UNNIKRISHNAN S/O PANANGATTU PUTHENVEETTIL SARASWATHI AMMA Vs. GOPALAKRISHNAN S/O LATE SARASWATHY AMMA

JUDGEMENT

(1.) THIS appeal arises from the judgment and decree in O.S.No.90 of 1991 of the Court of learned Munsiff-Magistrate, Pattambi, confirmed by the learned Sub Judge, Ottappalam in A.S.No.59 of 2005.

(2.) APPELLANTS/plaintiffs sought partition of the suit properties claiming that it (plaint A schedule) belonged to one Govindan Nair in jenm, that property was sold in auction in execution proceeding in S.C.No.513 of 1926 and was purchased by one Neelakandan Nair who took delivery of the property through Court on 11.10.1938. The said Neelakandan Nair granted an oral lease of the property in favour of Kandamkulangara Sankunni. Later, Neelakandan Nair assigned his jenm right to Sankaran Namboodiripad as per document No.100 of 1940, a certified copy of which is marked as Ext.A2. He sold the property to Mariyil Govindan Nair as per Ext.A3 who executed a Will in favour of his wife, Kalyani Amma and children. Plaintiffs and defendants, it is alleged are their legal representatives and it is on the above premise that plaintiffs sought partition and separate possession of the share claimed by them in the suit properties.

(3.) LEARNED Senior Advocate has contended that the finding entered by the courts below regarding res judicata and constructive res judicata is not correct as both cannot go together. It is also contended that finding of the first appellate court regarding registered documents in a collateral proceeding as if the said documents did not confer right is not correct in view of Sec.92 of the Evidence Act.