C.P. AMINA Vs. T.M. KUNHAVARAN

JUDGEMENT

(1.) THE plaintiff in O.S.No.418 of 2005 of the court of Principal Munsiff, Kozhikode -II sought partition of plaint B schedule tracing title under her father who died in the year, 1992. The trial court found against the claim and dismissed the suit. That was confirmed by the learned Sub -Judge, Kozhikode in A.S.No.57 of 2009. Hence this second appeal. The suit property originally belonged to Kunhimoyi, father of appellant/plaintiff as per Ext.A1, assignment deed which covers 40 cents. According to the plaintiff, a document of sale is seen to be created in the name of the 3rd defendant in the year, 1983 but that document is invalid since Kunhimoyi was not in sound disposing state of mind when that document is said to be executed. It is further contended that at any rate, what is assigned by the said document is only 7.50 cents and the balance 32.50 cents is available for partition.

(2.) DEFENDANTS 1 to 3 contended that Kunhimoyi assigned the entire 40 cents to the 3rd defendant as per Ext.B22, assignment deed No.2352 of 1983. The said document recited that certain amounts are to be paid to the plaintiff, defendants 4 and 5 and the late Ithinam within five years from the date of sale. Defendants 1 to 3 contended that 3rd defendant offered the said amounts, but it was not accepted by the said persons. They denied that as per Ext.B22, only 7.50 cents was assigned. According to them, while mentioning the side measurement of the first tak in the document, there happened to be an error. They also contended that 3rd defendant assigned plaint B schedule to supplemental defendants 15 and 16 as per Ext.B23 and supplemental defendants 15 and 16 sold 12.35 cents to the supplemental 17th defendant as per Ext.B27, assignment deed No.258 of 2006. Thus, the plaint B schedule is not available for partition.

(3.) IN the trial court, DW5, the scribe was examined to prove Ext.B22. He stated that while describing the first tak of plaint B schedule in Ext.B22, there happened to be an error in mentioning the side measurements as 1 > kole instead of 21 > kole. Trial court accepted the explanation, found that the entire property was sold as per Ext.B22 followed by the subsequent assignments and hence, no property is available for partition. Accordingly, the suit was dismissed. First appellate court confirmed the finding. Hence, this second appeal.