IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 RSA.No. 1008 of 2008() ---------------------- O.S.NO.302/2003 ON THE FILE OF THE MUNSIFF'S COURT, ALATHUR A.S.NO.294/2004 ON THE FILE OF THE DISTRICT COURT, PALAKKAD APPELLANTS: -------------------- 1. VELLA , AGED 69 YEARS, S/O. CHAMI, CHENNANKAD POTTAYIL HOUSE, KOTTAYI, PALAKKAD. 2. PARU, AGED 64 YEARS, W/O. VELLA, CHENNAKAD POTTAYIL HOUSE, KOTTAYI, PALAKKAD. 3. CHAMUKUTTAN, AGED 39 YEARS, S/O. VELLA, CHENNANKAD POTTAYIL HOUSE, KOTTAYI, PALAKKAD. 4. SUNDARAN, AGED 28 YEARS, S/O. VELLA, CHENNANKAD POTTAYIL HOUSE, KOTTAYI, PALAKKAD. BY ADV. SRI.K.ANAND RESPONDENT(S): ------------------------ 1. PUSHPA, AGED 25 YEARS, W/O. LATE RAJAND AND D/O. SWAMINATHAN, VAKKATHARA, THENKURUSSI, ALATHUR. 2. RESHMA, AGED 5 YEARS, (MINOR), D/O. PUSHPA, VAKKATHARA, THENKURUSSI, ALATHUR, (REPRESENTED BY GUARDIAN MOTHER 1ST RESPONDENT). THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.1008 of 2008 = = = = = = = = = = = = = = Dated this the 1 st day of December, 2008 JUDGMENT Defendants 1 to 4 in O.S.No.302 of 2003 on the file of the Munsiff's Court, Alathur are the appellants in this second appeal. The said suit instituted by respondents 1 and 2 herein was one for partition and separate possession of the plaintiff's share over three items of immovable property described as A,B and C schedules. The present dispute pertains only to the plaint A schedule Property having an extent of 6 cents comprised in Survey No.189/5 of Kottayi village. 2. It may be useful to have an idea regarding the genealogy of the parties. The 1st defendant Vella examined as DW1 is the son of one Chamy who died in the year 1975. The 2nd defendant is the wife of the 1st defendant. One Rajan who died on 8.4.2002 and defendants 3 and 4 are the sons of the 1st defendant. The 1st plaintiff examined as PW1 is the widow of the said Rajan and the 2nd plaintiff is their son. While according to the plaintiffs the plaint A Schedule property was an ancestral R.S.A.No.1008 of 2008 2 property of the 1st defendant, the appellants contended that the plaint A schedule property was the self acquisition of Chamy as per a registered document of the year 1971 and that on the death of Chamy in the year 1975 the property had devolved upon the 1st defendant and his brothers, that they divided the properties as per a partition deed and subsequently the 1st defendant's brothers executed Ext.B1 release deed dated 21.5.95 releasing their rights over the property in favour of the 1st defendant. 3. The learned Munsiff after trial as per judgment dated 31.7.04 passed a preliminary decree for partition declaring the plaintiff's 1/4th share over the plaint schedule properties. It was held that apart from the fact that the property dealt with under Ext.B1 was 7 cents comprised in Re-survey No.183/4 whereas plaint A Schedule property is 6 cents comprised in Re-survey No.184/5, the lower court also held that the non-production of the document of the year 1971 referred to in Ext.B1 release deed was fatal to the defence contention that the suit property was a self acquisition of the said Chamy. On appeal preferred by the defendants, the lower appellate court concurred with the R.S.A.No.1008 of 2008 3 findings of the trial court. Evenafter the observation by the trial court that the defendants did not produce the document of the year 1971 to substantiate their case that the property was the self acquisition by Chamy, they did not produce the said document even before the lower court. Hence the conclusion reached by the courts below cannot be faulted with. I do not find any good ground to interfere with the orders passed by the courts below. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 1 st day of December, 2008. V. RAMKUMAR, JUDGE sj