Sadasivan vs Sumathi
2021 Latest Caselaw 8641 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

               THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

     TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

                         RSA.No.252 OF 2021

                AS 26/2016 OF SUB COURT, KATTAPPANA

                OS 85/2013 OF MUNSIFF COURT, IDUKKI


APPELLANT/APPELLANT/DEFENDANT NO.1:

             SADASIVAN, AGED 58 YEARS, S/O. (LATE) NARAYANAN,
             KIZHAKKEKKARA HOUSE, THADIYAMPADU P.O., VAZHATHOPU,
             IDUKKI-685 602.

             BY ADV. SRI.JOMY K. JOSE

RESPONDENTS/RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT:

      1      SUMATHI, AGED 59 YEARS, W/O. CHENTHAMARAKSHAN,
             PUTHENURACKAL HOUSE, MANIYARANKUDY KARA, IDUKKI
             VILLAGE, THODUPUZHA TALUK, IDUKKI-686 584.

      2      VIJAYAMMA, AGED 55 YEARS, W/O. RADHAKRISHNAN, VAKAKKAL
             HOUSE, CHEPUKULAMKARA, UDUMBANNOOR VILLAGE, THODUPUZHA
             TALUK, IDUKKI-685 595.

      3      MURALIDHARAN, AGED 65 YEARS, S/O. NARAYANAN,
             KIZHAKKEKARAYIL HOUSE, CHEPPUKULAMKARA, UDUMBANNOOR
             VILLAGE, THODUPUZHA TALUK, IDUKKI-685 595.

      4      KRISHNANKUTTY, AGED 69 YEARS
             MANKUTHEL HOUSE, VELLIYAMATTOM KARA, UDUMBANNOOR
             VILLAGE, IDUKKI-685 595.

      5      RAJESH, AGED 39 YEARS, S/O. KRISHNANKUTTY, MANKUTHEL
             HOUSE, VELLIYAMATTOM KARA, UDUMBANNOOR VILLAGE,
             IDUKKI-685 595.

      6      VIJI M.K., AGED 44 YEARS, PULIVELIL HOUSE,
             VELLIYAMATTOM KARA, UDUMBANNOOR VILLAGE, IDUKKI-685
             595.

      7      SIJI M.K., AGED 42 YEARS, W/O. SHAJI, KALARIPARAMBIL
             HOUSE, MANAKKATTU KARA, MANAKKATTU VILLAGE, IDUKKI-685
             584.


THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2021,
THE COURT ON 16-03-2021 DELIVERED THE FOLLOWING:
 R.S.A.No.252 of 2021


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                        JUDGMENT

This appeal is directed against the judgment and

decree dated 03.06.2020 in A.S.No.26/2016 on the file of

the Sub Court, Kattappana (hereinafter referred to as 'the

first appellate court') challenging the judgment and decree

dated 23.3.2016 in O.S.No.85/2013 on the file of the

Munsiff's Court, Idukki (hereinafter referred to as 'the trial

court'). The appellant is the appellant in A.S.No.26/2016

on the file of the first appellate court and the 1st defendant

in O.S.No.85/2013 on the file of the trial court. The

parties are hereinafter referred to as the plaintiffs and

defendants according to their status in the trial court

unless otherwise stated.

2. The suit was filed for partition of the plaint

schedule property. It is admitted that the father and

mother of the plaintiffs and defendants were the owners in R.S.A.No.252 of 2021

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possession of 50 cents of property. They had executed a

Will bequeathing 10 cents of property each to the

plaintiffs. The 1st defendant contended that the entire 50

cents of property is not available for partition by virtue of

Ext.B1 compromise decree. According to the 1 st

defendant, the mother had given 4 cents of property

appurtenant to the house to the 1 st defendant. Hence, it is

contended that the property available for partition is the

property excluding the house and the property therein.

3. The trial court passed a preliminary decree on

the following terms:-

"In the result,

1. That the plaint schedule property is liable to be partitioned into 5 equal shares by metes and bounds.

2. Plaintiffs are entitled to one share each and separate possession in the plaint schedule property.

R.S.A.No.252 of 2021

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3. Defendants are entitled to one share each in the plaint schedule property.

4. Costs shall come out of estate.

5. Suit is adjoured sine die."

4. The matter was carried in appeal. The first

appellate court allowed the appeal in part and a

preliminary decree was passed on the following terms:-

"In the result, the appeal is allowed in part and the judgment and preliminary decree is modified as follows:-

1) The plaint schedule property is to be partitioned by metes and bounds into 5 equal shares.

2) Plaintiffs/respondent Nos.1 to 3 are entitled to get one share each.

3) The defendants/appellant and respondent No.4 are entitled to get one share each.

R.S.A.No.252 of 2021

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4) The house bearing No.VP VIII/195A situated in plaint schedule property shall be reserved to D1/appellant without considering its value. His share in the property is to be carved out in such a way that it includes the house.

5) Costs of the suit shall come out of the estate."

5. The main contention of the 1st defendant is that

he is entitled to get 4 cents of the plaint schedule

property and the house situated therein by virtue of

Ext.B1 compromise decree in O.S.No.60/2008 on the file

of the Munsiff's Court, Idukki by his mother against him.

The said suit was compromised wherein the 1st defendant

admitted absolute ownership and possession of 50 cents

of property and the house building therein bearing No.VP

VIII/195A thereon. It is pertinent to note that the 1 st

defendant did not raise any dispute regarding Ext.A2 sale R.S.A.No.252 of 2021

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deed by which his mother obtained the property. As per

Ext.B1, the 1st defendant obtained right in the house after

the death of his mother. As per Clause 2 in Ext.B1 the 1 st

defendant obtained absolute right in the house mentioned

above. Ext.B1 further provides that other legal heirs of his

mother are not entitled to raise any claim regarding the

house. As per Clause 5, if his mother wanted to sell her

property for urgent needs, she was duty bound to intimate

the 1st defendant and in lieu thereof she had to assign 4

cents of property and the house situated therein in favour

of the 1st defendant in exchange of 4 cents of land from

the neighbouring property of the 1st defendant.

Interpreting the provisions contained under Ext.B1 the

first appellate court rightly held that the 1st defendant is

entitled to get absolute right over the house situated in

the plaint schedule property. Going by the nature of the

agreement, it is very clear that the grant of 4 cents of R.S.A.No.252 of 2021

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property would arise only if his mother wanted to sell her

property. The 1st defendant had no such case. Further, the

first appellate court has taken into consideration the

additional written statement filed by the 1st defendant on

16.1.2016 stating claim over the house in the plaint

schedule property on the strength of the compromise

decree in O.S.No.60/2008. In view of the above

circumstances, the first appellate court specifically held

that the house bearing No.VP VIII/195A situated in the

plaint schedule property shall be reserved to the 1 st

defendant without considering its value. In all other

respect, there is no contest at all.

6. The learned counsel for the appellant contended

that the recitals contained in Ext.B1 document would inter

alia show that exclusive right of the appellant/1 st

defendant over the house and 4 cents of property was

given to the appellant. This contention is totally erroneous R.S.A.No.252 of 2021

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in view of the recital contained in Ext.B1. The reservation

is only for the house and not for the property. Hence, both

the trial court and the first appellate court rightly held that

the plaint schedule property is partible and the plaintiffs

are entitled to get 1/5th share over the plaint schedule

property.

7. A second appeal is not a matter of right. The

right of appeal is conferred by statute. A second appeal

only lies on a substantial question of law. If statute

confers a limited right of appeal, the Court cannot expand

the scope of the appeal. It was not open to the 1 st

defendant to re-agitate facts or to call upon the High

Court to re-analyse or re-appreciate evidence in a second

appeal. In the case on hand, both the trial court and the

first appellate court relied on the oral evidence of PWs.1

and 2, Exts.A1 to A4(a), Ext.B1 and DW1 to grant a

preliminary decree for partition.

R.S.A.No.252 of 2021

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8. On behalf of the appellant, it has strenuously

been contended with considerable force that the plaintiffs

have no right to get the property partitioned. However,

there is no contra evidence adduced by the 1st defendant

to prove a probable case that the property where the

house is situated is excluded from the partition by virtue

of Ext.B1 compromise decree. To be "substantial", a

question of law must be debatable, not previously settled

by the law of the land or any binding precedent, and must

have a material bearing on the decision of the case and/or

the rights of the parties before it, if answered either way.

As stated earlier, in a second appeal, the jurisdiction of

the High Court being confined to substantial question of

law, a finding of fact that the plaint schedule property is

partible subject to reservation of the house therein is not

open to challenge in second appeal, even if the

appreciation of evidence is wrong. There is no debatable R.S.A.No.252 of 2021

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issue before this Court which is not covered by settled

principles of law or precedents.

9. The first appellate court examined the evidence

on record at length and arrived at a reasoned conclusion

that the plaint schedule property is liable to be partitioned

by metes and bounds into 5 equal shares subject to the

reservation of the house in the plaint schedule property to

the 1st defendant. The concurrent findings of facts of the

trial court and the first appellate court do not warrant

interference in a second appeal.

For the reasons discussed above, the R.S.A. is

dismissed. There will be no order as to costs. Pending

applications, if any, stand disposed of.

Sd/-

N.ANIL KUMAR, JUDGE skj