IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 MJC.No. 562 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN SA.689/1998 Dated 13/12/2010 .................... PETITIONER/APPELLANT -------------------- T.J.SOLOMON, THUMPAPARAMBIL, KOMMADY WARD, ARAIAD SOUTH VILLAGE, SOUTH ARIAD MURI. BY ADV. SRI.H.B.SHENOY RESPONDENT(S): --------------- T.J.GRACY KUTTY, C/O.MICHAEL, ARATTUKULAM, CHENNAVELI P.O. FROM THUMPAPARAMBIL, BAKE HOUSE, ALAPPUZHA. ADV. Sri.N.Asok Kumar THIS MISCELLANEOUS JURISDICTION CASE HAVING BEEN FINALLY HEARD ON 01/03/2011, ALONG WITH MJC NO. 563 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. --------------------------------------- M.J.C.Nos. 562 & 563 OF 2010 IN S.A.Nos.689 & 660 OF 1998 ----------------------------------------- Dated this the 1st day of March, 2011 C O M M O N O R D E R ~~~~~~~~~~~ These are petitions filed by the appellant seeking orders to restore the appeals which were dismissed for default. The Second Appeals were posted for hearing on 10.12.2010. The appellant didn't turn up. After hearing the respondent, the appeals were posted to 13.12.2010 for disposal. Then also, there was no representation. Consequently, the appeals were dismissed. Now these restoration petitions. Both petitions are accompanied by affidavits sworn by an Advocate attached to the office of the counsel for the appellant. In the affidavit accompanying the petition, it was stated that the deponent was engaged in some other court and so he could not represent the appellant. With these pleadings, the appeals were sought to be restored to file. 2. I heard the learned counsel appearing for the petitioner, Smt.Lakshmi B.Shenoy and Sri.N.Asok Kumar, the MJC.Nos.562/2010& 563/2010 2 learned counsel appearing for the respondent. Having heard either side, I find little merit in the petitions as well as in the Second Appeals. 3. The plaint schedule property involved in both suits namely O.S.565/92 and 566/92 on the file of the Principal Munsiff, Alappuzha is one and the same. The appellant instituted the suit O.S.565/92 seeking a decree of permanent prohibitory injunction, wherein it is stated that the plaint schedule property is belonging to the appellant and the defendant, who is the sister of the appellant and that the appellant had been running a bakery business and that the defendant had been attempting to obstruct the running of the same for which she has no manner of right and sought for a decree of permanent prohibitory injunction. 4. Thereupon, the defendant along with her mother instituted the suit O.S.566/92 seeking a decree for partition and separation of 14/24 share of the 1st plaintiff over the plaint schedule properties by metes and bounds. It is further MJC.Nos.562/2010& 563/2010 3 contended that the bakery was run by them and that the appellant had no manner of right over the business. They also sought for a decree of permanent prohibitory injunction against the appellant from interfering with the bakery business. 5. The appellant, in the second suit also admitted the right of the 1st plaintiff in O.S.566/92. But contended that there was a family settlement and hence the 1st defendant is not entitled to a decree for partition. Both suits were tried jointly and by a common judgment dated 26.7.1994, the learned Munsiff arrived at a finding that there was a family settlement as pleaded by the appellant. Consequently, the suit O.S.565/92 was decreed and the other suit was dismissed. Assailing the above decrees and the common judgment, the respondents preferred A.S.105/1994 and 106/94 before the District Judge, Alappuzha. The learned District Judge negatived the plea of family settlement and arrived at a finding that the defendant in the suit O.S.No.565/92 who is the 1st plaintiff in the other suit and the appellant are co-owners and that the 1st plaintiff in O.S.566/92 is entitled to a decree for partition as prayed for. Consequently, both appeals were allowed by a common judgment. While setting aside the decrees MJC.Nos.562/2010& 563/2010 4 and common judgment of the trial court O.S.565/92 was dismissed. In the other suit, a preliminary decree for partition was passed as prayed for. Assailing the above judgment and decrees, these Second Appeals were preferred. 6. The fact that the plaint schedule properties were obtained by the appellant along with three of her sisters, of whom one of the sisters is the defendant in O.S.565/92 and the 1st plaintiff in the other suit by virtue of a gift deed dated 29.1.1974 is not disputed. It was also admitted that the other two sisters executed release deeds in respect of their right over the property. Ext.B3 is the release deed executed by Molykutty. It is seen that the release deed was executed for the consideration paid in cash on execution of the release deed. From the contesting respondent, no any such release deed was obtained. There is also nothing to show that anything was given to the contesting respondent in pursuance to the settlement or that she had at any time relinquished her right. The learned District Judge, on appraisal of the above facts and circumstance of the case, arrived at a finding that there was no family MJC.Nos.562/2010& 563/2010 5 settlement as pleaded by the appellant. It is a finding of facts. No question of law is involved. The appellant was non suited in his suit and the other suit was decreed on arriving at a finding that there was no family settlement as pleaded by the appellant and the contesting respondent is a co-owner entitled to get partition. In that finding, absolutely no question of law is involved. The decrees and judgment impugned are based upon the finding of facts. Going by the judgment impugned and having heard either side, I find no error committed by the appellate court in appreciating the evidences which is to be rectified in Second Appeal. The judgment and decrees impugned are in tune with the pleadings and evidence. In the above circumstance, I find no merit in these petitions as well as in the appeals. The petitions are accordingly dismissed. (P.S.GOPINATHAN, JUDGE) ps