IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 RSA.No. 633 of 2009() --------------------- AS.No.47/2006 of SUB COURT, KASARAGOD OS.No.205/2005 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT/DEFENDANTS-1,3 & 4 --------------------------------------------- 1. SUNDARA, AGED 58 YEARS, S/O. AITHAPPA BELCHAPADA, HINDU, RETIRED TEACHER, RESIDING AT GOWRI NIVAS, NEAR MADA TEMPLE, KUNJATHUR IN HOSABETTU VILLAGE, KASARAGOD TALUK P.O. KUNJATHUR. 2. YASODA AGED 46 YEARS W/O. UMESHA, HINDU, CULTIVATOR, RESIDING AT BOGARI ADI HOUSE, KOPPALA IN BANGARA MANJESHWAR VILLAGE, KASARAGOD TALUK, P.O.BANGARAMANJESHWAR. 3. HEMAVATHI AGED 38 YEARS, W/O.HEMACHANDRA HINDU, CULTIVATOR, RESIDING AT NIKHIL COMPOUND AMBIKA ROAD, THOKKOTTU, P.O.THOKKOTTU, MANGALORE TALUK, D.K . BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENTS: PLAINTIFF AND DEFENDANTS No.2 & 5 to 10 -------------------------------------------------------------------------------------- 1. KANDAPPA, AGED 67 YEARS S/O AITHAPPA BELCHAPPADA, HINDU, CULTIVATOR RESIDING AT A/301, SHRUTHI APARTMENTS, M.G.ROAD DOMBIVILI WEST, THANA DISTRICT MAHARASHTRA STATE. 2. SUNIL SUVARNA, AGED 51 YEARS, S/O. AITHAPPA BELCHAPPADA, HINDU WATCH REPAIRER, RESIDING AT G-17, IIIRD FLOOR, GANGESHWARI GANGA, DEENADAYAL ROAD, NEAR SAMRAT HOTEL, DOMBIVILI WEST, THANA DIST. MAHARASHTRA STATE. 3. VATSALA, AGED 52 YEARS, W/O. RAJU, HINDU 4. SONALI, AGED 33 YEARS, W/O.YATHIS SALIYAN, HINDU. RSA.No. 633 of 2009() 2 5. ROOPA, AGED 31 YEARS, W/O. DHANARAJ HINDU. 6. NITIN, AGED 29 YEARS, EMPLOYED IN MEEDONS COMPANY 7. VINAY, AGED 27 YEARS, SAILOR. 8. VEERENDRA, AGED 27 YEARS, SAILOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------------------- R.S.A.No.633 of 2009 --------------------------------------- Dated this the 3rd day of August, 2009 JUDGMENT The defendants 1, 3 and 4 in O.S.No.205/05 on the file of the Munsiff's Court, Kasargod are the appellants. The appeal is directed against the judgment and decree in A.S.No.47/2006 on the file of the Sub Court, Kasargod. The sole plaintiff who is the first respondent herein filed the suit for partition. A preliminary decree was passed by the trial court directing the division of plaint schedule property into 6 equal shares by metes and bounds and one such share is allotted to the plaintiff, 3/6 shares to the appellants who are defendants 1,3 and 4 jointly. Another share was allotted to second defendant and one share to defendants 5 to 10 jointly. The house situated in the property, it is decreed, shall be jointly allotted to D1, D3 and D4/appellants after valuation. 2. There is no dispute regarding the quantum of sharers. The suit property originally belonged to the father of the plaintiff and defendant, after his death it is devolved upon plaintiff and defendant, and they are entitled to the share of the property. The only dispute raised by defendants 1,3 and 4 is that the R.S.A.No.633/2009 2 house situated in the suit property was constructed by the first defendant in the year 1983 and therefore the decree passed by the trial court allotting the house to the share of defendants 1, 3 & 4 after valuation is wrong. According to them the building shall not be valued since it was constructed with the funds of the first defendant and therefore the decree has to be modified to that extent. This is the only question considered by the trial court. 3. The trial court, after an elaborate discussion of facts, circumstances and evidence, held that the evidence of DW1 or the documents produced by him did not support the case that he had constructed the house using his own fund. According to the trial court, the three bills are not genuine, and that the issuance of bill, the case of supply of materials and also the evidence of DWs.1 to 3 are totally contradictory. The trial court after discussion held that the facts and circumstances unmistakably pointed out that these documents are created for the purpose of supporting the case of first defendant for claiming that the house has been constructed by him and that his evidence is totally unreliable. 4. The matter has been taken up in the appeal by R.S.A.No.633/2009 3 defendants 1,3 and 4. The appellate court also considered the same question, agreed with the findings of the trial court, and held that there is no reason to interfere with the findings of the trial court. The appellate court dismissed the appeal. In the second appeal, the learned counsel for the appellants urged the very same questions. I have also examined the findings of the trial court and appellate court. I find that the reasons stated for arriving at the conclusions, that there is no proof regarding the construction of the house by utilizing the funds of the first defendant, are correctly made and the said finding is purely based on facts, circumstances and evidence. The appellate court also had rightly taken the correct view after re-appreciation of funds. No different view is possible other than the view expressed by the trial court and appellate court and there are no reasons to invoke this court's jurisdiction under Section 100 C.P.C. No question of law much less any substantial questions of law arises for consideration in this appeal. Hence, this appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE Skj.