IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 RSA.NO. 55 OF 2010() ------------------------------- AS.180/2009 OF ADDL. DISTRICT COURT, N. PARAVUR OS.519/1998 OF MUNSIFF COURT, ALUVA .................... APPELLANTS/APPELLANTS IN A.S/DEFENDANTS 1 TO 5 ---------------------------------------------------------------------------- 1. ALLY, AGED 65 YEARS, D/O.BHASKARAN AND W/O.NEELAKANTAN, RESIDING AT AJITHA NIVAS, KUMARANELLOOR P.O., NEAR KUMARANELLOOR TEMPLE, KOTTAYAM. 2. LEELA, AGED 61 YEARS, D/O.BHASKARAN AND W/O.PADMANABHAN, RESIDING AT KAVANATTU VEEDU, MADHUPPADA BHAGAM, KOOPARA, KOTTAYAM. 3. RAVI, AGED 59 YEARS, S/O.BHASKARAN, RESIDING AT PANAMAPARAMBIL, KUNNRTHERIKARA, ALUVA VILLAGE, ERNAKULAM. 4. LALITHA, AGED 50 YEARS, W/O.VASUDEVAN, RESIDING AT CHULLIPARAMBIL VEEDU, KANJANI KARA, THRISSUR DISTRICT. 5. DEVI, AGED 18 YEARS, D/O.VASUDEVAN, RESIDING AT CHULLIPARAMBIL VEEDU, KANJANI KARA, THRISSUR DISTRICT. BY ADV. SRI.S.RENJITH SRI.M.MANOJ KUMAR MALLIA RESPONDENT – RESPONDENTS – PLAINTIFFS - DEFENDANTS: ---------------------------------------------------------------------------------- 1. SANKUNNI, AGED 59, RESIDING AT PANAPARAMBIL, THALACODE BHAGAM, MULANTHURUTHI, KANAYANNOOR TALUK, KANAYANNOOR VILLAGE, ERNAKULAM. 2. VISWAMBHARAN, AGED 52, S/O.RAMAKRISHNAN, RESIDING AT MOLATHPARAMBIL, KUNNATHERI HOUSE, ALUVA. 3. SUSHEELA, AGED 48, RESIDING AT PARAKKAPARAMBIL, VALOOR, CHERUVALOOR P.O., MUKUNDAPURAM TALUK, ERNAKULAM. 4. RAJAMMA, AGED 44, D/O.RAMAKRISHNAN, RESIDING AT MOLATHUPARAMBIL, KUNNETHERI, ALUVA. 5. SUDHA, AGED D/O.RAMAKRISHNAN, RESIDING AT PALLAM VEETTIL, KUNNESSERI, THOTTUMUGAM, KUTTAMASSERI, ALUVA. 6. AJITHA, AGED 29, D/O.RAMAKRISHNAN, RESIDING AT MOLATHPARAMBIL, KUNNATHERI, ALUVA. 7. BALAN, AGED 37, S/O.RAMAKRISHNAN, RESIDING AT MOLATHPARAMBIL, KUNNATHERI KARA, ALUVA VILLAGE. 8. SUNEENDRAKUMAR, AGED 33, S/O.RAMAKRISHNAN, RESIDING AT MOLATHPARAMBIL, KUNNATHERI, ALUVA. ADV. SRI.SHAJI P.CHALY FOR R1TO8 SRI.R.ARUN RAJ FOR R1TO8 SRI.MANU ROY FOR R1TO8 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 1.3.2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.55 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of March, 2010 J U D G M E N T --------------------- Second Appeal arises from judgment and decree for partition passed by the court of learned Munsiff, Aluva in O.S. No.519 of 1998. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. According to the plaintiffs suit property belonged to the late Kalyani as per Ext.A1, assignment deed No.4428 of 1118 M.E. Kalyani died in the year 1976 leaving behind Bhaskaran, Ramakrishnan and Sankunni (plaintiff No.1) as her legal representatives. Bhaskaran died in the year 1986 and his wife died in the year 1998. Defendant Nos.1 to 3 are children of the said Bhaskaran. Defendant No.4 is the wife of a predeceased son of the said Bhaskaran by name, Vasudevan and defendant No.5 is the daughter of defendant No.4. Ramakrishnan died in the year 1991 leaving behind plaintiff Nos.2 to 6 and defendant Nos.6 and 7 as his legal representatives. According to the plaintiffs, plaintiff No.1 (son of the late Kalyani) has got 1/3 share in the suit property while plaintiff Nos.2 to 6 and defendant Nos.6 and 7 have got 1/3 share. R.S.A. No. 55 of 2010 -: 2 :- Remaining 1/3 share go to defendant Nos.1 to 6. It is also the contention of the plaintiffs that in the meantime Bhaskaran obtained Patta in respect of the suit property, according to them fraudulently as PF.51/1970 which does not affect their right in the suit property. Defendant No.3 (son of late Bhaskaran) alone contested the suit. He claimed that property belonged to his father the late Bhaskaran as per Patta No.PF.51/1970 issued by the Land Assignment Special Tahsildar, Perumbavoor and on the death of Bhaskaran the said property devolved on defendant Nos.1 to 5. Defendant No.3 and his father constructed a house in the suit property. He claimed that Patta No.PF.71/1970 issued in favour of the late Bhaskaran is legal and binding on all concerned. It is also the contention of defendant No.3 that out of the property assigned to the late Bhaskaran as per Patta No.PF.51/1970 he gifted three cents to his son Vasudevan as per gift deed No.1053 of 1985, copy of which is Ext.B1. Later legal representatives of the late Bhaskaran partitioned the property as per document No.1512 of 1988, a copy of which is Ext.B2. Trial court observed that Patta No.PF.51/1970 is not produced and that the said Patta is not shown to be in respect of the suit property and plaintiffs are not entitled to the declaration prayed for regarding the said Patta. But holding that plaintiffs have title over the property R.S.A. No. 55 of 2010 -: 3 :- as per Ext.A1 along with defendant No.1 a preliminary decree was passed. That was confirmed by the learned Additional District Judge, North Paravur in A.S. No.180 of 2009. Hence this Second Appeal urging by way of substantial questions of law whether courts below erred in appreciating the facts and circumstances of the case, whether statement/evidence given in an earlier case can be relied and whether assignment of the suit property as per the Patta plaintiffs could claim title over the property. It is contended by learned counsel for the appellants urging the above points that the findings of the courts below are not correct. It is the further contention of learned counsel that since trial court refused to grant a declaration as prayed for, preliminary decree for partition cannot be sustained. According to the learned counsel disputed property was not measured with reference to the old survey number of the property. Learned counsel for plaintiffs would contend that no substantial question of law is involved since the decision of the trial court is based on appreciation of evidence on record. 3. It is not disputed that for the same relief plaintiffs filed O.S. No.89 of 1994. In that case an Advocate Commissioner was appointed to identify the suit property and prepare plan with the assistance of a Taluk Surveyor. Property was measured and report R.S.A. No. 55 of 2010 -: 4 :- and plan were submitted. Exhibits A4 to A7 are certified copies of the reports and plans. While so that suit was withdrawn with liberty to the plaintiffs to file a fresh suit as revealed from Ext.A3, order on I.A. No.2298 of 1998 in O.S. No.89 of 1994. It is thereafter that the present suit was filed. It is contended by learned counsel for the defendants that courts below went wrong in relying on Exts.A5 to A7, reports and plans since those reports and plans were not obtained in the present case and are only previous statements or evidence in another case. I am afraid, that contention cannot be accepted since it is not disputed that previous suit was concerning very same property between the same parties for very same reliefs and the Taluk Surveyor and Advocate Commissioner who prepared Exts.A4 to A7 are examined in the present suit as P.Ws.2 and 3 respectively, with liberty to cross-examine them which the defendants availed. Thus Exts.A4 to A7 are admitted in evidence in the proper manner through P.Ws.2 and 3. As such Exts.A4 to A7 did not suffer from any infirmity as contended. 4. So far as declaration prayed for by the plaintiffs and its refusal by the trial court are concerned it is seen from paragraph 11 of judgment of the trial court that trial court proceeded on the basis that the Patta is not in respect of the suit property and the R.S.A. No. 55 of 2010 -: 5 :- plaintiffs did not adduce evidence to show that Patta related to the suit property. In fact it is the case of contesting defendant also that Patta related to the suit property and it was issued to his father, the late Bhaskaran. Hence proof that Patta related to the suit property was not required. However, contesting defendant did not produce the Patta in the trial court or first appellant court (that document is produced in this Second Appeal along with I.A. No.138 of 2010). 5. It is true that trial court refused to grant the declaration prayed for. But in my view that does not in any way affect the right of plaintiffs to seek partition of the property since even if Patta related to the suit property it is possible for them to seek partition notwithstanding that Patta since it is admitted that Patta was issued without notice to the plaintiffs and the latter can prove their title over the property notwithstanding the subsequent issue of Patta in favour of the late Bhaskaran. In fact that there was no notice to any of the plaintiffs while issuing the Patta is admitted by D.W.1. Hence that Patta cannot affect the right claimed by the plaintiffs. In the above circumstances even without granting declaration prayed for by the plaintiffs it was open to the plaintiffs to seek partition of the property. I must also bear in mind that it is not as if trial court R.S.A. No. 55 of 2010 -: 6 :- refused to grant declaration as property belonged to the late Bhaskaran as per the Patta. Hence refusal to grant declaration does not in any way affect right of plaintiffs to get a decree for partition. 6. Then the question is whether in the absence of measurement of the property as per the old survey number as claimed by defendant No.3 there is want of proper identification of the property. So far as that claim of defendant No.3 is concerned it is necessary to refer to the evidence on record. In Ext.A1 extent of property acquired by the late Kalyani is stated as 23 cents (property is described as Kambu measurement) and comprised in Sy. No.428/1/E. That property in Ext.A1 is bounded by pathway and property of jenmi on the east. Other boundary descriptions are given by the name of respective property owners. Exhibit A2 series are receipts for payment of revenue on 22.9.1992 and 25.1.1994 concerning 23 cents in Sy. No.428/1/E4. Pattadar of the said property is shown as the late Kalyani. Exhibit A4 is the certified copy of plan prepared by P.W.2, Surveyor in O.S. No.89 of 1994. There, the old survey number of the property is stated as 436/6 and resurvey number is shown as 428/1/E4 (as in Ext.A1). On measurement extent of property was found to be 20 cents including a portion given for widening of the road on the eastern R.S.A. No. 55 of 2010 -: 7 :- side. The boundary descriptions are given by survey numbers. In the remarks column in Ext.A4 it is stated that property was measured and plan (Ext.A4) was prepared as per resurvey records and documents produced by both parties were taken into account. Old survey number mentioned in the documents produced by the parties differed. In Ext.A4 Sy.No.428/1/E was found to be the correct survey number as against Sy.No.436/6 claimed by defendant No.3. Thus going by Exts.A4 to A7 there was proper measurement of the properties with reference to the documents produced by the parties as well as survey records. As per the survey records property claimed by plaintiffs as per Ext.A1 and the property claimed by defendants as per Patta issued in the name of the late Bhaskaran is one and the same. Remarks column of Ext.A4 as stated above states old survey number as 428/1/E (as stated in Ext.A1) which means that the old survey number referred to in the Patta relied on by defendant No.3 is not correct. That being the situation there is no point in contending that properties should have been measured with reference to the old survey numbers. Exhibit B4 is the mahazar dated 21.10.1988 prepared by the Village Officer in connection with the loan availed by defendant No.3. There, five cents out of the total extent of the property is R.S.A. No. 55 of 2010 -: 8 :- earmarked. It is relevant to note that the survey number of property covered by Ext.B4 is stated as 428/1D1. Exhibit B5 is the extract of the Thandaper and Ext.B6, extract of the building tax register in respect of the total extent of 1.36 acres. There also survey number mentioned is 428/1D1. Defendant No.3 has no case that Patta is issued in respect of the property covered by Sy.No.428/1D1. I have gone through the evidence of P.Ws.2 and 3 and find that apart from some suggestions there is no serious cross- examination of those witnesses on behalf of defendant No.3. Some suggestions are made that measurement is done to help the plaintiffs, etc., which they denied. Moreover, when defendant No.3 was examined as D.W.1 it was suggested to him that his grand parents, Kalyani and her husband were staying in the old house situated in the suit property. He did not know where his grand parents were residing. He pleaded a blissful ignorance about that which cannot be accepted. In his evidence it is stated that the property referred to in Ext.A1 is situated north to the property belonging to SNDP, Kunnatheri. But at the time when properties were measured (in O.S. No.89 of 1994) with notice to defendant No.3 there was no such case for defendant No.3. If actually he had a case that property referred to in Ext.A1 is different, it was open to R.S.A. No. 55 of 2010 -: 9 :- him to point out the same to P.Ws.2 and 3. It has come in evidence through D.W.1 that there was an old hay thatched house in the property which was reconstructed by the late Bhaskaran. Thus it would appear that even before that structure came into existence there was a structure in the suit property where according to the plaintiffs their grand parents were living. 7. I have gone though the judgment and decree under challenge and find that the trial court has found that the suit property is covered by Ext.A1 in which case parties are entitled to get partition. That finding has been confirmed by the first appellate court. The findings are made on a proper appreciation of the evidence and as such none of the questions urged by way of substantial questions of law do arise for a decision. Second Appeal is dismissed in limine. Interlocutory Application No.137 of 2010 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv