IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 RSA.No. 344 of 2009() --------------------- AS.336/2003 of DISTRICT COURT, PALAKKAD OS.64/1997 of SUB COURT, OTTAPPALAM .................... : APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 6 ------------------------------------------------ 1. PADMINI, W/O.LATE P.VIJAYAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 2. MANOJ, S/O.LATE P.VIJAYAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 3. AJITH, S/O.LATE P.VIJAYAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 4. BINDU, D/O.LATE P.VIJAYAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 5. PRIYA, D/O.LATE P.VIJAYAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 6. PREETHA, D/O.LATE P.VIJAYAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) SRI.VINOD RAVINDRANATH RESPONDENT(S): PLAINTIFFS AND DEFENDANTS 7 TO 9 ----------------------------------------------- 1. RADHA, W/O.LATE PANAMKADAVATH GANGADHARAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 2. RAMESH BABU, S/O.LATE PANAMKADAVATH GANGADHARAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 3. SURESH BABU, S/O.LATE PANAMKADAVATH GANGADHARAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 4. JAYARAJAN, S/O.LATE PANAMKADAVATH GANGADHARAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 5. KRISHNAPRASAD, S/O.LATE PANAMKADAVATH GANGADHARAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 6. SHOBA, D/O.LATE PANAMKADAVATH GANGADHARAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 7. KALYANI, M/O.LATE PANAMKADAVATH GANGADHARAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 8. RATNAKUMARI, W/O.LATE PANAMKADAVATH GOPINATHAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 9. MANJULA, D/O. LATE PANAMKADAVATH GOPINATHAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. 10. MURALEEKRISHNAN, S/O.LATE PANAMKADAVATH GOPINATHAN, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM AND TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO 791 OF 2009 IN R.S.A. 344 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE es HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.344 of 2009 ---------------------------------------- Dated this the 3rd day of June, 2009 JUDGMENT The defendants 1 to 6 in O.S. 64/1997 on the file of the sub court Ottappalam are the appellants herein. . The suit was filed by the plaintiffs for partition. The trial court passed a preliminary decree dividing the plaint schedule property into three equal shares. Out of the 3 shares the trial court allotted one share to the supplementary plaintiffs 2 to 8 together, defendants 1 to 6 and defendants 7 to 9 together 1 share each. The suit was decreed . Against the judgment and decree of the suit the defendants 1 to 6 filed appeal as A.S. 336/2003 before the District Court, Palakkad and the lower appellate court also concurred with the trial court's judgment. The parties hereinafter referred to as defendants and plaintiffs as arrayed in the suit. 2. Before the trial court, the defendants raised contention that the plaint schedule property property is only half a cent of land and the building situated therein and that it absolutely belongs to themselves since the same was constructed by their predecessor in interest by spending his own money and they were in possession and enjoyment of the same jointly. This question was elaborately considered by the trial court and held that there was no evidence to show that the building belongs to the defendants exclusively and therefore the same was also R.S.A. No. 344 of 2009 -2- liable for partition along with the landed property. The same question was re-agitated before the lower appellate court by the defendants. The lower appellate court also held that there is no acceptable and reliable evidence to show that the defendants' predecessor-in-interest had constructed the building by spending his own money and concurred with the trial court's judgment. 4. It is submitted by the appellants/ defendants before this court that they are in occupation of the building jointly before and after the demise of their predecessor in interest and therefore the building may be allotted to their share. Admittedly the building is situated in ½ Cent. I direct the trial court, to take into consideration the facts that the defendants had possessed and enjoyed the building in continuation with their predecessor for the last more than 3 decades and after the demise of their predecessor, they are continuing to possess and enjoy the same, and to make a legal and equitable allotment of shares while passing the final decree Apart from the said observation I find nothing on merits for interference with the judgments and decrees of the courts below in exercise of the powers conferred under Section 100 of the C.P.C. I also agree with the findings of facts recorded by the courts below . The appeal is without any merit and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 344 of 2009 ---------------------------- JUDGMENT 3rd June, 2009