Simon vs Sunny
2021 Latest Caselaw 8723 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.81 OF 2021

 AS 160/2017 OF III ADDITIONAL DISTRICT COURT, THRISSUR

    OS 1939/2012 OF I ADDITIONAL SUB COURT, THRISSUR


APPELLANT/APPELLANT/DEFENDANT:

           SIMON, AGED 56 YEARS
           S/O. ALAPPADAN VEETIL OUSEPH, NEAR VADAKKE
           CHAPPAL, AYYANTHOLE VILLAGE, DESOM, THRISSUR
           TALUK, PIN-680003.

           BY ADV. SRI.V.C.MADHAVANKUTTY

RESPONDENT/RESPONDENT/PLAINTIFF:

           SUNNY, AGED 61 YEARS
           S/O. ALAPPADAN VEETIL OUSEPH, NEAR VADAKKE
           CHAPPAL, AYYANTHOLE VILLAGE, DESOM, THRISSUR
           TALUK, PIN-680003.

           R1 BY ADV. SRI.V.BINOY RAM

     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 08-03-2021, THE COURT ON 16-03-2021 DELIVERED THE
FOLLOWING:
 R.S.A.No.81 of 2021


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                             JUDGMENT

This appeal is directed against the judgment and

decree dated 09.11.2020 in A.S.No.160/2017 on the file

of the third Additional District Court, Thrissur (hereinafter

referred to as 'the first appellate court') challenging the

judgment and decree dated 21.3.2017 in

O.S.No.1939/2012 on the file of the first Additional Sub

Court, Thrissur (hereinafter referred to as 'the trial court').

The parties are hereinafter referred to as the plaintiff and

defendant according to their status in the trial court

unless otherwise stated.

2. The appellant is the defendant and the

respondent is the plaintiff in a suit for partition before the

trial court. The plaintiff and defendant are brothers. The

case of the plaintiff is that the plaint schedule properties

are obtained by the plaintiff and defendant as per

settlement deed No.2407/1991 of the Sub Registrar's R.S.A.No.81 of 2021

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Office, Ayyanthole. The said property is sought to be

partitioned equally.

3. The defendant filed written statement

contending that the plaintiff promised to relinquish his half

share of the property in favour of the defendant.

Accordingly, the defendant and his sisters jointly collected

Rs.8,00,000/- and entrusted the same to the plaintiff to

tide over financial difficulties faced by him. It is the case

of the defendant that the plaintiff thereupon relinquished

his half share over the plaint schedule properties in favour

of the defendant by way of an oral sale.

4. The learned trial Judge after analysing the

evidence on record passed a preliminary decree for

partition declaring that the plaintiff is entitled to get half

share of the plaint schedule property. Having taken into

consideration of the fact that there is a building in the

plaint schedule property, the trial court held that the R.S.A.No.81 of 2021

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plaintiff is entitled to get half share of the profits from the

plaint schedule property and the quantum thereof is left

open to be decided during final decree stage.

5. The plea of oral sale set up by the defendant is

negatived by the trial court and the first appellate court

concurrently. The transfer of share set up by the

defendant by way of sale in violation of Section 54 of the

Transfer of Property Act and Section 17 of the Registration

Act is disbelieved by the two courts below finding that the

case of oral assignment is inherently unbelievable and

improbable.

6. The learned counsel for the appellant contended

that the two courts below went wrong in passing a

preliminary decree in respect of the schedule property in a

partition suit without considering the availability of profit

derived from the schedule property. Going by the trial

court judgment it is clear that the quantum of profit is left R.S.A.No.81 of 2021

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open to be decided in the final decree proceedings. It is

further stated that if the division of property cannot be

made conveniently, it is open to the parties to apply for

auction in accordance with law. The preliminary decree

passed by the trial court in this respect is perfectly in

order.

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 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 PW1,

Exts.A1 to A7, DWs.1 and 2, Exts.B1 to B7 series and

Exts.C1 and C1(a) to grant a preliminary decree for partition. R.S.A.No.81 of 2021

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8. On behalf of the appellant, it has strenuously

been contended with considerable force that the plaintiff

has no right to get the property partitioned. However,

there is no contra evidence adduced by the defendant to

prove a probable case that the plaintiff has conveyed his

share over property by way of an oral sale. 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 oral

sale is not proved and the plaint schedule property is

partible is not open to challenge in second appeal, even if

the appreciation of evidence is wrong. There is no

debatable issue before this Court which is not covered by R.S.A.No.81 of 2021

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settled principles of law or precedents.

9. The trial court and the first appellate court

examined the evidence on record at length and arrived at

a reasoned conclusion that the plaintiff is entitled to get

half share over the plaint schedule property with profits

and the quantum of which will be ascertained during the

final decree proceedings. 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