsiff's Court, Mavelikkara is the appellant herein. This appeal is directed against the judgment and decree dated 24/2/1994 in A.S.No.155/90 on the file of the Additional District Court-II, Mavelikkara. 2. Plaintiff filed the suit for partition of the plaint schedule property into two equal shares and for allotment of one such share to him. The trial court passed a preliminary decree for partition of the plaint schedule property in two equal shares and to allot one such share to the plaintiff. The preliminary decree passed by the trial court was reversed by the Lower Appellate Court and dismissed the suit. 3. Plaintiff is the son of defendant's elder brother -2- S.A.No.360/95 Chacko Varghese. Plaint schedule property and the shop building therein originally belonged to Sri Varghese Chacko, who is the grandfather of the plaintiff and father of the defendant. According to the plaintiff, on the death of Varghese Chacko, the property devolved on defendant and plaintiff's father Chacko Varghese. The plaint schedule property and the shop building therein have been in the joint possession of the defendant and plaintiff's father. The undivided half share of his father was gifted in favour of the plaintiff and according to him, he and the defendant are in joint possession and enjoyment of the property. 4. The defendant contended inter alia that the properties of the defendant's father, Varghese Chacko have been divided during his life time itself. Defendant and plaintiff's father are keeping separate possession and enjoyment of the properties got allotted to them as per the oral partition. Plaint schedule property was allotted to the defendant's share and he is in exclusive possession of the same. According to the defendant, -3- S.A.No.360/95 the properties allotted to the plaintiff's father have been again divided and given to his children, who have constructed buildings therein. Plaintiff has executed the gift deed by misrepresenting his father and his father had no right or authority to execute such a gift deed. It is not disputed that the plaint schedule property having an extent of 16 cents is only one item of property owned and held by the plaintiff's grandfather. It is also not disputed by the plaintiff/appellant that all the properties except the plaint schedule property have been partitioned and are being enjoyed by the sharers separately. The defendant had produced a copy of the judgment in O.S.No.210/85 marked as Ext.B9. That was a suit between the same parties. Plaintiff herein is the plaintiff in the said suit, which was filed for permanent injunction restraining the defendant from alienating the plaint schedule property without affecting partition and separate possession. In Ext.B9 judgment the court below recorded the admission of PW-1 who is none -4- S.A.No.360/95 other than the plaintiff in that suit and in the present suit that the entire properties belonged to his grandfather were partitioned and separated into two and the same is enjoyed as per the said oral partition. The trial court also recorded further deposition of PW- 1 in that case that his father did not file any suit for partition because he had satisfied with what he obtained. It is true that in Ext.B9 judgment the court observed that it is not proper to discuss in total about the rights of parties at this stage. The relief of injunction was declined for the reason that the plaintiff has not succeeded in proving the possession over the property and the building therein. The court below also came to the conclusion in that case that the plaintiff's father and the defendant are enjoying the property as per the oral partition. 5. There is no explanation on the part of the plaintiff for not partitioning the plaint schedule property alone, when all other items of properties are partitioned. It was also come out in evidence as rightly noticed by the Lower Appellate Court that the -5- S.A.No.360/95 shop building in the plaint schedule property had been let out by the defendant. In fact the said fact is admitted by the plaintiff. The Lower Appellate Court also noticed the fact that the plaintiff was not aware of the rate of rent. Plaintiff also admitted that the building tax of the shop room is being paid by the defendant. He has no case that his father was in joint possession of the plaint schedule property along with the defendant. He has no case that his father ever received his share of the rent from the plaint schedule properties. The Lower Appellate Court concluded that there is no evidence to this case to show that prior to Ext.A1 gift deed, father of the plaintiff had ever claimed his share of the income from the plaint schedule property or he was ever in joint possession and enjoyment of the property along with the defendant. The plaintiff himself in cross examination deposed that except this property the rest of the properties belonged to his grand father were partitioned into two and that his father and the defendant are in enjoyment of the properties in pursuance to that -6- S.A.No.360/95 partition. The Lower Appellate Court also noticed the fact that there is satisfactory evidence to conclude that all the items of properties belonging to Varghese Chacko were in fact partitioned as contended by the defendant and that each of the sharer is in separate possession and enjoyment of the respective shares. If that be the position, the plaintiff shall explain as to why this item of property alone is not partitioned. There is no explanation from his side. In the facts and circumstances of the case discussed above, the Lower Appellate Court concluded that the properties belonging to Sri Varghese Chacko were in fact partitioned between the plaintiff's father and the defendant. After appreciating the evidence on record, the Lower Appellate Court concluded that there is absolutely no evidence in this case to show that the plaintiff's father had any manner of right over the plaint schedule property and that he was in joint possession and and enjoyment of the plaint schedule along with the defendant. In such circumstances, the Lower Appellate Court rightly -7- S.A.No.360/95 concluded that the plaint schedule item is an item, which was the subject matter of partition along with other properties of the parties and therefore the plaintiff is not entitled to the relief of partition. The Lower Appellate Court appreciated the facts in the right perspective and set aside the judgment and decree passed by the trial court. The decision taken by the Lower Appellate Court is based on facts. No question of law much less any substantial questions of law arise for consideration in this appeal. The Second Appeal lacks merit and therefore, it is dismissed. No order as to costs. HARUN-UL-RASHID, Judge. kcv.