IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 RSA.No. 960 of 2010() ------------------------------- AS.58/2007 of PRL. SUB COURT, THALASSERY OS.167/2004 of MUNSIFF COURT, THALASSERY .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------------- THAPPALLI KANNOTH BHASKARAN, S/O.LATE THAPPALLI KANNOTH KORAN, AGED 75 YEARS, RETD. RAILWAY GATE MAN, CHALIL HOUSE, EDAKKAD PANCHAYATH, WARD VI, HOUSE NO.107, NEAR VETERINARY HOSPITAL, NADAL, EDAKKAT, KUTTIKKAKAM, KANNUR DISTRICT. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENTS/RESPONDENTS/PLAINTIFF -------------------------------------------------------------- 1. THIYYARAVALAPPIL NARAYANI, D/O.LATE THAPPALLI KANNOTH KORAN, AGED 84 YEARS, THIYYARAVALAPPIL HOUSE, PERALASSERI, MUNDALLUR, KANNUR DISTRICT, PIN - 670 622. 2. THIYYARAVALAPPIL NARAYANAN, S/O.LATE THAPPALLI KANNOTH KORAN, AGED 71 YEARS, RESIDING AT PACHOTTU HOUSE, EDAKKAD, NADAL, KANNUR DISTRICT, PIN - 670 011. 3. PADINHARE KANNOTH RAGHAVAN, S/O.LATE THAPPALLI KANNOTH KORAN, AGED 69 YEARS, SHIRAG, PALLIKKULAM, CHIRAKKAL, KANNUR DISTRICT, PIN - 670 011. 4. PUTHAN PURAYIL DEVAKI, D/O.THAPPALLI KANNOTH KORAN, AGED 65 YEARS, KUNIYIL HOUSE, MAVILAYI, MOONNAMPALAM, KANNUR DISTRICT, PIN - 670 622. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/08/2010, THE COUR T ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 960 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2010. JUDGMENT Aggrieved by the concurrent finding against him, the defendant in O.S. 167 of 2004 before the Munsiff's Court, Thalassery has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Claiming that the plaintiff and defendant are co-owners of the suit property, the suit was laid for partition. The properties were acquired by Chathu Nambiar and Koran as per document No.235/1959 in a partition between them. Plaint schedule properties were set apart to the share of Koran. The plaintiffs and the defendants are the legal heirs of said Koran. Since the plaintiffs do not wish to continue the joint status, they sued for partition. R.S.A.960/2010. 2 3. The defendant resisted the suit. It is admitted that the property belonged to Koran, but the defendant had got the same on an oral gift by Koran. He claimed to be in exclusive possession and enjoyment of the same. According to him, the plaintiff has no right over the suit property. So the suit has to fail. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts. A1 to A8 from the side of the plaintiffs. The defendant examined D.W.1 and had Exts.B1 to B4 marked. On an evaluation of the evidence in the case the trial court came to the conclusion that the oral gift set up by the defendant cannot be accepted and therefore a preliminary decree was passed. The preliminary decree was confirmed in appeal. 5. Learned counsel appearing for the appellant very vehemently contended that the court below was not justified in not accepting the oral partition set up by the defendant. The relevancy of Exts. B1 and B2 have not been R.S.A.960/2010. 3 considered. Ext.B2 which is the purchase certificate is conclusive of the fact that the right, title and interest over the property covered by the purchase certificate had been assigned to the defendant and he is the full owner thereof. 6. There is no merit in the contention at all. The defendant has set up an oral gift, which is neither proved nor is acceptable. It is conceded by the defendant that the suit properties belonged to Koran and that the plaintiffs and defendant are the legal heirs of Koran. It is for the defendant to establish oral entrustment or other arrangement pleaded by him, which give exclusive right to him. The court below found that the purchase certificate is not a valid one and also that even assuming it to be valid, it enures to the benefit of all the co-owners and does not give or confer exclusive rights to the defendant. Both the courts below have taken the above view, and there are no legal or factual infirmities in the decisions taken by the courts below. R.S.A.960/2010. 4 The result is that this appeal is without merits and it is accordingly dismissed in limine. P. BHAVADASAN, JUDGE sb.