IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 RSA.No. 379 of 2007() --------------------- AS.88/2003 of ADDL. DISTRICT COURT, VADAKARA OS.236/2002 of MUNSIFF COURT, NADAPURAM .................... : APPELLANTS/APPELLANTS/DEFENDANTS ------------------------------------------------- 1. ONTHAM MEETHAL PARKKUM, PUTHUCHALIL DEVI, D/O.CHATHU, AGED 54 YEARS, THIRUVALLOOR AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2. CHERIYARAMBATH THAZHAKUNIYIL LEELA, AGED 47 YEARS, AROOR AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V SRI.BIJU J.THADIKKAL RESPONDENTS: RESPONDENT/PLAINTIFF ---------------------------------------------- K.PATHU, D/O.MOOSA KUTTY, AGED 66 YEARS, MEETHALE KOYILOTH, KOTTAPPALLY MSOM, VALLIYAD DESOM, VADAKARA TALUK, KOZHIKODE DIST. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.834/2007 IN R.S.A.No.379/2007 1.1.2008 Dismissed Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO.379 OF 2007 =========================== Dated this the 1st day of January, 2008 JUDGMENT Defendants in O.S.236/2002 on the file of Munsiff Court, Nadapuram are the appellants. Respondent is the plaintiff. The plaint schedule property admittedly originally belonged to the family consisting of Puthuchalil Pokki, her brothers Chathu, Onakkan and Podan. Under Ext.A1 partition deed of 1949, items 4 and 5 therein were allotted to Pokki. Item No.2 and 3 were admittedly allotted to Chathu. Appellants are the legal heirs of Chathu, who was executant No.2 of Ext.A1 partition deed. Under Ext.A2 assignment deed of 1971, Pokki transferred her right obtained under Ext.A1, in favour of Kunhami who in turn assigned it in favour of respondent under Ext.A3 sale deed of 1980. Respondent claims that her half right in the property was assigned to her son Moosa in 1999 and she has been in possession of the whole R.S.A.379/07 2 property and appellants have no manner of right or possession over the property and they attempted to trespass into the property and therefore they are to be restrained by a permanent prohibitory injunction. Appellants admitted Ext.A1 partition deed as well as the right obtained by Chathu, under Ext.A1, which devolved on them as legal heirs of Chathu. What was contended by appellants was that Chathu and Pokki were having equal right over the house as per the partition and item No.5 allotted to Pokki was orally assigned in favour of Chathu by Pokki in 1950 and the said property has been in the possession of Chathu and thereafter in the possession of appellants. It was also contended that the house in that property was destroyed later and O.S.26/1971 was filed in respect of item No.2 and 3 of the partition deed allotted to Chathu against strangers and if any document is created subsequently in favour of respondent,she is not entitled to claim any right and therefore suit is to be dismissed. R.S.A.379/07 3 2. Learned Munsiff on the evidence of Pws.1 to 3 Exts.A1 to A6 and Exts.C1 to C3 granted a decree holding that respondent established her possession of the property and appellants did not establish the alleged oral assignment or possession. Appellants challenged the judgment before Additional District Court, Vadakara in A.S.88/2003. Learned Additional District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in this appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of learned counsel is that courts below did not appreciate the evidence in the proper perspective and should have found that the house in the plaint schedule property was orally assigned by Pokki in favour of Chathu and item No.5 of the property covered under Ext.A1 which was originally allotted to Pokki under the partition deed was also orally assigned to Chathu and R.S.A.379/07 4 courts below should not have granted the decree in favour of respondent. 5. On hearing the learned counsel,I do not find any substantial question of law involved in the appeal. 6. The question whether respondent established her possession of the property or not is a question of fact. The trial court on appreciation of evidence and first appellate court on reappreciation of evidence rendered a factual finding that respondent established her possession over the plaint schedule property and appellants did not establish their possession or right to the plaint schedule property. That finding of fact cannot be interfered in exercise of the powers of this court under section 100 of Code of Civil Procedure. The argument of the learned counsel appearing for appellants is that value of the property shown as Rs.200/- is in respect of the entire property and not with regard to the house alone and therefore, for the absence of a R.S.A.379/07 5 registered document case of appellants that there was an oral assignment of item No.5 of plaint schedule property or the house therein should not have been rejected by the courts below. Apart from the absence of a registered document, appellants also did not adduce any evidence to prove the alleged oral assignment. Analysing the evidence on record it was found that plaint schedule property belongs to and is in the possession of respondent. That factual finding is on the evidence on record. In such circumstance, I do not find any substantial question of law as argued by learned counsel. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006