IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 435 of 2010()
1. LATHA GEORGE, W/O. GEORGEKUTTY,
... Petitioner
2. GEORGE KUTTY, S/O. K.V.POTHEN,
Vs
10. KUNJANNAMMA, D/O. K.V.POTHEN,
... Respondent
For Petitioner :SRI.JOHN VARGHESE
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :02/06/2010
O R D E R
P.BHAVADASAN, J.
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R.S.A No.435 of 2010
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Dated this the 2nd June, 2010
J U D G M E N T
Defendants in O.S No.225/2006 before the Munsiff’s
Court, Changanacherry are the appellants herein. The
parties and facts hereinafter referred to as are available
before the trial court.
2. The suit was one for partition and permanent
prohibitory injunction. According to the plaintiff, plaint
schedule property is a part of larger extent which
originally belonged to K.V Pothen, the deceased father of
plaintiff who obtained it by gift deed No.2001/86 of
Thengana S.R.O. Late K.V. Pothen divided his property
into five shares among the plaintiff, her brother and
sisters as A to D and E schedule. K.V Pothen retained “E’
schedule in the gift deed as the joint share of himself and
his wife Saramma. That property was in the joint
possession and enjoyment of K.V. Pothen and Saramma.
It seems that Saramma transferred her share over E
schedule property in favour of first defendant by gift deed
No. 210/95 of Thengana Sub Registry Office. First
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defendant is the wife of the 2nd defendant and daughter in
law of Saramma. The plaintiff is the sister of the 2nd
defendant. Later by settlement deed No.1414/2000 of
Thengana S.R.O, K.V Pothen settled his remaining one half
oodukure right over the ‘E’ schedule property in gift deed
No.2001/86 in favour of the plaintiff. The ‘E’ schedule
property in gift deed No.2001/6 is the plaint schedule
property .
3. Defendants resisted the suit. It is stated that C
schedule property is lying on the northern side of the plaint
schedule property. It is pointed out that by gift deed
No.210/95 Saramma had gifted her share to the 1st
defendant and the 1st defendant and his family are residing
there. It is claimed that property over which plaintiff and
defendants had joint right had already been partitioned and
boundaries have been put up regarding the respective
shares. On the basis of these contentions, they prayed for
dismissal of the suit.
4. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
PW1. Exts. A1 to A3 were marked from the side of the
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plaintiff. DW1 and DW2 and Exts.B1 to B5 were marked from
the side of the defendants.
5. On valuation of the evidence of the case, the court
below found that the claim putforward by the defendants that
E schedule property had already been partitioned had not
been substantiated. Preliminary decree was passed granting
1/2 share of the property to the plaintiff.
6. The matter was taken up in appeal by the
defendants as A.S No.31/2008 before the District Court,
Kottayam. The appellate court independently evaluated the
evidence and came to the same conclusion and dismissed the
appeal. It is against those concurrent findings, the present
appeal has been lodged.
7. Learned counsel appearing for the appellants
pointed out that the court below misconstrued the evidence
on record. According to the learned counsel there is
sufficient evidence to show that the partition putforward by
the defendants had been effected and the parties had taken
possession of their respective shares. The courts below were
not justified in rejecting the contentions of the appellants.
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8. The contention now taken up before this Court
were not accepted by the courts below. If as a matter of fact,
there was a partition and separation of the respective shares
as contended by the appellant the least the appellant could
have done was to take a commission to establish the said fact.
9. Appellants relied on Ext.B4 which is a copy of the
plaint in the suit filed by the respondents herein to contend
for the position that there was partition. That suit was later
withdrawn.
10. Ext.B1 also does not advance the case of the
appellants much. Both the courts below concurrently found
that there is no evidence adduced by the defendants to show
that partition set up by the defendants is true. That being
the finding of fact does not call for any interference by this
Court. No infirmity could be pointed out by the learned
counsel for the appellants. This appeal is without merits and
is liable to be dismissed. I do so.
P.BHAVADASAN, JUDGE
ma
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