High Court Kerala High Court

Kuriakose vs Poulose on 18 August, 2009

Kerala High Court
Kuriakose vs Poulose on 18 August, 2009
       

  

  

 
 
  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

AFA.No. 48 of 1994

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

AFA.No. 48 of 1994

3

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.

AFA.No. 48 of 1994

4

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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