IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 SA.No. 259 of 1999(E) --------------------- AS.236/1992 of PRL.SUB COURT,IRINJALAKUDA OS.824/1990 of ADDL.MUNSIFF COURT,IRINJALAKUDA .................... APPELLANT(S): APPELLANT/DEFENDANT NO.1: ----------------------------------------------------------------------- KURALI, COMPANY EMPLOYEE, PAZHAI DESOM, NENMANIKKARA VILLAGE, MUKUNDAPURAM TALUK. ( D I E D) - LRS IMPLEADED: *ADDL.APPELLANTS 2 TO 6 & ADDL.RESPONDENTS 4 & 5 IMPLEADED: A2. V.K.PREMAN, AGED 42, S/O.LATE KURALI, VARIATH HOUSE, PAZHAI PO, TRICHUR DISTRICT. A3. V.K.MOHANAN, S/O.LATE KURALI, VARIATH HOUSE, PAZHAI PO, TRICHUR DISTRICT. A4. V.K.NALINI, W/O.KUMARAN, PANANGATTIL, PERINGOTTUKARA, TRICHUR DISTRICT. A5. V.K.RAJANI, W/O.AYYAPPAN, PULICKAL, NENMANIKKARA, AMBALLUR, TRICHUR DISTRICT. A6. V.K.AMBIKA, W/O.APPU, KALLASSERY HOUSE, PAZHAI, TRICHUR DISTRICT. BY ADVS. SRI.T.M.CHANDRAN, SRI.S.SUJITH. Kss ..2/- ..2.... SA.NO.259/1999 RESPONDENT(S): RESPONDENTS/PLAINTIFF-DEFENDANT NO.2: -------------------------------------------------------------------------------------------------- **1. KALI, W/O.KARUMATHIL AYYPPAN AND D/O. VARIYATH AKKAN, THOTTIPPAL DESOM, THOTTIPPAL VILLAGE, MUKUNDAPURAM TALUK. ( D I E D) - LR'S IMPLEADED: ***2. SABARI, W/O.THOTTATHIL KAVALAN, KANNAMPATHUR DESOM, THORAVU VILLAGE, MUKUNDAPURAM TALUK. ( D I E D) - LR'S IMPLEADED ( ADDL. 6 TO 12) **ADDL.R3 IMPLEADED: R3. K.A.MOHANAN, S/O.KARUMATHIL AYYAPPAN, THOTTIPPAL, NEAR MANJAMKUZHI DAM, P.O.THOTTIPPAL, TRICHUR DISTRICT. **ADDL.R3 IS IMPLEADED AS THE LR OF DECEASED 1ST RESPONDENT AS PER ORDER DTD. 4/03/2003 IN CMP.NO.1478/2001. *ADDL.R4 & R5 IMPLEADED: R4. VALLIAMMA, W/O.LATE KURALI, VARIATH HOUSE, PAZHAI PO, TRICHUR DISTRICT. R5. V.K.THILAKAN, S/O.LATE KURALI, VARIATH HOUSE, PAZHAI PO, TRICHUR DISTRICT. *ADDL.APPELLANTS 2 TO 6 AND ADDL.RESPONDENTS 4 & 5 ARE IMPLEADED AS LR'S OF DECEASED SOLE APPELLANT AS PER COMMON ORDER DTD. 13/09/2010 IN I.A.NO.786 & 787/2010 RESPECTIVELY. ***ADDL.R6 TO R12 IMPLEADED: R6. KARTHTIAYANI, W/O. VELAYUDHAN, PAILAVALAPPIL HOUSE, CHENGALUR, RANDAMKALLU, TRICHUR DISTRICT. R7. VELAYUDHAN, THOTTATHIL HOUSE, KANNAMPATHUR, PO PUTHKKAD, TRICHUR DISTRICT. Kss ..3/- ..3.... SA.NO.259/1999 R8. LEELA SUNDARAN, PANIYATH HOUSE, KANNAMPATHUR, PO.PUTHUKKAD, TRICHUR. R9. RAJAN, THOTTATHIL HOUSE, KANNAMPATHUR PO, PUTHUKKAD, TRICHUR DISTRICT. R10. LATHA SUBRAN, PAYYAKKAL HOUSE, ALOOR, NEAR PERUNNAMKUNNU WATER TANK, TRICHUR DISTRICT. R11. ARAVINDAN, THOTTATHIL HOUSE, KANNAMPATHUR, P.O. PUTHUKKAD, TRICHUR DISTRICT. R12. AJITHKUMAR, THOTTATHIL HOUSE, KANNAMPATHUR, P.O. PUTHUKKAD, TRICHUR DISTRICT. ***ADDL.RESPONDENTS 6 TO 12 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND RESPONDENT AS PER ORDER DTD. 13/09/2010 IN I.A.789/10. ADDL.R3 TO R10 BY ADV. SRI.K.G.BALASUBRAMANIAN ADDL.R4 TO R10 BY ADV. SMT.AMBILY (PREMKUMAR) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- SA No.259 of 1999-E ------------------------------------- Dated this the 29th day of November 2011 Judgment The disappointed first defendant in OS No.824/90 before the Additional Munsiff's Court, Irinjalakuda, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for partition and a preliminary decree was passed. The plaintiff and defendant are siblings of Akkan and Akky. The plaintiff claimed that the plaint schedule property belonged to their parents and on their death, it devolved on the three children in equal shares. The parties are Pulayas by caste and the plaintiff pointed out that she is not inclined to continue joint possession of the property and therefore, the suit was laid. 3. The defendants resisted the suit. It was pointed out by them that the property was not available for SA 259/99 2 partition. The contention taken by the defendants was that the property was obtained by the first defendant from Vadakkedath Mana, where he was serving as an employee. The property exclusively belong to the first defendant and the plaintiff has no manner of right over the property. On the basis of these contentions, they prayed for dismissal of the suit. 4. On the above pleadings, issues were raised. Evidence consists of the testimony of PW1 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants had PW1 examined and Ext.B1 marked. 5. On the basis of preponderance of probability, the trial court held that the property has been acquired by the parents of the parties and ordered partition accordingly. That was confirmed in appeal. Hence the second appeal. The original parties are no more and their legal heirs have been brought on the party array. SA 259/99 3 6. Notice is seen issued on the following questions of law raised in the second appeal : a. Whether the plaintiff is liable to prove the case independently put forward by the plaintiff. b. Whether a court is liable to dismiss the suit if the plaintiff fails to prove the case put forward by the plaintiff. c. Can a court rely on the oral evidence alone especially when the plaintiff has got a case that there is documentary evidence to sustain the claim. d. Whether the defendant is liable to prove his case when the plaintiff did not adduce any reliable evidence to sustain the plaint claim. e. Whether a court can insist for documentary evidence in preference to the oral evidence ? f. Whether burden shifts to the defendant even if the plaintiff fails to prove the case put forward. g. Whether the defendant is entitled to get the value of improvements he effected. h. Is the suit barred by adverse possession. SA 259/99 4 7. The learned counsel for the appellant very vehemently contended that the courts below were not justified in holding that the properties are available for partition. The learned counsel pointed out that the burden was on the plaintiff to show that the acquisition was by the parents of the parties and the property is available for partition to the legal representatives. Instead, both the courts below have thrown the burden on the first defendant to show that it was his self acquisition. That is a wrong approach and therefore, the judgment and decree are liable to be interfered with. 8. The learned counsel for the respondents, on the other hand, pointed out that both the courts below have considered the evidence in considerable detail and have come to the right conclusions. There is nothing to show that the acquisition has been made by the first defendant. It is highly improbable that the first defendant would have acquired the property by himself. The unimpeached evidence of PW1 shows that the parents of the parties had SA 259/99 5 shifted their residence to the present place when the first defendant was only ten months of age. These aspects have been taken note of by the trial court and the lower appellate court and it was found that the property could not have been the self-acquisition of the first defendant. Being findings based on evidence in the case and pure questions of fact, no interference is called for with the judgment and decree of the courts below. 9. Having heard the learned counsel on both sides and gone through the records, it is found that there is considerable force in the submission made by the respondents. True, neither side has produced any documents to prove their title to the property. But, the plaintiff has averred that the property was acquired by the parents of the parties and on their death, it devolved on their legal representatives. 10. There can be no dispute regarding the fact that the burden is on the plaintiff to show that the property was the acquisition of the parents. But since both sides SA 259/99 6 have not produced any documents to prove their title to the property and have not adduced oral evidence, the question of burden to prove becomes insignificant and the case is to be decided on preponderance of probability based on the evidence available in the case. 11. The case of the first defendant was that he had obtained the plaint schedule property as a gift from the Vadakkedath Mana. In the written statement, all that is stated is that he got the property from Vadakkedath Mana. The exact nature of the transaction by which he obtained the property, is not mentioned in the statement. The more clinching item of evidence is that the evidence of PW1 to the effect that the parents of the parties shifted to the present place when the first defendant was only ten months of age, stands unimpeached. If that be so, if after four or five years, the acquisition would have been made, it could have been only by the parents of the parties. It is inconceivable that the first defendant, who might have only less than seven years of age at the relevant time, would SA 259/99 7 have obtained the property either by way of gift or any other transaction from Vadakkedath Mana. 12. The learned counsel for the respondents also brought to the notice of this court, the statement in the written statement that the plaintiff had been given her share and that she was not entitled to any other rights, which shows that the plaintiff had right over the property, which also defeats the claim of the first defendant that the plaint schedule property was his self acquisition. 13. In the light of the evidence available, the conclusion reached by the court below is probable. No grounds are made out to interfere with the judgment and decree of the courts below. The findings are pure findings of fact. The second appeal is without any merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. P.Bhavadasan, Judge sta SA 259/99 8 SA 259/99 9