High Court of KeralaSingle JudgeSecond Appeal dismissed; partition decree of th...

RSA No.1060 of 2004 (Regular Second Appeal) – Thanka and others v. Kannā and Vimala and others

Case / Petition Number:RSA No.1060 of 2004

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Justice Sathish Ninan
Judgment Date
2020-02-27
Court Decision / Holding
In the result, the Second Appeal fails and is accordingly dismissed; the decree for partition passed by the lower appellate court stands, and the preliminary decree for partition is upheld.
Final Disposition
Second Appeal dismissed; partition decree of the lower appellate court stands.

Parties to the Case

Appellants / Petitioners

  • Thanka W/o Ponnan
  • Leela W/o Do. In Do.
  • Manikandan S/o Do. In Do. Do.

Respondents

  • Kanna (died) W/o Velan
  • Vimala W/o Appukuttan
  • Radhakrishnan (minor, now major) S/o Ponnan
  • Rajesh S/o Do. in Do.
  • Thanka D/o Kunjakan
  • Rajan S/o Velayudhan
  • Pankajam D/o Do.
  • Karthyani D/o Do.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri.S.V.Balakrishna Iyer (Sr.)
  • • Sri.Harish R. Menon
  • • Sri.K.Jayakumar (Sr.)
  • • Sri.P.B.Krishnan
  • • Sri.M.K.Sreegesh

Counsels for Respondents

  • • Sri.S.Nithin Anchal
  • • Sri.Rajesh SivaramanKutty

Case Synopsis & Summary

This Regular Second Appeal challenges a partition suit (OS 304/1997) that was dismissed by the Munsiff and later partially revived by the first appellate court, which passed a preliminary decree for partition declaring 1/4 share in favour of each branch of Kunjakan’s descendants. The defendants (appellants in this RSA) contend that Ponnan was the lessee and that the title in the property did not vest in Kunjakan, thus disputing the partition rights. The trial court’s finding of lack of evidence to establish Kunjakan as lessee was upheld by the first appellate court’s reversal, which concluded that Kunjakan held the original interest and that his heirs were entitled to partition. The High Court, hearing this second appeal under Section 100 CPC, scrutinized the evidence, including DW1’s cross-examination and Ext.A4 (panchayat assessment in the name of Kunjakan’s wife), and held that the materials supported the lower appellate court’s conclusion that Kunjakan was the original interest holder and that the eldest son, Ponnan, managed the property after Kunjakan’s death. The High Court reiterated that, in second appeals, where two inferences are possible, the inference of the lower appellate court should prevail, and that it should not substitute its own view. Accordingly, the Second Appeal was dismissed, sustaining the partition decree.

Provisions of Law Cited

Code of Civil Procedure, Section 100

Legal Doctrines & Maxims

  • In a second appeal, where two inferences are possible, the inference of the lower appellate court is binding on the High Court.
  • It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last court of fact; the appellate court should give satisfactory reasons for its conclusions; where two inferences are possible, the appellate court's inference binds the High Court in second appeal.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that there is insufficient evidence to establish that the leasehold right vested with Kunjakan, the common ancestor. They challenge the lower appellate court’s inference that Kunjakan was the original holder and argue that the documents, including Ext. A4, and the conduct of DW1, do not conclusively prove a lease in favor of Kunjakan’s branch. They emphasize the trial court’s finding of lack of evidence and contend that, under Section 100 CPC, the High Court should not substitute its own view when the first appellate court has given a satisfactory, permissible basis for its conclusion. The argument centers on whether the property was held by Kunjakan as original owner and whether partition rights vest in his descendants; they urge the High Court to re-evaluate the evidence and restore the trial court’s position or remit for fresh consideration.

Contentions of Respondents

The respondents argue that the evidence, including DW1’s testimony and Ext.A4, establishes that Kunjakan was the original interest holder and that after his death his eldest son Ponnan managed the property, justifying a partition in favour of the branches. They rely on the lower appellate court’s view that Kunjakan’s possession and the conduct of the family support the claim of partition, and on the long-standing principle that the appellate court’s findings should be respected in second appeals when they are based on admissible evidence and satisfactory reasoning. They contend that the appellants’ challenge to the lower court’s inference is merely a permissible alternative view, which under settled law cannot overturn the lower appellate decision in a second appeal.”},

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Veerayee Ammal v. Seeni Ammal(2002) 1 SCC 134PositiveCited to support the proposition that, in second appeals, the appellate court’s inference should bind the High Court when two inferences are possible.
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors(1999) 3 SCC 722PositiveCited for the principle that the High Court should not substitute its own view but respect the lower appellate court’s conclusions when they are supported by evidence and law.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** ## **RSA.No.1060 OF 2004** **AGAINST THE JUDGMENT AND DECREE IN AS 313/2000 OF I ADDL. DISTRICT COURT, PALAKKAD ARISING OUT OF THE JUDGMENT AND DECREE IN OS 304/1997 OF MUNSIFF'S COURT, CHITTUR** **-----** ## **APPELLANTS IN RSA/RESPONDENTS 1 TO 3 IN THE LOWER APPELLATE COURT/DEFENDANTS 1 TO 3 IN THE SUIT:** - **1 THANKA, W/O.PONNAN, RESIDING AT THEMBARAMADAYIL, KUTTIPALLAM VILLAGE, CHITTUR TALUK.** - **2 LEELA DO. DO. IN DO. DO.** - **3 MANIKANDAN S/O. DO. IN DO. DO.** **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.HARISH R. MENON SRI.K.JAYAKUMAR (SR.) SRI.P.B.KRISHNAN SRI.M.K.SREEGESH** ## **RESPONDENTS 1 & 2 IN RSA/APPELLANTS IN THE LOWER APPELLATE COURT/PLAINTIFFS IN THE SUIT:** - **1 KANNA, (DIED) W/O.VELAN, RESIDING AT AYYANPALLAM, CHITTUR VILLAGE AND TALUK.** **(AS PER THE ORDER DATED 21.11.2014 IN MEMO VIDE C.F.6669/2014 DATED 14.11.2014, R2 IS RECORDED AS THE LHR OF DECEASED R1)** - **2 VIMALA, W/O. APPUKUTTAN RESIDING AT CHIRAVATTOM VERKOLI, POLPULLY VILLAGE, PALAKKAD TALUK.** **RSA.No.1060 OF 2004 -2-** ## **RESPONDENTS 3 TO 8 IN RSA/RESPONDENTS 4 TO 9 IN THE LOWER APPELLATE COURT/DEFENDANTS 4 TO 9 IN THE SUIT** |**3**|**RADHAKRISHNAN, AGED 1, (MINOR),**| |---|---| ||**NOW A MAJOR, S/O. PONNAN, RESIDING AT,**| ||**THEMBARAMADAYIL, KUTTIPALLAM VILLAGE, CHITTUR TALUK.**| |**4**|**RAJESH, S/O. DO. IN DO. LATE A MINOR**| ||**NOW A MAJOR, IN DO.**| |**5**|**THANKA, D/O. KUNJAKAN RESIDING AT**| ||**CHIRAVATTOM, VERKOLI, POLPULLY VILLAGE, PALAKKAD.**| |**6**|**RAJAN, S/O. VELAYUDHAN, RESIDING AT**| ||**KOTTAPALLAM, KOTTEKKAD VILLAGE, PALAKKAD TALUK.**| |**7**|**PANKAJAM, D/O. DO. IN DO. DO.**| |**8**|**KARTHYANI, D/O. DO. IN DO. DO.**| **R1 BY ADV. SRI.S.NITHIN ANCHAL R1 BY ADV. SRI.RAJESH SIVARAMANKUTTY R5 BY ADV. SRI.S.NITHIN (ANCHAL)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2020, THE COURT ON 27-02-2020 DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RSA No.1060 of 2004** **= = = = = = = = = = = = = = = = = = Dated this the 27[th] day of February, 2020** ## **JUDGMENT** The suit for partition was dismissed by the trial court. The decree was reversed in appeal by the plaintiffs and a preliminary decree for partition passed. Challenging the same, defendants 1 to 3 are in appeal. 2. One Kunjakan had four children viz. Ponnan, Velan, Kalyani and Thanka. The wife and children of Ponnan are defendants 1 to 5; the wife and daughter of Velan are plaintiffs 1 and 2; the children of Kalyani are defendants 7 to 9; Thanka is the 6[th] defendant. According to the plaintiffs, the plaint schedule property which consists of two items belonged on leasehold right to their common ancestor Kunjakan, and on his death each of the RSA No.1060 of 2004 :- 2 :- children or their branches got 1/4[th] shares each, over the properties. 3. The sixth defendant remained ex parte. Defendants 7 to 9 supported the plaintiff's claim. The suit was opposed by defendants 1 to 5 contending that their predecessor, Ponnan was the lessee of the property; thus denying the title of Kunjakan and the partibility of the property. 4. The trial court found that there is lack of evidence to find that Kunjakan was the lessee of the property. The lower appellate court found that, on the admission of DW1 as well as on the documents, Kunjakan was in possession of the property which probabilises lease in his favour rather than in favour of one of his sons, Ponnan. Accordingly a preliminary decree for partition was passed declaring 1/4[th] rights for each of the RSA No.1060 of 2004 :- 3 :- branches of Ponnan, Velan, Kalyani, and for Thanka. 5. Heard learned Senior Counsel Sri.S.V. Balakrishna Iyer on behalf of the appellantsdefendants 1 to 3 and Sri.Rajesh Sivaramankutty on behalf of the contesting respondents-plaintiffs, on the following substantial question of law:- _“Is there sufficient evidence to find that the leasehold right vested with Kunjakan, the common ancestor ?”_ 6. The Jenmi of the property was one Sivaramakrishna Iyer. DW1 in cross-examination has admitted that the property was in the possession of Kunjakan prior to the lease obtained by her husband-Ponnan. The nature of right under which Kunjakan held possession of the property is not stated by her. There is no case that the interest and possession which Kunjakan had, was surrendered to the Jenmi prior to the grant of the alleged lease in favour of Ponnan. DW1 has further admitted RSA No.1060 of 2004 :- 4 :- that on the death of Kunjakan, she and her husband were managing the property. Ext.A4 which is the certified copy of the assessment register from the Panchayat evidences that the building situated in the property was assessed in the name of the wife of Kunjakan. The above factors when considered together, probabilises the contention that the interest over the property vested with Kunjakan and that after his death the eldest son Ponnan was managing the property. Incidentally it is also worthwhile to note that Velan, the other son-the predecessor of the plaintiffs, had predeceased Kunjakan. In that view of the matter the documents produced by the defendants is not of any consequence. The conclusions arrived at by the lower appellate court, that Kunjakan was the original interest holder of the property, is based on materials and cannot be held to be perverse. The substantial question of law is answered accordingly. 7. As noticed, the view adopted by the first appellate court is based on materials and is a RSA No.1060 of 2004 :- 5 :- possible view. Being a Second Appeal under Section 100 of the Code of Civil Procedure, it does not fall within the jurisdiction of this Court to interfere with the finding of the lower appellate court on factual findings merely because another view of the matter is possible. [See Veerayee Ammal v. Seeni Ammal (2002) 1 SCC 134 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors (1999) 3 SCC 722) ]. It would be profitable to refer to paragraph 5 of the judgment reported in (1999) 3 SCC 722) which reads as follows:- _“5. It is not within the domain of the High_ _Court to investigate the grounds on which the findings were arrived at, by the last court of fact,_ _being the first appellate court. It is true that the lower appellate court should not ordinarily reject_ _witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when_ RSA No.1060 of 2004 :- 6 :- _it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.”_ In the result, the Second Appeal fails and is accordingly dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge