IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 RSA.No. 622 of 2011() --------------------- AS.103/2008 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.1527/2003 of II ADDL.M.C.,TRIVANDRUM .................... APPELLANT/ APPELLANT/7TH DEFENDANT ------------------------------------------- MANIAN ACHARI, S/O. PARAMESHWARAN ACHARI AGED 53 YEARS, T.C. 21/738, NEDUMCAUD, KARAMANA.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENTS/ RESPONDENT(S): PLAINTIFFS ------------------------------------------------- 1. KRISHNA AMMA, D/O. MADHAVAI, AGED 77 YEARS, T.C. 9/1184, MELATHIL VEEDU, PULLUVILAKOM PURAYIDAM, MUDUVARAM, SASTHAMANGALAM, THIRUVANANTHAPURAM-695010. 2. K. SREEDEVI, D/O. KRISHNA AMMA, T.C.9/1184, MELATHIL VEEDU, PULLUVILAKOM PURAYIDAM, MUDUVARAM, SASTHAMANGALAM, THIRUVANANTHAPURAM-695010. Addl.respondents 3 to 11 impleaded as per order in I.A.1373/11 dt.5/7/11. 3. SADASIVAN, S/O.LATE MEENAKSHI, HINDU AGED ABOUT 71 YEARS, RESIDING AT T.C.21/717, NEDUMCAUD, KARAMANA.P.O, THIRUVANANTHAPURAM 695002 4. PREETHA, D/O.LATE MEENAKSHI, HINDU, AGED ABOUT 36 YEARS, RESIDING AT T.C.21/717, NEDUMCAUD, KARAMANA.P.O, THIRUVANANTHAPURAM 695002 5. PRIYA, D/O.LATE MEENAKSHI, RESIDING AT T.C.21/717, NEDUMCAUD, KARAMANA.P.O, THIRUVANANTHAPURAM 695002 6. PRIJI, D/O.LATE MEENAKSHI, RESIDING AT T.C.21/717, NEDUMCAUD, KARAMANA.P.O, THIRUVANANTHAPURAM 695002 7. KUTTAN @ PRADEEP, S/O.LATE MEENAKSHI, HINDU, AGED ABOUT 28 YEARS,RESIDING AT T.C.21/717, NEDUMCAUD, KARAMANA.P.O, THIRUVANANTHAPURAM 695002. 8. SUNDARAM, S/O.LATE THAI, HINDU AGED ABOUT 62 YEARS, CHITHRA NAGAR, PANGODE, THIRUVANANTHAPURAM 695609. 9. RENGAN, S/O.LATE THAI,HINDU, AGED ABOUT 50 YEARS, RESIDING AT T.C.21/738, NEDUMCAUD, KARAMANA.P.O., THIRUVANANTHAPURAM, 695002. 10. PANKAJAM, D/O.LATE THAI, HINDU LADY, AGED ABOUT 55 YEARS, RESIDING AT ROADARIKATHU VEEDU, KAMLESWARAM,, THIRUVANANTHAPURAM, 695002. 11. KANAKAM, D/O.LATE THAI, RESIDING AT ROADARIKATHU VEEDU, KAMALESWARAM, THIRUVANANTHAPURAM, 695002. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/07/2011, ALONG WITH RSA NO. 630 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ---------------------------------------------------- R.S.A.NO.622 & 630 OF 2011 -------------------------------------------------- Dated 5th July, 2011 JUDGMENT Seventh defendant in O.S.1527/2003 on the file of Second Additional Munsiff court, Thiruvananthapuram is the appellant. O.S.1527/2003 was filed by respondents 1 and 2, the mother and the daughter claiming partition and allotment of their shares contending that plaint schedule property originally belonged to Chellappan Achari and his sister Thai and first respondent is the widow and second respondent, the daughter of Chellappan Achari and Chellappan Achari died on 25/3/2001 and on his death, his rights devolved on respondents 1 and 2 and Thai died on 25/12/1989 and on her death, her rights RSA 622 & 630/11 2 devolved on the defendants in the suit including the appellant and therefore, respondents 1 and 2 are entitled to get their share separated. Only appellant and eighth defendant resisted the suit. They contended that Chellappan Achari left the property in 1960 releasing his right to Thai and thereafter, he never come to the property and Thai was the absolute owner of the property and on her death, it devolved only on her legal heirs. It is contended that first respondent is not the widow and second respondent, the daughter of Chellappan Achari and therefore, they are not entitled to claim any share. It was also contended that even if respondents 1 and 2 are entitled to get shares, their rights are lost by adverse possession. The appellant instituted O.S.415/2002 seeking a decree for RSA 622 & 630/11 3 permanent prohibitory injunction contending that after Chellappan Achari released his right and left the property, Thai alone was having right in the property and Chellappan died on 25/3/2001 and he was unmarried when he left the place and Thai died on 25/12/1989 and first respondent who is sole defendant in the suit has no right in the property and as she attempted to trespass into the property, she is to be restrained by a permanent prohibitory injunction. Learned Munsiff tried both the suits together. O.S.1527/2003 was treated as the main case. On the evidence of PW.1, the first respondent, DW.1 the appellant and DW.2, the eighth defendant and Exts.A1 to A7, B1 to B5 learned Munsiff found that first respondent is the widow and second respondent, the daughter of the deceased Chellappan Achari and RSA 622 & 630/11 4 on the death of Chellappan Achari his rights devolved on them and on the death of Thai her rights devolved on her legal heirs, the defendants and respondents 1 and 2 are entitled to get their half share separated. Preliminary decree for partition was passed in O.S.1527/2003. As the sole plaintiff in O.S.415/2002 was the co-owner, the suit was dismissed. 2. Appellant challenged the common judgment before Additional District court, Thiruvananthapuram in A.S.93/2008 and 103/2003. Learned Additional District Judge on re- appreciation of the evidence, confirmed the findings of the learned Munsiff and dismissed the appeals. 3. R.S.A.622/2011 is filed against the decree in A.S.103/2008 and R.S.A.630/2011 as RSA 622 & 630/11 5 against decree in O.S.415/2002. 4. Learned counsel appearing for the appellant was heard. 5. Argument of the learned counsel is that courts below did not properly appreciate the evidence. It was argued that though first respondent claimed that she married Chellappan Achari and Ext.A3 marriage invitation card was produced, courts below did not properly appreciate Ext.A3. It was argued that the details of Chellappan Achari shown in Ext.A3 is different from the details seen in Ext.A1, by which Chellappan Achari and Thai obtained the plaint schedule property and similarly, father of Chellappan Achari shown in Ext.A4 electoral card is not the name of the father as Chellppan Achari and in the light of this evidence, courts below should not RSA 622 & 630/11 6 have found that first respondent is widow and second respondent, the daughter of Chellappan Achari. 6. On hearing the learned counsel and going through the judgments of the courts and copy of the depositions of the witnesses and exhibits made available by the learned counsel, I do not find any substantial question of law involved in the appeal. Plaint schedule property admittedly originally belonged to Chellappan Achari and Thai. Appellant as well as eighth defendant contended that Chellappan Achari left the place in 1960 releasing his rights in favour of Thai and at that time, he was unmarried and after the death of Thai, her rights devolved only on the defendants and respondents 1 and 2 are not entitled to any share. Respondents 1 and 2 on RSA 622 & 630/11 7 the other hand, contended that Chellappan Achari married the first respondent on 2/7/1964 and second respondent was born in that wedlock. PW1 had given evidence that Chellappan Achari married her and second respondent has born in that wedlock. Though it was suggested to PW1 that she is not the wife of Chellappan Achari, the fact that second respondent was born to Chellappan Achari as deposed by PW1 was not challenged. There was also no suggestion to PW1 that Chellappan Achari referred to in Ext.A3 or A4 is some other Chellappan Achari and not the brother of Thai. In the light of the evidence, courts below rightly found that first respondent is the widow and second respondent, the daughter of Chellappan Achari. If that be so, they are entitled to get half share due to Chellappan Achari as has been RSA 622 & 630/11 8 rightly found by the courts below. In the light of factual findings, no substantial question of law is involved. The appeals are dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.