IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 RSA.No. 314 of 2010() --------------------- AS.32/2006 of DISTRICT COURT, PALAKKAD OS.490/1993 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------- NARAYANANKUTTY NAIR, AGED 69 YEARS, S/O.KUTTIPENNAMMA, MADAMBATH VEEDU, KINANELLUR, PALAKKAD. . SRI.NARAYANANKUTTY NAIR(PARTY IN PERSON) RESPONDENTS/RESPONDENTS/DEFENDANTS ------------------------- 1. RAMANKUTTY NAIR @ P.R.KUTTY, AGED 72 YEARS, S/O.KUTTIPENNAMMA, 1555, SECOND STAGE, RAJAJI NAGAR, BANGALORE. 2. V.K.KAMALAKSHI AMMA, AGED 87 YEARS, D/O.BHARGAVI AMMA, GOPALA MANDIRAM, KUNAVALLUR, PALAKKAD. 3. V.K.PADMANABHAN, AGED 56 YEARS, S/O.CHINNAMANI AMMA, GENERAL MANAGER, THRISSUR COTTON SWEING MILLS (P) LTD., NATTIKA, THRISSUR. 4. APPUKUTTAN (DIED). 5. SIKAMANI, AGED 63 YEARS, S/O.CHARALS, SECOND MAIN STONE BUS STOP, KINAVALLUR, PALAKKAD. 6. V.V.KANNAN, AGED 40 YEARS, S/O.VASU, VILWANKADU, KINAVALLUR AMSOM, PALAKKAD. RSA NO.314/2010 2 7. PUSHPA, W/O.APPUKUTTAN. 8. ANIL KUMAR, S/O.APPUKUTTAN. 9. ANITHA.K.A.,D/O.APPUKUTTAN. (RESPONDENTS 7 TO 9 ARE RESIDING AT NJARAKKOTTU VEEDU, MANGAKKADU, KINAVALLUR.) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.314 of 2010 -------------------------------------- Dated this the 22nd day of March, 2010. JUDGMENT Appellant/plaintiff has appeared in person and argued his case. 2. Suit is for partition of plaint A and B schedule properties. According to the appellant the said items originally belonged to Puthumana wherefrom appellant's mother, Kuttipennamma and her brother, the late Govinda Panicker got kudiyiruppu right over the said properties. They effected partition of the said properties as per document No.208 of 1937 as per which plaint A schedule was allotted to Kuttipennamma and plaint B schedule was allotted to the late Govinda Panicker. Later Govinda Panicker created lease over plaint B schedule property in favour of Kuttipennamma on 7.7.1938 and thus Kuttipennamma was in possession and enjoyment of plaint B schedule property. On the death of Kuttipennamma plaint A and B schedules have devolved on appellant/plaintiff and respondent No.1/defendant No.1, his brother. Appellant demanded half share in the said properties. Respondent No.1 did not contest the suit. Respondent No.2, wife of late Govinda Panicker and Respondent No.3 contended that after partition in the year 1937 plaint B schedule was in the possession and enjoyment of the late Govinda Panicker. They denied that there was any lease of plaint B schedule in favour of Kuttipennamma. They contended RSA No.314/2010 2 that documents if any created in respect of alleged lease are fraudulent. It is contended that Kuttipennamma, appellant or respondent No.1 never had possession of plaint B schedule. On the death of Govindan Panicker plaint B schedule devolved on respondent No.2. She purchased jenm right as per order in Suo Motu Proceeding No.432 of 1979. When appellant attempted to trespass into plaint B schedule, respondent No.2 filed O.S.No.303 of 1970 against appellant and obtained a decree for prohibitory injunction. Though appellant filed A.S.No.230 of 1974 and S.A.No.320 of 1976 those appeals were dismissed. Respondent No.2 later gifted plaint B schedule to her nephew as per document No.831 of 1981. Thereafter there was subsequent assignment in favour of respondent No.4 onwards. Respondent No.6 ultimately purchasing plaint B schedule as per document No.670 of 2003. Trial court found that plaint A schedule is partiable among appellant and respondent No.1 and accordingly gave preliminary decree for partition. Prayer for partition of plaint B schedule was disallowed. First appellate court has confirmed that finding. Hence the Second Appeal at the instance of appellant/plaintiff urging by way of substantial questions of law whether revenue authorities could issue basic tax receipt to a person who was holding land as per a verumpatta kudiyiruppu as borne out by Ext.A2 in Ext.B4, judgment in O.S.No.490 of 1993 produced by the contesting respondents and whether courts below are justified in finding that plaint B schedule is not partiable. Appellant/plaintiff contended that though it is the contention of respondent No.2 onwards that Govinda Panicker has been in RSA No.314/2010 3 possession of plaint B schedule from 1937 onwards, no receipt for payment of revenue to the Government has been produced except a few receipts produced in O.S.No.303 of 1970. It is also the contention of the appellant that finding of courts below that plaint B schedule is not partiable is unsustainable. 3. The dispute is only regarding partiability of plaint B schedule. Admittedly as per partition deed No.208 of 1937 plaint B schedule was allotted to the share of the late Govinda Panicker, predecessor-in-interest of respondent No.2. Claim of appellant/plaintiff is that the said Govinda Panicker had on 7.8.1938 (ie. immediately after partition as per partition deed No.208 of 1937) created a lease in favour of Kuttipennamma, his sister. What is available to prove the alleged lease in favour of Kuttipennamma is Exts.A2 to A8 and the evidence of PW3. Ext.A2 is a copy of patta chit dated 7.5.1938 allegedly executed by the late Govinda Panicker in favour of Kuttipennamma. Exts.A2 to A8 are receipts for alleged payment of pattam to the said Govindan Panicker. These documents are attempted to be proved through PW3. PW3 was aged about 80 years at the time of giving evidence and courts below have observed from her evidence that at that time on account of defective vision she was not able to identify the handwriting or signature though she asserted in her chief examination that Ext.A2 to A8 are in the handwriting of and signed by the late Govinda Panicker. In cross examination she stated that she cannot identify the handwriting due to her old age and defect of vision. It is revealed that the cross- RSA No.314/2010 4 examining counsel had handed over the original plaint in the case to PW3 and she was asked whose handwriting it was. The answer was that the plaint is in the handwriting of Govinda Panicker who died much before institution of the suit. It is in the above circumstances that identification of the disputed handwriting/signature in Exts.A2 to A8 attempted to be proved through PW3 was not accepted by the courts below. Courts below observed that though appellant/plaintiff is relying on Exts.A2 to A8 there was no mention of those documents in O.S.No.303 of 1970 nor were those documents produced in that case. So far as evidence of appellant as PW1 is concerned, he stated that during the period of around a year after the execution of partition deed No.208 of 1937 and the alleged lease in favour of Kuttipennamma the late Govinda Panciker had leased the very same property in favour of Chinnu Amma and then to one Murukan, got back plaint B schedule from Murukan and leased the same to Kuttipennamma. Courts below found that there is no reliable evidence to prove such lease transactions and that it is highly improbable to think that there happened to be three leases over the same property within a period of one year. 4. A further fact which prevailed upon courts below is the finding in O.S.No.303 of 1970 as confirmed in appeal and Second Appeal that respondent No.2 was in possession of plaint B schedule. Courts below took note of the fact that respondent No.2 had obtained purchase certificate in Suo Motu Proceeding. Mere fact that in this case receipts for payment of revenue is not produced by RSA No.314/2010 5 the contesting respondents is not sufficient to hold that they had no possession of plaint B schedule property particularly in the light of finding in O.S.No.303 of 1970 as confirmed by the appellate and second appellate courts. 5. According to the appellant/plaintiff, respondent No.2 dispossessed him from plaint B schedule property with police assistance on 19.9.1986 but the suit for partition was preferred only after about seven years (in the year 1993). It is in the above circumstances that the claim of lease over plaint B schedule was found against and appellant was non-suited. The decision of the courts below rest on a proper appreciation of the evidence. Having gone through the judgments under challenge and hearing the appellant in person I find that no substantial question of law is involved requiring a decision. Resultantly Second Appeal is dismissed in limine. I.A.No.801 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks