IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 2^ND DAY OF JULY 2024 / 11TH ASHADHA, 1946 RSA NO. 327 OF 2024 AGAINST THE JUDGMENT DATED 09.04.2024 IN AS NO.166 OF 2002 OF DISTRICT COURT, ERNAKULAM ARISING OUT OF THE JUDGMENT DATED 29.11.1997 IN OS NO.707 OF 1994 OF SUBORDINATE JUDGE'S COURT, NORTH PARAVUR.

APPELLANT(S)/1ST RESPONDENT/DEFENDANT:

JOY AGED 67 YEARS SON OF KUNJUVAREETH, KOLENCHERRY MANI VEETTIL, CHOWWARA KARA, CHOWWARA VILLAGE, ALUVA TALUK, ERNAKULAM, PIN - 683571 BY ADVS.

T.RAMPRASAD UNNI K.RAMAKUMAR (SR.)

S.M.PRASANTH ASWINI SANKAR R.S.

SHEHIN S.

RESPONDENT(S)/APPELLANT & ADDITIONAL 2ND RESPONDENT IN AS/PLAINTIFF IN OS:

1 SMT. K. V. MARY AGED 70 YEARS D/O. LATE KUNJUVAREETH, KOLENCHERRY VEETTIL, CHOWARA KARA, CHOWARA VILLAGE, ALUVA TALUK, ERNAKULAM, NOW RESIDING AT KUPPAYAR STREET, CHENNAI, TAMIL NADU., PIN - 683571

2 SMT. ANNIES CHAKKAPPAN AGED 68 YEARS, WIFE OF CHAKKAPPAN, D/O. KUNJUVAREED, PUTHUSSERY HOUSE, CHIRAKKAKAM, VARAPUZHA VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT, PIN - 683517 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

C.S.SUDHA, J.

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R.S.A.No.327 of 2024 --------------------------------------------- Dated this the 02^nd day of July 2024

J U D G M E N T

This second appeal under Section 100 read with Order XLII Rule 1 CPC filed by the defendant/appellant is against the judgment and decree dated 09/04/2024 in A.S.No.166/2002 on the file of the District Court, Ernakulam, which appeal in turn is against the judgment dated 29/11/1997 in O.S.No.707/1994 on the file of the Subordinate Judge's Court, North Paravur. The parties and the documents will be referred to as described in O.S.No.707/1994.

2. The suit was one for partition. The defendant is the brother of the plaintiff. The plaint schedule property originally belonged to Kunjuvareeth, the father of the plaintiff and defendant. Plaintiff has a sister named Annis. Kunjuvareeth had given Annis her share in his property. Kunjuvareeth died intestate. Therefore, the plaintiff and the defendant alone are his legal heirs in absolute possession and enjoyment of the property. The property is now in the joint possession of the plaintiff and the defendant. Though the plaintiff claimed a share in the property, the defendant is not amenable for the same. Hence, the suit.

3. The defendant filed written statement contending that the property is not partible and that the plaintiff has no right in the property. During the life time of Kunjuvareeth, the plaintiff was given her share in the property in addition to ₹20,000/- given in cash and 25 sovereigns of gold ornaments at the time of her marriage. For the remaining amount, an usufructuary mortgage had been executed with respect to the property on 26/11/1974 in favour of the plaintiff and her husband. After the death of Kunjuvareeth, the property absolutely belongs to the defendant. The defendant has constructed a building in the plaint schedule property using his own funds. As the plaintiff has already been given her share in the property, she is not entitled to any further share in the property.

4. Necessary issues were framed by the trial court. The parties went to trial on the basis of the aforesaid findings. PW1 was examined and Exts.A1 and A2 were marked on the side of the plantiff. DW1 was examined and Ext.B1 was marked on the side of the defendant. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides found that during the life time of late Kunjuvareeth, the plaintiff's share in the property had been given and in such circumstances, she could no longer claim any further share in the property. Finding so, the suit was dismissed. Aggrieved, the plaintiff filed A.S.No.166/2002. On going through the appellate court judgment, I find that initially the suit, filed in the year 1994 was dismissed. In the appeal preferred by