IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 331 of 2009()
1. MOHANDAS, S/O.VELAYUDHA PANICKER,
... Petitioner
Vs
1. VINESHKUMAR, AGED 54 YEARS,S/O.VASU,
... Respondent
2. PRADEESH, AGED 46 YEARS,S/O. -DO-
3. RAJASEKHARAN,AGED 62 YEARS,
For Petitioner :SMT.M.J.RAJASREE
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :02/04/2009
O R D E R
K.P. Balachandran, J.
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R.S.A.No.331 of 2009
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JUDGMENT
The plaintiff in O.S.No.284/97 on the file of
the Munsiff’s Court, Chittur is the appellant in
this Regular Second Appeal, he having lost his case
concurrently in both the courts below. The suit was
instituted by him for partition of the scheduled
properties, inter alia, on the allegations that the
scheduled properties and other properties belonged
to Velayudha Panicker, the father of the appellant/
plaintiff, the third defendant and Vasu, the father
of defendants 1 and 2; that on the death of
Velayudha Panicker, the properties belonging to
him, excluding the scheduled properties, were
partitioned as per Deed No.126/1970; that the
scheduled properties are co-ownership properties
and the parties are in joint possession thereof;
that defendants 1 and 2 created a partition deed in
respect of the plaint schedule properties stating
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that the same belong to them exclusively; that
later on they have admitted that the plaint
schedule items are co-ownership properties and that
despite demands made by him, they are not amenable
to effect a partition and to allot separate
possession of his share. Hence the suit.
2. Respondents 1 and 2/defendants 1 and 2
resisted the suit contending that the appellant/
plaintiff has no title to claim partition of the
scheduled properties; that it is incorrect to say
that the scheduled properties belonged to Velayudha
Panicker; that the properties belonged exclusively
to the father of defendants 1 and 2, who is the
brother of the appellant/plaintiff; that it is also
incorrect to say that the scheduled properties were
omitted to be included in the partition deed; that
the scheduled properties are not in common
ownership and joint possession of themselves and
the appellant/plaintiff; that it is incorrect to
say that defendants 1 and 2 admitted that the
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scheduled properties are co-ownership properties;
that the appellant/plaintiff, who is on inimical
terms with defendants 1 and 2, has filed the suit
without any bona fides and that the suit has only
to be dismissed. The third respondent/third
defendant did not file any written statement.
3. On the above pleadings, the trial court
raised necessary issues for trial and considering
the evidence adduced at trial, which consisted of
oral evidence of PWs 1 and 2 and DW1 and
documentary evidence Exhibits A1 series and A2 and
Exhibit B1 series to B5, dismissed the suit holding
that the appellant/plaintiff is not entitled to
claim partition. The appeal filed as A.S.No.148/05
before the first appellate court was also dismissed
concurring with the findings of the trial court.
Hence this Regular Second Appeal.
4. It is vehemently contended before me by the
learned counsel for the appellant that Exhibit A1
is the certified copy of deposition given by the
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first defendant as DW1 in O.S.No.239/87 before the
Munsiff’s Court, Chittur, wherein, he admitted that
the scheduled properties are properties belonging
in common and that therefore, the courts below are
not justified in having dismissed the suit refusing
the relief for partition.
5. It is worthy to note that the appellant/
plaintiff is relying only on the admission made by
the first defendant during cross-examination in
O.S.No.239/87, when he was examined as DW1. He was
examined as PW2 in the present suit and was
attempted to be contradicted with his prior
statements contained in Exhibit A1. He admitted
that he had made those statements before court, but
explained that the admissions so made in 1989 were
in relation to the properties owned in common by
himself and the second defendant, which was
subsequently partitioned between them under Exhibit
A2 partition. The learned counsel made strenuous
efforts to contend that the admission was not in
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relation to the properties owned in common by
defendants 1 and 2, which was subsequently
partitioned between them under Exhibit A2, but in
relation to the scheduled properties, which
according to the appellant, belonged in common to
the appellant/plaintiff, the third defendant and
Vasu, the late father of defendants 1 and 2. A
detailed probe into the correctness of the
explanation does not deserve to be made by this
Court in second appeal in the light of the
admissions made by PW1 himself in his evidence
tendered before the trial court, which is extracted
by the trial court in paragraph 10 of the judgment.
The deposition so extracted are to the effect that
the scheduled property was purchased by his father
Velayudha Panicker in 1945; that he is in
possession of a copy of the said document and that
there is no reason for his not producing that
document before court. Thus, when the best
evidence to establish title over the scheduled
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property, over which partition is claimed, is in
the possession of the appellant/plaintiff, but
without any sufficient cause to withhold that
document, he does not produce it before court, he
cannot bank upon the alleged admissions made by the
first defendant in Exhibit A1, which were explained
away by the first defendant when examined as PW2
before the trial court after remand of the case
from the first appellate court in A.S.No.35/00.
Obviously, for reason of non production of the
document in the possession of the appellant/
plaintiff showing title over the scheduled
properties as having belonged to Velayudha
Panicker, as alleged by the appellant/plaintiff,
adverse inference has to be drawn against him that
there is no such document to establish title over
the scheduled property. There is absolutely no
merit in this Regular Second Appeal and there is no
question of law and much less, any substantial
question of law arising for consideration by this
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Court in this Regular Second Appeal.
In the result, I dismiss this Regular Second
Appeal in limine refusing admission.
2nd April, 2009 (K.P.Balachandran, Judge)
tkv