IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 RSA.No. 939 of 2008() --------------------- AS.164/2005 of DISTRICT COURT,KOLLAM OS.1056/2001 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT/APPELLANT/PLAINTIFF:- ------------------------------------------ GEORGE CHERIAN, S/O LATE CHERIAN AGED 83, RESIDING AT THADATHUVILA HOUSE, PUNUKKANNOOR, PERUMPUZHA, ELAMPALLOOR VILLAGE, KOLLAM. BY ADV. SRI.P.R.PREMACHANDREN SMT.T.S.MAYA (THIYADIL) RESPONDENTS/ RESPONDENTS/DEFENDANTS:- ----------------------------------------------------- 1. MATHAI CHERIAN, S/O LATE CHERIAN, AGED 68, RESIDING AT THADATHUVILA HOUSE, PUNUKKANNOOR, PERUMPUZHA, ELAMPALLOOR VILLAGE, KOLLAM. 2. GEE VARGHESE, S/O LATE CHERIAN, AGED 63,RESIDING AT THADATHUVILA HOUSE, PUNUKKANNOOR, PERUMPUZHA, ELAMPALLOOR VILLAGE, KOLLAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ======================== R.S.A. No. 939 of 2008 ======================== Dated this the 4th day of September, 2008. JUDGMENT The plaintiff in O.S. No. 1056 of 2001 on the file of the Additional Munsiff's Court, Kollam is the appellant in this Second Appeal. The said suit was one for declaration of the plaintiff's right over 1.09 acres of land scheduled to the plaintiff and for fixation of the boundary, partition and for perpetual injunction. 2. The following is the case of the plaintiff: Defendants 1 and 2 are the brothers of the plaintiff. On 16.01.1967, the three brothers entered into Ext.A1 partition as per which 14 items of properties were divided among them. As per the first schedule to Ext.A1, three items of properties were allotted to the plaintiff/appellant and those items are described in the plaint A schedule. Five items of properties were set apart to the share of the 2nd defendant as per 2nd schedule to Ext.A1 partition deed. These properties have been described as the plaint B schedule property. Six items of properties were allotted to the share of the 1st defendant as R.S.A.No. 939/2008 : 2: per 3rd schedule in Ext.A1 partition deed. These properties are described in the plaint C schedule. Saramma, the mother of both the plaintiff and defendants 1 and 2 was given a life estate over the properties so divided by the three brothers. The plaintiff is the eldest brother. According to the plaintiff, the properties were partitioned under Ext.A1 without actually measuring the properties and when the 1st defendant was abroad it was plaintiff who was looking after the properties allotted to the 1st defendant under the 3rd schedule to Ext.A1 partition deed. The specific agreement as recited in Ext.A1 partition was that if any of the sharers was found to have properties less than what was allotted to him under the schedule, he would have to be given proportionate increase and if any excess land was found that would be proportionately divided between the sharers. In the year 1972, when the properties were measured, the properties given to the 1st defendant were found in excess and therefore the plaintiff requested the 1st defendant that the excess properties should be divided. According to the plaintiff, the 1st defendant was agreeable to the same and he only wanted the partition as and R.S.A.No. 939/2008 : 3: when he came down from Bahrin where he was employed. Accordingly, when the 1st defendant came down to native place in the year 2001, the plaintiff repeated his request to partition the excess land. But then the 1st defendant changed his word and refused to accede to the request of the plaintiff. The plaintiff was thus constrained to file the suit. 2. The said version was not accepted by the courts below which dismissed the suit after holding that the relevant recital in Ext.A1 relied on by the plaintiff did not support his contentions. Hence the present Second Appeal. 3. The learned counsel appearing for the appellant reiterated the contentions of the plaintiff and made the following submissions before me in support of the appeal:- Ext.A1 partition deed itself recites that the properties have not been measured. It contains the further recitals which read as follows:- R.S.A.No. 939/2008 : 4: According to the appellant, the above clause means that if at the time of actual measurement, it is found that the area allotted to any sharer is found less than what has been mentioned in the schedule, then he will have to be given proportionate land by the other sharers and if any sharer is found to have excess land, then the said excess land will have to be proportionately divided between the sharers. The learned counsel laid stress on the word to contend that it only means proportionate reduction or increase as the case may be depending on the actual area found on measurement. 4. I am afraid that I cannot agree with the above submission. Both the courts have held that such an interpretation cannot be given to the above said clause. The expressions or in the Malayalam-English Dictionary by Prof. M.A. Warior published by D.C. Books in its 2002 edition are given the following meaning:- R.S.A.No. 939/2008 : 5: It only means division or apportionment or giving a share. It does not comprehend proportionate reduction or increase as is contended by the appellant. According to the appellant, the description of properties in the 3rd schedule as per which properties were given to the 1st defendant gives the expression (excess land). This, according to the appellant, is indicative of the fact that the excess land was under the contemplation of the parties and it was this excess land which is found on measurement to be divided between the sharers. It is significant to note that the said expression is employed in all the three schedules which only indicates that what was partitioned was the land as described in the schedule together with excess land, if any. At any rate, the clause relied on by the appellant in Ext.A1 does not suggest that the excess land if any, found on measurement should be proportionately divided between the sharers as is contended by the plaintiff. Except the self-interested version of the plaintiff that the properties were measured in the year 1972 and the 1st defendant agreed to have the excess land of 1.09 acres R.S.A.No. 939/2008 : 6: proportionately divided between the brothers on his return to the native place, there is no acceptable evidence also in support of the said contention. The properties were partitioned as early as on 16.01.1967. Even according to the plaintiff, the measurement was made in the year 1972. But the suit was filed in the year 2001. Such being the position, the suit was nothing but a belated afterthought. Probably, the brothers fell apart in the year 2001 and that is the reason for the plaintiff to turn greedy and institute the suit. 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 determination in this Second Apepal which is accordingly dismissed in limine. Dated this the 4th day of November, 2008. V.Ramkumar, Judge rv