Kerala High Court
Ravikumar Rai vs Jayanthi Rai on 20 May, 2025
2025:KER:34706
RSA NO. 228 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
RSA NO. 228 OF 2025
AGAINST THE JUDGMENT DATED 21.01.2025 IN AS NO.19 OF
2021 OF SUB COURT, KASARAGOD ARISING OUT OF THE JUDGMENT
DATED 31.05.2021 IN OS NO.278 OF 2017 OF PRINCIPAL MUNSIFF'S
COURT, KASARAGOD
APPELLANTS/APPELLANTS IN AS 19/21/PLAINTIFFS IN OS 278/17:
1 RAVIKUMAR RAI
AGED 62 YEARS
S/O. RAJEEVI, RESIDING AT PERADALA, PERDALA
VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT,
P.O PERDALA., PIN - 671551
2 RADHIKA P SHETTY
AGED 54 YEARS
D/O. RAJEEVI, RESIDING AT PERADALA, PERDALA
VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT,
P.O PERDALA., PIN - 671551
3 RAKHESH
AGED 49 YEARS
S/O. RAJEEVI, RESIDING AT PERADALA, PERDALA
VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT,
P.O PERDALA., PIN - 671551
4 SAROJINI
AGED 73 YEARS
D/O. DEYYAKKU, RESIDING AT PERADALA, PERDALA
VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT,
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P.O PERDALA, PIN - 671551.
5 SEEMAKUMARI
AGED 44 YEARS
D/O. PUSHPALATHA, RESIDING AT PERADALA, PERDALA
VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT,
P.O PERDALA., PIN - 671551
6 SHRAVANAKUMAR
AGED 40 YEARS
S/O. PUSHPALATHA, RESIDING AT PERADALA, PERDALA
VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT,
P.O PERDALA., PIN - 671551
7 JAGANNATHA RAI
AGED 70 YEARS
S/O. DEYYAKKU, RESIDING AT PERADALA, PERDALA
VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT,
P.O PERDALA, PIN - 671551
8 SATEESH RAI
AGED 66 YEARS
S/O. DEYYAKKU, RESIDING AT PERADALA, PERDALA
VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT,
P.O PERDALA, PIN - 671551
BY ADVS.
PUSHPARAJAN KODOTH
K.JAYESH MOHANKUMAR
VANDANA MENON
VIMAL VIJAY
RESPONDENTS/RESPONDENTS IN AS 19/21/RESPONDENTS IN OS
278/17:
1 JAYANTHI RAI, AGED 72 YEARS, D/O. LATE DOOMANNA
RAI, C/O. SHIVAPRASAD SHETTY, DEPARTMENT OF YOGA,
S.D.M. COLLEGE OF NATUROPATHY AND YOGA SCIENCE,
P.O. UJIRE OF DAKSHINA KANNADA DISTRICT, PIN -
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3
574240
2 KRISHNA PRASAD RAI
AGED 70 YEARS, S/O. LATE DOOMANNA RAI, R/AT
PALLATHADKA OF KASARAGOD TALUK AND DISTRICT, P.O.
PERDALA, PIN - 671551.
3 SHIVAPRASAD RAI
AGED 66 YEARS, S/O. LATE DOOMANNA RAI, R/AT
PALLATHADKA OF KASARAGOD TALUK AND DISTRICT, P.O.
PERDALA, PIN - 671551
4 PRAMOD KUMAR RAI
AGED 68 YEARS, S/O. LATE DOOMANNA RAI, R/AT
PALLATHADKA OF KASARAGOD TALUK AND DISTRICT, P.O.
PERDALA, PIN - 671551
5 BALAPRADEEP
AGED 62 YEARS, S/O. LATE DOOMANNA RAI, R/AT
PALLATHADKA OF KASARAGOD TALUK AND DISTRICT, P.O.
PERDALA, PIN - 671 551.
6 PRASHANTHKUMAR RAI
AGED 59 YEARS, S/O. LATE DOOMANNA RAI, R/AT
PALLATHADKA OF KASARAGOD TALUK AND DISTRICT, P.O.
PERDALA, PIN - 671551.
7 CHANDRAHASA RAI
AGED 80 YEARS, S/O. DEYYAKKU AND NARAYANA RAI,
R/AT PERADALA GUTHU, KASARAGOD TALUK AND
DISTRICT, P.O. PERADALA - 671 551.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 20.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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EASWARAN S., J.
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RSA No.228 of 2025
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Dated this the 20th day of May, 2025
JUDGMENT
The appeal is preferred by the plaintiffs in O.S. No.278/2017 on
the files of the Munsiff's Court, Kasaragod. According to the plaintiffs,
the plaint A schedule property originally belonged to Deyyakku.
Thereafter, her right devolved upon the plaintiffs and the 7th
defendant. On 25.8.2017, the plaintiffs came to know that Doomanna
Rai, father of defendants 1 to 6, fraudulently executed settlement deed
No.260/2001 dated 24.1.2001 of SRO, Badiadka. It is the specific
case of the plaintiffs that Doomanna Rai has no right over the plaint
A schedule property and, therefore, the settlement deed is not
genuine and is liable to be set aside. The plaintiffs sent a registered
notice on 22.8.2017 calling the defendants to effect partition of the A
schedule property, which was refused by the defendants and hence,
the suit was filed. The defendants appeared and contested the suit,
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pointing out that their predecessor in interest, namely Doomanna Rai,
was in absolute ownership and possession of the suit property. Pattas
were issued in his name and later, a settlement deed was executed in
favour of the defendants 1 to 6. The plaintiffs themselves knew about
the said settlement deed and no steps were taken by them to question
the same. It was further contended that before the repeal of the
Aliyasanthana Act, Doomanna Rai filed O.S No.34/1975, a partition
suit, on the files of the Court of Subordinate Judge, Kasaragod and a
final decree of partition was passed on 19.6.2009 and an advocate
commissioner was appointed to the suit, who visited the property for
demarcation of the property, and that the plaintiffs knew about the
filing of the suit and passing of the final decree.
2. On behalf of the plaintiffs, Exts.A1 to A15 documents were
produced and marked, and on behalf of the defendants, Exts.B1 to B6
were produced and marked. 1st plaintiff was examined as PW1 and
the 2nd defendant was examined as DW1.
3. The trial court, on appreciation of evidence, framed the
following issues for consideration:
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"1) Whether the plaintiffs are entitled to get a decree to set
aside settlement deed No.260/2001 of SRO, Badiadka?
2) Whether the plaint A schedule property is partible?
3) If so, what are the respective shares entitled by the parties?
4) What are the equities and reservations if any entitled by
the parties?
5) Whether the suit is barred by law of limitation and under
the principle of estoppel?
6) Whether the court fee paid in the suit is correct?
7) Reliefs and costs?"
4. After appreciation of the evidence, the trial court found
that Exts.B1 to B4 documents established the title of defendants 1 to
6 over the plaint schedule property. The derivation of the title over
the plaint schedule property by the plaintiffs was solely based on
Exts.A1 and A11 documents, which did not relate to Deyyakku, the
predecessor in interest of the plaintiffs, and thus, the trial court found
that the plaintiffs are not entitled to get a decree to set aside the
settlement deed. On further appreciation, the trial court proceeded
to hold that the plaintiffs having not established their right, title, or
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interest over the plaint schedule property, a suit for partition is not
maintainable. Accordingly, the suit was dismissed. Though the
plaintiffs carried forward the matter before the Sub Court, Kasaragod,
the appeal was also dismissed.
5. Heard Sri.Pushparajan Kodoth, the learned counsel
appearing for the appellants/plaintiffs.
6. The learned counsel appearing for the appellants would
submit that the finding of the trial court as well as the first appellate
court, by appreciating the evidence produced by the plaintiffs, is
perverse and, therefore, it requires reconsideration by this Court. It
is the specific case of the learned counsel for the appellants that the
plaintiffs and the defendants are descendants of a common ancestor,
namely Doomakke, who is the mother of Deyyakku and Doomanna
Rai, and that with reference to the categoric admission of DW1 that
the parties were governed by the Aliyasanthana Act and that in the
light of the fact that the said Act has been repelled, the
appellants/plaintiffs and the defendants would take in the rights over
the property as tenants in common and therefore, are entitled for
partition of the plaint schedule property.
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7. Having considered the submissions raised across the bar
by the learned counsel appearing for the appellants/plaintiffs, this
Court is not persuaded to admit the appeal, especially since no
substantial question of law arises for consideration. The question
before this Court is as to whether the plaintiffs can claim any right,
title and interest over the plaint schedule property. Both courts have
concurrently found that the document by which the plaintiffs traced
their right, title and interest over the plaint schedule property does
not relate to the plaint schedule property. On the contrary,
defendants 1 to 6 were successful in establishing the derivation of the
title of Doomanna Rai, their predecessor-in-interest, which is
traceable to Patta Nos.100 & 67. Thereafter, the property being
devolved upon them by virtue of the settlement deed, the defendants
were successful in establishing the derivation of title to the plaint
schedule property through a valid document.
It is trite law that this Court can interfere with the finding of
facts by the trial court only if the same is vitiated by perverse
appreciation. On a close perusal of the findings of the trial court as
well as by the first appellate court, this Court is not impressed by the
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argument of the learned counsel appearing for the appellants that the
appreciation of evidence by the trial court as well as by the first
appellate court is perverse. Inasmuch as the appellants/plaintiffs
having failed to establish their right, title and interest over the plaint
schedule property, it cannot be said under any circumstances that the
finding of fact rendered by the trial court as confirmed by the first
appellate court is perverse. In such circumstances, no substantial
question of law arises for consideration in the present second appeal.
Accordingly, the second appeal lacks merits and is dismissed. No
order as to costs.
Sd/-
EASWARAN S.
JUDGE
jg
