VILASINI Vs. DEVAKY

JUDGEMENT

(1.) DEFENDANTS 1 to 3 and 5 in O.S.3000/2000 on the file of Ist Additional Munsiff's Court, Thrissur are the appellants. Respondents 1 to 5 are the plaintiffs and other respondents, the other defendants. Suit was for partition of the plaint schedule house. Respondents 1 to 5 contended that there is an old house in the plaint schedule property and appellants are residing therein and they are having half right in that house as per Ext.A1 registered deed No.4275/1119 and house of deceased 6th defendant is very near to the house of appellants and third respondent has no house of his own and respondents 1 to 5 are entitled to get their half share separated. It is contended that they requested appellants to give their half share but they are not willing. It is also contended that if the house is given on rent, it would fetch a monthly rent of Rs.500/-. Respondents 1 to 5 therefore sought division of the properties and allotment of their half share with share of profits calculated at the rate of Rs.250/- per month.

(2.) APPELLANTS resisted the suit contending that the plaint schedule house is not available for partition. It is contended that the house which was in existence at the time of execution of Ext.A1 document is now not in existence. Existing house is constructed by the appellants, spending their own money. When the house was constructed properties were not separated and therefore small portion of the house was extended to the plaint schedule property. It is not available for partition. Defendants 4 and 6 remained ex-parte.

(3.) FACT that property was acquired under Ext.A1 assignment deed is not in dispute. Ext.A1 shows that the property is inclusive of a building. Though appellants would contend that the said building was subsequently demolished and subsequently the present building was constructed, apart from the ipse dixit of DW1, no other evidence was adduced to prove that the building which was there at the time of execution of Ext.A1 was demolished and the present building was constructed by the appellants using their own funds later. If building was constructed subsequently as claimed, there would have been documentary evidence like the plan or license obtained from the local authority to show that the house was constructed by the appellants. Though learned counsel argued that Ext.B1 series of tax receipts establish that building was constructed by them, payment of building tax will not establish that the house was constructed by the appellants as canvassed by them. If there was no house in the property, when it was acquired under Ext.A1, position would have been different. But when Ext.A1 shows that there was a building and it is the case of the appellants that the building now existing is not that building but a new building constructed by them, it is upto them to prove that fact. As no other evidence was adduced, courts below were fully justified in finding that the existing house is the house which was referred to in Ext.A1. In such circumstances, finding of the courts below that respondents 1 to 5 are entitled to half share in that building is perfectly correct.