Judgment · High Court · 2009

P.R.RAMAN & P.BHAVADASAN, JJ.-------------------------------A.F.A.No.48 of 1994-------------------------------Dated this the 18th August, 2009J U D G M E N TRaman, J.Plaintiff is the appellant. This appeal arises out ofthe judgment of the learned Single Judge in appeal suit,A.S.No.284 of 1990. The suit is one for partition instituted by theplaintiff. There were two items of property, plaint 'A' scheduleand plaint 'B' schedule. The suit is decreed as against plaint 'B'schedule property, but dismissed as against plaint 'A' scheduleproperty, upholding the contention of the defendant that plaint 'A'schedule property belongs to him exclusively. Both the plaintiffand the defendant preferred appeals. Plaintiff preferred theappeal as against the dismissal of his claim for partition regardingthe plaint 'A' schedule property, and defendant filed the suit asagainst the decree for partition of plaint 'B' schedule property. The learned Single Judge confirmed the judgment of the courtbelow, thus dismissed the appeal filed by the defendant as also AFA.No. 48 of 19942by the plaintiff. Aggrieved by the judgment, plaintiff haspreferred this appeal. 2. The short point that arise for consideration is asto whether the finding of the trial court as confirmed by theappellate court that plaint 'A' schedule property exclusivelybelong to the defendant is in any way legal or liable to beinterfered with in an intra-court appeal filed under Section 5 ofthe High Court Act. 3. Plaint 'A' schedule property, according to theappellant-plaintiff was acquired by the income from the businessand a building had also been constructed therein with suchincome. Plaint 'A' schedule property was acquired in 1972,Ext.B1 is the certificate of purchase and that was issued in thename of the defendant. Thereafter, the defendant also obtainedpurchase certificate from the Land Tribunal as per the provisionsof the Kerala Land Reforms Act on 3.11.1976 and Ext.B2 is thesaid purchase certificate issued in the name of the defendant. Thus, the defendant was able to establish his case that the AFA.No. 48 of 19943property was acquired by him as per Ext.B1 and subsequentlyobtained Ext.B2 purchase certificate also, thus sustained the hiscontention that the property exclusively belong to him. 4. On the other hand, the plaintiff would contendthat plaint 'A' schedule property was acquired with the incomederived from the business and the building was constructedwith such income. Absolutely no evidence was adduced in thisregard. In such circumstances, both the trial court as well as theappellate court found that the plaintiff failed to establish his casethat the income from the business has been utilised for thepurpose of acquiring plaint 'A' schedule property. Though thisproperty was acquired in 1972 and a match factory was started in1981, except the ipsi dixit of the plaintiff, there is no otherevidence adduced to show that the income generated from theproperty has been utilised for the construction of the building.In the absence of any such evidence to substantiate the saidcontention, the learned Single Judge confirmed the finding of thetrial court and dismissed the appeal. AFA.No. 48 of 19944 We have carefully gone through the judgmentunder appeal and perused the records. Evidence has beendiscussed in detail and the appellant was not able to establishthat the construction of the building in plaint 'A' scheduleproperty was using the funds from the business. So also, there isno evidence to show that plaint 'A' schedule property waspurchased from out of the common funds. In suchcircumstances, it is a pure question of fact, as rightly held by thelearned Single Judge, and no interference is called for. There isno merit in this appeal, and accordingly, this appeal is dismissed. P.R.RAMAN, JUDGEP.BHAVADASAN , JUDGE.nj. P.R.RAMAN & P.BHAVADASAN, JJ.-------------------------------A.F.A.No.48 of 1994 J U D G M E N TDated: 18th August, 2009. -------------------------------