IMPORTANT POINTS
Decision on extraneous considerations, without any pleading or evidence, cannot be sustained.
High Court cannot interfere in concurrent findings of fact in second appeal.
Existence and framing of substantial question of law is sine qua non for second appeal.

Judgment :-

Dalveer Bhandari, J.

1. This appeal is directed against the judgment dated 23rd March, 2000 passed by the High Court of Kerala at Ernakulam in Second Appeal No.518 of 1990

2. Theappellant is aggrieved by the order of the High Court because the High Court in second appeal under section 100 of Civil Procedure Code, 1908 reversed the concurrent findings of the trial court and the first appellate court. According to the appellant, the second appeal did not involve any question of law much less any substantial question of law warranting interference by the High Court under section 100 of the Code of Civil Procedure.

3. Thefacts which are necessary to dispose of the appeal are recapitulated as under:

.The appellants were defendants in the suit and the respondents were the plaintiffs. The plaintiffs filed a suit contending that the property in question is a subtarwad property of defendant no.1 and, therefore, the members of the subtarwad including the plaintiffs and defendants no.1 to 3 are entitled to 1/11 share each for each member of the subtarwad under the customary law. Defendant nos.1 to 3 and defendant nos.4 and 5 who got assignment of the property for a valuable consideration from defendant nos.1 to 3 contended that the suit property is the personal property of defendant no.1 who has exclusive right of title and possession ever since 1103 M.E. under registered settlement deed executed by the grandfather and grandmother of defendant no.1, therefore, the suit property is not partible.

4. Both the trial court as well as the first appellate court concurrently found that defendant no.1 has exclusive right and possession over the suit property and that the plaintiffs have failed to prove that the suit property is subtarwad property or that the parties are governed by the customary marumakkathayam law. The court further held that the burden is on the plaintiffs to prove the customary law is applicable which the plaintiffs have failed to prove. On the other hand, several documents executed in the family of the parties prove that the parties are governed by makkathayam law.

5. In the impugned judgment, the High Court on re-appreciation of the evidence in the case reversed the concurrent findings of the courts below and held that the suit property is the subtarwad property and the parties are governed by ezhava marumakkathayam customary law. According to the appellants, the findings of the High Court are wholly unsustainable. The burden of proof of the customary law is upon the person who alleges it. In the instant case, the respondents who were the plaintiffs before the trial court have clearly failed to prove the customary law. On the other hand, the trial court and the first appellate court on evidence found that the parties are following makkathayam system and not marumakkathayam system. Under the marumakkathayam law, every member is entitled to one share in the property. The law of succession and inheritance followed by the parties is

.makkathayam law.

6. Thetrial court on the documents and evidence on record framed the following issues:

i. Whether the suit is maintainable?

ii. Whether the Munsiffs Court has pecuniary jurisdiction to try this suit?

iii. Whether the plaintiffs have paid proper court fees?

.iv. Whether the plaint schedule property is the subtarwad property of plaintiffs and defendants 1 to 3?

.v. Whether the plaintiffs are entitled to get share in the plaint schedule property and if so, what is the share due to the plaintiffs?

vi. Whether defendants 4 and 5 have done any improvements in the property and if so what is the quantum thereof?

vii. Whether the plaintiffs are entitled to get any mesne profits and if so, what is its extent?

viii. Reliefs and Costs? Additional

ix. Are plaintiffs and defendants 1 to 3 Marumakkathayee Ezhavas? Are they governed by Marumakkathayam law?

7. According to the trial court, issues no.(iv), (v) and (ix) were main issues and they were decided together. The trial court came t