IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 RSA.No. 3 of 2009() ------------------- AS.NO.7/2002 OF ADDITIIONAL SUB COURT, NORTH PARAVUR DATED 29.11.2006 OS.717/1998 OF MUNSIFF COURT,ALUVA DATED 22.11.2001 .................... APPELLANTS/APPELLANTS/DEFENDANTS ------------------------------------------------------------- 1. PAULACHAN, S/O. THOMA, PANACHICKAL HOUSE, MALAYATOOR VILLAGE, MALAYATOOR KARA, ALUVA. 2. XAVIER, S/O. THOMA, -DO- BY ADVS. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT/RESPONDENT/PLAINTIFF --------------------------------------------------------- THOMAS, S/O. THOMA, PANACHICKAL HOUSE, MALAYATOOR VILLAGE, MALAYATOOR KARA, ALUVA. BY ADVS. SRI.GEO PAUL SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER SRI.K.V.REJANISH SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.M.B.SANDEEP SRI.NOEL JOSEPH THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Shg/ THOMAS P. JOSEPH, J - - - - - - - - - - - - - - - - - - - - - - - R.S.A.No. 3 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2009 J U D G M E N T Respondent appears through counsel. Heard both sides. Appellants/defendants who successively lost in the courts below in a suit for partition have come up with this Second Appeal urging the following substantial questions of law: a) When the father who purchased the property in the name of children has tendered evidence that an oral partition was effected among his children and the circumstances like construction of a house by plaintiff in item No.1 and separate possession of other items by other children etc., are evidence of an oral partition, have not the courts below erred in not relying on such unchallengeable evidence? b) When parties set up oral partition, have not the courts below committed illegality in holding that oral partition is not proved as there is no documentary evidence? c) Is not the evidence of DW2, father and the proved circumstances sufficient enough to hold that there is an oral partition of the plaint schedule property? R.S.A.No. 3 of 2009 -2- 2. Appellants and respondent are children of DW2. According to the respondent, appellants and respondent jointly purchased the suit properties as per assignment deed No.1077 of 1973 and since the appellants were then minors they were represented in the Deed by DW2, father. Appellants and respondent have 1/3 share each in the property. Respondent claimed that he is residing in a portion of the suit properties effecting improvements but the properties are in joint possession and hence he demanded partition and separate possession of his 1/3 share. Appellants resisted the suit contending that the properties were purchased by DW2 with his funds though in the name of appellants and respondent and that DW2, father was in actual possession of the properties. While so, in the year 1976 DW 2 effected an oral partition and Item No.I, 54 cents was allotted to the respondent. Item No.II, 1.05 acres was allotted to the appellants together. Respondent constructed a house in item No.I and is separately enjoying that property. Appellants are in separate possession and enjoyment of item No.II. As such, there is no property available for partition. Respondent gave evidence as PW1 and proved Ext. A1, receipt dated 05.06.1992 for payment of revenue. Ext. C1 is the Report of the Advocate Commissioner. Appellant No.2 gave evidence as DW1. DW2 is the father. Both of them gave evidence regarding the alleged partition. DW2 claimed that he purchased the R.S.A.No. 3 of 2009 -3- property in the year 1973 and in 1976 at the time of marriage of respondent, properties were divided into three sharers and then onwards parties are in separate possession and enjoyment of their respective shares. As per Ext. C1, Advocate Commissioner's report, respondent is residing in Item No.I. Courts below found that oral partition is not proved and accordingly, preliminary decree was passed. It is contended by learned counsel for appellants in this Second Appeal that in the light of evidence of DW2, courts below ought not to have found against the oral partition. Learned counsel for respondent would contend that no substantial question of law is involved and that on evidence the courts below found in favour of the respondent. 3. To be a substantial question of law, the question must be debatable not previously settled by law or a binding precedent or must have a material bearing on the decision of the case (See Boodireddy Chandraih v. Arigela Laxmi - 2007 (4) KLT SN 40 - Case No.41- SC). It has been consistently held that on a finding of fact no interference is required in Second Appeal unless the finding is perverse or is based on no evidence. In this case, it is true that DWs 1 and 2 have given evidence about the alleged oral partition. But contra evidence is given by respondent as PW1. Concededly, there is no witness to the alleged oral partition. The suit is filed in the year 1998. But Exhibit A1, the receipt dated 05.06.1992 would show that revenue R.S.A.No. 3 of 2009 -4- was paid by the co-owners for the entire property comprised in separate survey numbers. If actually there was an oral partition in the year 1976, mutation would have been effected in the name of the respective sharers and they would have been paying revenue for the respective shares allotted to them. Appellants have not produced any receipt for payment of revenue by themselves for the share allegedly alloted to them. On the other hand, Exhibit A1 which is almost six years before the institution of the suit would indicate joint possession and enjoyment of the entire properties. 4. So far as evidence of DW2, the father is concerned, appellate court observed it as interested version. Learned counsel for appellants contended that there is no reason why DW2 should be interested and, it not stated that DW2 has any reason to side with any of the parties. In reply learned counsel for respondent pointed out from evidence of DW2 that according to him the demand of partition may have been raised by the respondent since appellants are progressing. That indicates that DW2 was mentally siding with the appellants. That probably is the reason why courts below described evidence of DW2 as interested. The mere fact that after the marriage of the respondent he has been residing in the building in Item No.I which is not shown to be constructed by him is not sufficient to show that there was oral partition. The finding of the courts below that there was no oral R.S.A.No. 3 of 2009 -5- partition and that the property is available for partition as demanded by respondent rest on a proper appreciation of the oral and documentary evidence produced before it. It is not as if the finding of the courts below is either perverse or based on no evidence so that any substantial question of law is involved. On hearing counsel on both sides and going through the judgments under challenge, I do not find any substantial question of law requiring consideration by this court. Accordingly, the second appeal is dismissed. THOMAS P. JOSEPH, JUDGE shg