Sivan vs Gowri on 14 December, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RP.No. 893 of 2006()


1. SIVAN, S/O.SANKARAN, OLARIKKAL HOUSE,
                      ...  Petitioner

                        Vs



1. GOWRI, W/O.PUSHPADHARAN,
                       ...       Respondent

2. NALINI, W/O.PEETHAMBARAN,

3. PAPPY, W/O.SANKARAN, OLIARACKAL HOUSE,

4. SIVARAMAN, S/O.SANKARAN,

5. GOPI, S/O.SANKARAN,

6. RAJU, S/O.SANKARAN, OLIARACKAL HOUSE,

7. PADMAKSHI, W/O.GOPALAN,

                For Petitioner  :SRI.T.KRISHNAN UNNI (SR.)

                For Respondent  :SRI.K.S.MADHUSOODANAN

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :14/12/2009

 O R D E R
                     M.N. KRISHNAN, J.
                  ...........................................
                      R.P.NO.893 OF 2006
                                     in
                       S.A.No.455 OF 2002
                 .............................................
          Dated this the 14th day of December, 2009

                               O R D E R

This review petition is preferred against the judgment

of this Court in S.A.No.455/2002. The suit is one for

partition which takes in four items of property. Item 1

belonged to Sankaran as a registered land and items 2 to 4

are unregistered lands. Sankaran died and a suit for partition

was filed. Defendants 1 and 3 to 6 contended that item 1 is

partible, but with respect to items 2 to 4, according to

them, their father during his life time had handed over the

same to defendants 3 and 4 and they are not partible. The

first court found that item 1 is partible but repelled the

contention with respect to other items and the

Subordinate Judge found that all items are partible and it

is against that decision, the second appeal was preferred.

2. I have considered that point in the light of Section

100 of the Civil Procedure Code wherein it has to be borne

in mind that unless there is a substantial question of law, the

court should not entertain the second appeal. I find that

: 2 :
R.P.NO.893 OF 2006
in
S.A.No.455 OF 2002

since the contesting defendants themselves have raised a

contention that the property belongs to the father and that

the father had given to them, there was a burden cast upon

them to establish that fact. There is no evidence tendered in

that regard and therefore, when the origin of the property

is through the father naturally it becomes partible unless

the other contentions are established by tangible evidence.

The learned Subordinate Judge rightly found that it is

lacking and ordered partition. I do not find any

misappreciation of evidence or misapplication of mind.

3. The Hon’ble Supreme court in the decision reported

in Gurdev Kaur v. Kaki (AIR 2006 SC 1975) has cautioned

that the second appellate court shall not act as a third

trial court. It was also held that if there is concurrent

findings of fact even erroneous, the second appellate court

shall not ordinarily interfere with. Applying the dictum to

the facts of this case, the Subordinate Judge has analysed

the matter correctly and arrived at a decision and therefore,

I find that there was no substantial question of law involved

: 3 :
R.P.NO.893 OF 2006
in
S.A.No.455 OF 2002

and hence dismissed the appeal.

I do not find any ground to deviate from the findings

in this review petition and therefore the review petition

lacks merit and it is dismissed.

M.N. KRISHNAN, JUDGE

cl

: 4 :
R.P.NO.893 OF 2006
in
S.A.No.455 OF 2002