IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1008 of 2008()
1. VELLA , AGED 69 YEARS, S/O. CHAMI,
... Petitioner
2. PARU, AGED 64 YEARS, W/O. VELLA,
3. CHAMUKUTTAN, AGED 39 YEARS,
4. SUNDARAN, AGED 28 YEARS,
Vs
1. PUSHPA, AGED 25 YEARS, W/O. LATE
... Respondent
2. RESHMA, AGED 5 YEARS, (MINOR),
For Petitioner :SRI.K.ANAND
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :01/12/2008
O R D E R
V. RAMKUMAR, J.
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R.S.A.No.1008 of 2008
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Dated this the 1st day of December, 2008
JUDGMENT
Defendants 1 to 4 in O.S.No.302 of 2003 on the file of the
Munsiff’s Court, Alathur are the appellants in this second appeal.
The said suit instituted by respondents 1 and 2 herein was one
for partition and separate possession of the plaintiff’s share over
three items of immovable property described as A,B and C
schedules. The present dispute pertains only to the plaint A
schedule Property having an extent of 6 cents comprised in
Survey No.189/5 of Kottayi village.
2. It may be useful to have an idea regarding the
genealogy of the parties. The 1st defendant Vella examined as
DW1 is the son of one Chamy who died in the year 1975. The 2nd
defendant is the wife of the 1st defendant. One Rajan who died
on 8.4.2002 and defendants 3 and 4 are the sons of the 1st
defendant. The 1st plaintiff examined as PW1 is the widow of the
said Rajan and the 2nd plaintiff is their son. While according to
the plaintiffs the plaint A Schedule property was an ancestral
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property of the 1st defendant, the appellants contended that the
plaint A schedule property was the self acquisition of Chamy as
per a registered document of the year 1971 and that on the
death of Chamy in the year 1975 the property had devolved upon
the 1st defendant and his brothers, that they divided the
properties as per a partition deed and subsequently the 1st
defendant’s brothers executed Ext.B1 release deed dated 21.5.95
releasing their rights over the property in favour of the 1st
defendant.
3. The learned Munsiff after trial as per judgment dated
31.7.04 passed a preliminary decree for partition declaring the
plaintiff’s 1/4th share over the plaint schedule properties. It was
held that apart from the fact that the property dealt with under
Ext.B1 was 7 cents comprised in Re-survey No.183/4 whereas
plaint A Schedule property is 6 cents comprised in Re-survey
No.184/5, the lower court also held that the non-production of
the document of the year 1971 referred to in Ext.B1 release deed
was fatal to the defence contention that the suit property was a
self acquisition of the said Chamy. On appeal preferred by the
defendants, the lower appellate court concurred with the
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findings of the trial court. Evenafter the observation by the trial
court that the defendants did not produce the document of the
year 1971 to substantiate their case that the property was the
self acquisition by Chamy, they did not produce the said
document even before the lower court. Hence the conclusion
reached by the courts below cannot be faulted with.
I do not find any good ground to interfere with the orders
passed by the courts below. No question of law, much less any
substantial question of law arises for consideration in this second
appeal. The questions of law formulated in the memorandum of
appeal also do not arise for consideration in this second appeal
which is accordingly dismissed in limine.
Dated this the 1st day of December, 2008.
V. RAMKUMAR, JUDGE
sj