IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 RSA.No. 1277 of 2009() ---------------------- OS.390/1999 of MUNSIFF COURT, KARUNAGAPALLY R.F.A.No.16/2004 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KOLLAM .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------ 1. KOCHAYYA KOCHIKKA, AGED 73 YEARS, RESIDING AT ERANJIKKOTTU VADAKKATHIL, KULAKKADA KIZHAKUM MURI, KULAKKADA VILLAGE FROM ERANATTUSSERI PAUMBA SOUTH MURI, PANUMBA VILLAGE. 2. VELUTHAKUNJU DAMODHARAN, AGED 57 YEARS, RESIDING AT ERANJIKKOTTU VADAKKATHIL, KULAKKADA KIZHAKUM MURI, KULAKKADA VILLAGE FROM ERANATTUSSERI PAUMBA SOUTH MURI, PANUMBA VILLAGE. 3. KOCHICKA NANI, AGED 53 YEARS, RESIDING AT ERANJIKKOTTU VADAKKATHIL, KULAKKADA KIZHAKUM MURI, KULAKKADA VILLAGE FROM ERANATTUSSERI PAUMBA SOUTH MURI, PANUMBA VILLAGE. 4. VELUTHAKUNJU THANKAPPAN, AGED 45 YEARS, ERANATTUSERI, PAVUMBA SOUTH MURI, PAVUMBA VILLAGE. 5. VELUMBI THANKAMONY, AGED 37 YEARS, ERANATTUSERI, PAVUMBA SOUTH MURI, PAVUMBA VILLAGE. 6. NARAYANAN BHASKARAN, AGED 56 YEARS, ERANATTUSERI, PAVUMBA SOUTH MURI, PAVUMBA VILLAGE. 7. NARAYANAN KUTTY, AGED 47 YEARS, ERANATTUSERI, PAVUMBA SOUTH MURI, PAVUMBA VILLAGE. 8. VELUMBI CHANDRIKA, AGED 41 YEARS, ERANATTUSERI, PAVUMBA SOUTH MURI, PAVUMBA VILLAGE. 9. NARAYANAN RAMACHANDRAN, AGED 49 YEARS, ERANATTUSERI, PAVUMBA SOUTH MURI, PAVUMBA VILLAGE. BY ADV. SRI.M.K.CHANDRA MOHANDAS SRI.MURALI MADANTHACODU RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------- 1. NARAYANAN RAMAKRISHNAN, AGED 43 YEARS, CHARACKAL VEEDU, ANAYADI MURI, SOORANAD NORTH VILLAGE. 2. VELUMBI SARADHA, AGED 58 YEARS, SARADA BHAVAN, ANAYADI MURI, SOORANAD NORTH VILLAGE. 3. SANKARAN RAMAN, AGED 66 YEARS, RETD. GOVT. SERVANT, NAMBIYA VEETTIL, VADAKKATHIL, VADAKKUMTHALA MEKKUM MURI, VADAKKUMTHALA VILLAGE. ADV. MR. SAJU J VALLYARA FOR R1, R2 ADV. MR. P B SURESH KUMAR FOR R3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1277 of 2009 --------------------------------------- Dated this 18th day of January, 2010 JUDGMENT The second appeal arises from judgment and decree of learned Additional District Judge, (Adhoc-II), Kollam in R.F.A.No.16 of 2004 confirming the dismissal of the suit and decree on the counter claim. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. Veluthakunju and Velumbi are the children of Chandiran Sankaran. Plaintiff Nos.1 to 3 are the widow and children of Veluthakunju while plaintiff Nos.4 to 9 and defendant Nos.1 and 2 are the children of Velumbi. Third defendant is nephew of Chandiran Sankaran (who claimed right over the property as per two settlement deeds executed by Chandiran Sankaran). According to the plaintiffs, 1.65 acres referred to in the plaint schedule was taken on lease by Chandiran Sankaran and four others as per Ext.A1, lease deed No.6221 of 1102ME. It is the further case of plaintiff that the lessees other than Chandiran Sankaran assigned their right in the suit property to Veluthakunju and Velumbi. On the death of Chandiran Sankaran, Veluthakunju and Velumbi, plaintiffs and defendant Nos.1 and 2 became the co-owners of the said property. Hence the suit for partition. Defendant No.3 was impleaded since he is making claim R.S.A.No.1277 of 2009 2 over the suit property on the strength of the settlement deeds. Defendant Nos.1 and 2 did not contest. Defendant No.3 contested the suit and made a counter claim admitting Ext.A1, lease deed but denying that lessees other than Chandiran Sankaran assigned their right to Veluthakunju and Velumbi. It is also contended that since the other lessees died issueless, entire property came to Chandiran Sankaran who executed Exts.B3 and B4, settlement deeds. In the light of that, plaintiffs or defendant Nos. 1 and 2 have no right to seek partition as prayed for. Seeking declaration of title and injunction in respect of 53 cents claimed to be in the possession of defendant No.3 on the strength of Exts.B3 and B4, he made the counter claim. Trial court found that case of plaintiffs that the lessees under Ext.A1 other than Chandiran Sankaran assigned their right to Veluthakunju and Velumbi is not proved. It was also found that on the death of the other lessees under Ext.A4, issueless, entire property came to Chandiran Sankaran who executed Exts.B3 and B4. Veluthakunju and Velumbi or other children could not have acquired any right over the suit property during the life time of Chandiran Sankaran. Holding so the suit was dismissed and the counter claim was allowed. That was upheld by the first appellate court. Hence the second appeal urging by way of substantial question of law whether the courts below erred in framing proper issues, placing burden of proof on the plaintiffs and in not R.S.A.No.1277 of 2009 3 considering whether Chandiran Sankaran had absolute right over the property. Learned counsel asserting the above points contended that the concurrent findings require interference. 3. There is no dispute regarding acquisition of leasehold right as per Ext.A1. Though plaintiff have a case that the lessees other than Chandiran Sankaran had assigned their right to Veluthakunju and Velumbi. It is conceded that no evidence in that line has been produced. Hence the claim of plaintiffs based on the assignment of leasehold right of the lessees under Ext.A1 other than Chandiran Sankaran cannot stand. They can only claim as legal heirs of Chandiran Sankaran and Veluthu Kunju and Velumbi. It is not disputed that consequent to the death of four other lessees issueless, the entire property came to Chandiran Sankaran who died in August 1980. But according to defendant No.3, Chandiran Sankaran executed Ext.B3, settlement deed No.3858 of 1963 regarding one acre in survey No.14385A and defendant No.3 got possession of 55 cents (referred to in the counter claim as 53 cents). Chandiran Sankaran executed Ext.B4, registered agreement No.2476 of 1968 as per which 45 cents out of the said one acre was retained by Chandiran Sankaran and 55 cents on the west was given to defendant No.3. It is also the case of defendant No.3 that Chandiran Sankaran allotted 25 cents in favour of plaintiff Nos.2 to 4 in the year 1971 and sold another 11½ cents to R.S.A.No.1277 of 2009 4 plaintiff Nos.2 to 4. There were subsequent alienations also. All these transactions are admitted by PW1. it is not disputed that after the above transactions there was no land left with Chandiran Sankaran. Defendant No.3 is in possession of 53 cents on the western side. It is in respect of that 53 cents that defendant No.3 has made the counter claim. The Advocate Commissioner has reported in Ext.C1 that the said 53 cents is bounded by well defined boundaries as claimed by defendant No.3. Title and possession claimed by defendant No.3 over the 53 cents is proved by Exts.B3 to B6. It is also relevant to note that in Ext.B1, caveat filed by plaintiff Nos.2 and 4 on 12-08-1987 their claim was only regarding 45 cents. Courts below found that the previous suit (O.S.No.390 of 1999) was only in respect of the 45 cents and there was no claim for partition of 53 cents claimed by defendant No.3. The further fact which the courts below observed is that there is no prayer to set aside Exts.B3 and B4. 4. Now coming to the points urged by learned counsel, contention is that there is no proper issue framed by the trial court as to the validity of Exts.B3 and B4. But I find that issues have been framed regarding partibility of the suit property and whether the counter claim made by defendant No.3 was allowable. These issues involved acceptability of Exts.B3 and B4 and the parties, conscious about that have gone into trial and adduced evidence. At this stage it R.S.A.No.1277 of 2009 5 is too late for plaintiffs to contend that there was no proper issue framed by the trial court. Since the claim of plaintiffs for partition is denied by defendant No.3 certainly the burden of proof was on the plaintiffs. Courts below observed that there is no prayer to set aside Exts.B3 and B4. In the circumstances trial court has rightly found and first appellate court rightly confirmed that plaintiffs and defendant Nos.1 and 2 have no partible right over the suit property and defendant No.3 is entitled to succeed on the counter claim. No substantial question of law is involved in the appeal requiring its admission. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/