IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 SA.No. 674 of 1999(E) -------------------- AS.11/1996 of SUB COURT, CHERTHALA OS.96/1991 of ADDL.MUNSIFF COURT,CHERTHALA ................... APPELLANT IN S.A. - RESPONDENT NO. 1 IN THE LOWER APPELLATE COURT – ------------------------------------------------------------------------------------------------------------------ PLAINTIFF IN SUIT. ---------------------------- P. VASANTHY ALIAS KALYANI, D/O. PAPPY, VARIYATH, PATTANAKKAD MURI, PATTANAKKAD VILLAGE. BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI. P.B. KRISHNAN RESPONDENT 1 TO 3 IN S.A. - APPELLANTS IN THE LOWER APPELLATE COURT – ---------------------------------------------------------------------------------------------------------------------- DEFENDANTS 2 TO 4 IN THE SUIT. ------------------------------------------------- 1. K.K. KUTTAPPAN, S/O. KESAVAN, VELIYIL HOUSE, VAYALAR MURI, VAYALAR EAST VILLAGE. 2. K.K. NARAYANAN, S/O. DO., AYYANATTU HOUSE, IN DO. DO. 3. K.K. MANIYAN, S/O. DO., KANNATTU HOUSE, IN DO. DO. RESPONDENT NO. 4 IN S.A. - RESPONDENT NO.2 IN THE LOWER APPELLATE -------------------------------------------------------------------------------------------------------------- COURT – DEFENDANT NO. 1 IN SUIT. ----------------------------------------------------- 4. THAKAMMA, D/O. PAPPY, THARAYIL HOUSE, VETTACKAL DESOM, PATTANAKKAD MURI, PATTANAKKAD VILLAGE. (DIED LRS IMPLEADED) ...2/- SA.No. 674 of 1999(E) -2- * ADDITIONAL RESPONDENTS 5 TO 12 IMPLEADED 5. PURUSHAN, S/O. THANKAMMA ALIAS KALYANI, RESIDING AT THARAYIL, PATTANAKKAD, VETTAKKAL P.O., ANDHAKARANAZHI, CHERTHALA. 6. REMANAN, IN DO. DO., S/O. DO. IN DO. 7. VASANTHY, D/O. DO IN DO. DO. 8. PUSHPA, D/O. DO., RESIDING AT THAIKKOTTATHIL CHIRAYIL HOUSE, VAYALAR PANCHAYAT WARD NO. 5., VAYALAR P.O., CHERTHALA. 9. VISWAN, S/O. DO. VAIKUNDATHIL, CHERTHALA SOUTH PANCHAYAT, WARD NO. 4., KURUPPANKULANGARA P.O., CHERTHALA. 10. SURENDRAN, S/O. THANKAMMA, THARAYIL VEEDU, PATTANAKKAD, VETTAKKAL P.O., ANDHAKARANAZHI, CHERTHALA. 11. RAJU, S/O. DO. IN DO. DO. 12. PRASANNA, D/O. DO. IN DO. DO. *ADDL. RESPONDENTS 5 TO 12 ARE IMPLEADED AS THE LRS OF DECEASED R4 AS PER ORDER DATED 27/8/03 ON CMP NO. 1606/02. R1 TO R3 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.R.SIDHARTHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P.S. GOPINATHAN, J. = = = = = = = = = = = S.A. NO. 674 OF 1999 = = = = = = = = = = = = = DATED THIS, THE 21ST DAY OF DECEMBER, 2010. J U D G M E N T The plaintiff in O.S. 96 of 1991 on the file of the Additional Munsiff, Cherthala, is the appellant. 2. The respondents are her brothers and sister. The 4th respondent, the sister of the appellant died pending this appeal and the legal heirs were impleaded as Respondents 5 to 12. The appellant instituted the above suit before the trial court seeking a decree for partition of the plaint A schedule immovable properties and B schedule movable properties, with a plea that plaint A and B schedule properties belonged to the father of the parties, late Kesavan. Kesavan died intestate and on his death plaint A and B schedule properties devolved upon the plaintiff and defendants 1 to 4 and thus she is entitled to 1/5 share over plaint A and B schedule properties. 3. The defendants 2, 3 and 4, in their joint written statement contended that Item No.1 belongs to the 4th defendant as a lessee and it is not partible as it was not belonging to Kesavan. A portion of item No.3 had been in the possession of third parties and the remaining 32 cents is in the A.S. 674/1999 2 possession of the third defendant as a lessee and it is also not liable for partition. 4. The parties were sent for trial. On the side of the plaintiff, PWs 1 to 5 were examined and Exts.A1 to A8 were marked. On the side of the contesting defendants, Exts.B1 and B2 were marked. A third party document was marked as Ext.X1. On appraisal of the evidence on record, the trial court arrived at a finding that plaint A and B schedule properties are partible except a portion measuring 14 cents in item No. 3 of A schedule and that the plaintiff is entitled to 1/5 share over plaint A and B schedule properties. Consequently, a preliminary decree for partition was passed. Aggrieved by the above preliminary decree, defendants 2 to 4 filed appeal as A.S. 11 of 1996 before the Sub Court, Cherthala. The appellate court found that 32 cents of property in item No. 3 is in the possession of the third defendant and remaining portion is in the possession of third parties and that the appellant had not succeeded to establish that over item No.3, Kesavan, the predecessor of the parties, had got any right or that it was inherited by the parties. Consequently, the appeal was allowed in part and the preliminary decree for partition in respect of item No. 3 was set aside. In all other respects, the decree and judgment of the trial court was confirmed. Assailing the above judgment and decree of the appellate A.S. 674/1999 3 court, the second appeal was filed. 5. I have heard the learned counsel appearing for the appellant and the contesting respondents and perused the appellate judgment as well as the evidence on record. The appellate court, while vacating the preliminary decree for partition of item No.3 of the plaint schedule property, had found that the plaintiff had not at all pleaded as to how late Kesavan obtained item No.3. The plaintiff as PW.2 had deposed that she had only hearsay information about the right of Kesavan over item No.3. Hearsay information wouldn't amount to any evidence. It is admitted that title of item No.3 is vested with one Sankara Panicker. The son of Sankara Panicker was examined as PW.3. He had to admit in cross examination that in the family partition, item No. 3 of plaint A schedule property was set apart to Sushama Kumari, one of his daughter. He has also no direct knowledge regarding the so called right of Kesavan over item No. 3 of the plaint schedule property. It was also found by the appellate court that as against the claim of the third defendant over 32 cents of the plaint schedule property, the plaintiff had not at all filed any replication. The appellate court had also taken note of the fact that before the trial court the plaintiff herself had conceded that 14 cents out of the plaint item No.3 is not available for partition. In the above circumstances, the appellate court A.S. 674/1999 4 arrived at a finding that the appellant had not succeeded in establishing that her father Kesavan had got any right over item No.3 which was inherited for partition. It is a question of fact answered by the appellate court on the basis of the evidence on record in favour of the respondents and against the plaintiff. In the absence of any reliable evidence to show that late Kesavan had any manner of right over item No.3 of plaint schedule property, I find that the appellate court was perfectly correct in declining partition over item No.3 of plaint A schedule properties. There is no material on record to arrive at a divergent finding. No question of law is involved so as to be answered in the second appeal. The second appeal is devoid of merits. Accordingly it is dismissed. The cost would come out of the estate. P.S. GOPINATHAN, (JUDGE) knc/- A.S. 674/1999 5 P.S. GOPINATHAN, J. = = = = = = = = = = = S.A. NO. 674 OF 1999 = = = = = = = = = = = = = DATED: 21ST DECEMBER, 2010. J U D G M E N T