IN THE HIGH COURT OF KERALA AT ERNAKULAM
AFA.No. 48 of 1994()
1. KURIAKOSE,S/O.VARKEY
... Petitioner
Vs
1. POULOSE,S/O.VARKEY
... Respondent
For Petitioner :SRI.P.N.K.ACHAN
For Respondent :SRI.P.V.JYOTHI PRASAD
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :18/08/2009
O R D E R
P.R.RAMAN & P.BHAVADASAN, JJ.
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A.F.A.No.48 of 1994
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Dated this the 18th August, 2009
J U D G M E N T
Raman, J.
Plaintiff is the appellant. This appeal arises out of
the judgment of the learned Single Judge in appeal suit,
A.S.No.284 of 1990. The suit is one for partition instituted by the
plaintiff. There were two items of property, plaint ‘A’ schedule
and plaint ‘B’ schedule. The suit is decreed as against plaint ‘B’
schedule property, but dismissed as against plaint ‘A’ schedule
property, upholding the contention of the defendant that plaint ‘A’
schedule property belongs to him exclusively. Both the plaintiff
and the defendant preferred appeals. Plaintiff preferred the
appeal as against the dismissal of his claim for partition regarding
the plaint ‘A’ schedule property, and defendant filed the suit as
against the decree for partition of plaint ‘B’ schedule property.
The learned Single Judge confirmed the judgment of the court
below, thus dismissed the appeal filed by the defendant as also
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2
by the plaintiff. Aggrieved by the judgment, plaintiff has
preferred this appeal.
2. The short point that arise for consideration is as
to whether the finding of the trial court as confirmed by the
appellate court that plaint ‘A’ schedule property exclusively
belong to the defendant is in any way legal or liable to be
interfered with in an intra-court appeal filed under Section 5 of
the High Court Act.
3. Plaint ‘A’ schedule property, according to the
appellant-plaintiff was acquired by the income from the business
and a building had also been constructed therein with such
income. Plaint ‘A’ schedule property was acquired in 1972,
Ext.B1 is the certificate of purchase and that was issued in the
name of the defendant. Thereafter, the defendant also obtained
purchase certificate from the Land Tribunal as per the provisions
of the Kerala Land Reforms Act on 3.11.1976 and Ext.B2 is the
said purchase certificate issued in the name of the defendant.
Thus, the defendant was able to establish his case that the
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property was acquired by him as per Ext.B1 and subsequently
obtained Ext.B2 purchase certificate also, thus sustained the his
contention that the property exclusively belong to him.
4. On the other hand, the plaintiff would contend
that plaint ‘A’ schedule property was acquired with the income
derived from the business and the building was constructed
with such income. Absolutely no evidence was adduced in this
regard. In such circumstances, both the trial court as well as the
appellate court found that the plaintiff failed to establish his case
that the income from the business has been utilised for the
purpose of acquiring plaint ‘A’ schedule property. Though this
property was acquired in 1972 and a match factory was started in
1981, except the ipsi dixit of the plaintiff, there is no other
evidence adduced to show that the income generated from the
property has been utilised for the construction of the building.
In the absence of any such evidence to substantiate the said
contention, the learned Single Judge confirmed the finding of the
trial court and dismissed the appeal.
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We have carefully gone through the judgment
under appeal and perused the records. Evidence has been
discussed in detail and the appellant was not able to establish
that the construction of the building in plaint ‘A’ schedule
property was using the funds from the business. So also, there is
no evidence to show that plaint ‘A’ schedule property was
purchased from out of the common funds. In such
circumstances, it is a pure question of fact, as rightly held by the
learned Single Judge, and no interference is called for. There is
no merit in this appeal, and accordingly, this appeal is dismissed.
P.R.RAMAN, JUDGE
P.BHAVADASAN , JUDGE.
nj.
P.R.RAMAN & P.BHAVADASAN, JJ.
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A.F.A.No.48 of 1994
J U D G M E N T
Dated: 18th August, 2009.
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