IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 RSA.No. 143 of 2008() --------------------- AS.49/2006 of SUB COURT, HOSDRUG OS.152/2002 of MUNSIFF COURT, HOSDRUG .................... APPELLANT/APPELLANT/DEFENDANT NO.1 --------------------------------------------------- P.SUNITHA, AGED 37 YEARS, D/O. RAGHAVAN AND W/O. A.JAYARAJAN, RESIDING AT AVIKKARA, BELLA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENTS/ PLAINTIFFS AND DEFENDANTS 2 & 3 -------------------------------------------- 1. K.SURESH, S/O. RAGHAVAN, RESIDING AT MADHAVI NILAYAM, PORTHEKAI, NILESHWAR VILLAGE, HOSDURG TALUK, P.O.THAIKADAPPURAM. 2. K.ASHWATHI, W/O. K.SURESH, RESIDING AT MADHAVI NILAYAM, PORTHEKAI, NILESHWAR VILLAGE, HOSDURG TALUK, P.O.THAIKADAPPURAM. 3. K.VALSALA, D/O. K.APPU AND W/O. SASIDHARAN, RESIDING AT DREAM HOUSE, KOLAVAYAL, AJANUR VILLAGE OF HOSDURG TALUK, P.O.KOLAVAYAL. 4. K.UMESHAN, S/O. K.APPU, RESIDING AT ALAMIPALLI HOUSE, HOSDURG VILLAGE, P.O.KANHANGAD. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.380/08 IN DISMISSED 12/2/2008 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ R.S.A .NO.143 OF 2008 ------------------------------------------ Dated 12th February 2008 J U D G M E N T First defendant in O.S.152/2002 on the file of Munsiff court, Hosdurg is the appellant. Respondents 1 and 2 are plaintiffs and other respondents the other defendants. Suit was for partition. The trial court passed a preliminary decree finding that plaint B schedule property is available for partition and it is to be divided into 168 equal shares and 51 shares is to be allotted to the respondents 1 and 2, the plaintiffs and appellant is entitled to 73/168 shares and respondents 4 and 5 (defendants 2 and 3) together are entitled to the remaining 44/168 shares. Finding that the extent of plaint B schedule property is 12 cents it was directed to be sold in auction between the sharers first and if none of the parties are willing, then only by public auction and sale proceeds were directed to be divided between the sharers. Appellant challenged the judgment before Sub court, Hosdurg in A.S.49/2006. RSA 143/2008 2 Learned Sub Judge on re-appreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. 3. Argument of the learned counsel is that courts below did not properly appreciate the evidence and when appellant raised a claim based on Exts.A1 to A3 and B1 to B8 and X1, courts below should not have granted a decree based on Ext.X1 gift deed. It was argued that under Ext.B1 assignment deed dated 1/7/1996 24 cents being 1/7th share due to the widow and children of the deceased Chandan was purchased by the appellant for the purpose of constructing a road to the property of the appellant and thereafter through the said property a road was constructed and courts below should not have granted a decree for partition in respect of the said property based on the identification made by the Commissioner and when it is found that the property covered under Ext.X1 were alienated, courts below should not have granted a decree for partition of the plaint B schedule property. Learned counsel also argued that in any case when the appellant had purchased the property for valuable consideration for providing a way to his RSA 143/2008 3 property and that way was constructed courts should have at least allotted that property to the appellant without division and decree is not sustainable. Learned counsel vehemently argued that when the partition was claimed based on Exts.A1 to A3, B1 to B3 courts below should not have granted decree based on Ext.X1. 4. On hearing the learned counsel I do not find any substantial question of law involved in the appeal. Property sought to be divided in the suit is the property which originally belonged to the deceased Chandan and settled by him under Ext.X1 which is owned by the appellant as well as respondents. It is admitted case that under Ext.X1 retaining 1/7 share for himself, Chandan settled remaining 6/7 fractional share in favour of the persons named in Ext.X1. It is also admitted case that subsequently by assignment right settled under Ext.X1 was now obtained either by the plaintiffs or defendants. There is no dispute with regard to the quantum of shares fixed by the courts below. Ext.X1 shows that Chandan retained with him his 1/7 fractional share. Appellant is claiming that right under Ext.B1. Under Ext.B1 wife and children of Chandan assigned their right which was available to them in favour of the appellant. The property assigned under RSA 143/2008 4 Ext.B1 though 20.4900 cents as is clear from the document could only be the 1/7 fractional share in respect of the entire property. Under Ext.X1 properties were not divided and 1/7 share cannot be identified or sold as a particular plot. Courts below on the evidence found that under Ext.B1 appellant is not entitled to claim any exclusive right over plaint B schedule property. On the evidence it was found that plaint B schedule property is available for partition as under Ext.X1 both plaintiffs and defendants are entitled to a share. Share due to the plaintiffs is 51 shares. Appellant share is 73 and that of the defendants 2 and 3 together is 44 shares out of 168 shares. Learned Munsiff considering the fact that the property is having only an extent of 12 cents directed sale of the property in auction in between the sharers providing further that in case any of the sharer is not willing, it is to be sold in public auction and sale proceeds are to be divided. I find no substantial question of law involved in the appeal. It is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE. uj.