KOCHUKAKKADA ABOOBACKER Vs. ATTAH KASIM

JUDGEMENT

(1.) Having perused the judgment of the High Court in Second Appeal No. 542/75 passed on 13-2-1979, we are of the view that the High Court has rightly interfered with the concurrent finding of fact recorded by the trial Court as well as by the appellate Court and decreed the suit.

(2.) The trial Court had wrongly proceeded on the premise of burden of proof on the plaintiff which was corrected by the appellate Court. However, the appellate Court committed another error of not considering the documentary evidence in proper perspective of the respective claims of the parties. Admittedly, the plaintiffs and the first defendant are children of Ahmmad Malmi through his first and second wives respectively. The only claim was with regard to one item, namely, Konchukakkada property. It is seen that the case of the plaintiffs was that it was left undivided to the extent of their 3/4th share therein of their father and that, therefore, they are entitled to partition and separate share. Ex. A-3 is a crucial document in establishing the title of the plaintiffs in the property. In those judicial proceedings it was declared that the defendants in that suit had no title to the trees. It would appear that in the island, the title to the tress is relatable to the title to the land. Under those circumstances, the High Court has proceeded on the basis that it was relatable to the title to the property. That finding gets corroboration from other judicial proceedings under Exs. A-4, A-8 and A-9. It would thus be clear that the title of the property which is the subject-matter of the partition suit in favour of the respondents, stands established. The appellate Court had not considered these documents in proper perspective and the effect of those documents on the rights of the parties. Accordingly, the learned Judge reluctantly had reconsidered the evidence and, in our view, quite rightly since it is not a mere appreciation of evidence but drawing inferences from the admitted documents. Since proper construction of the documents and inferences have not legally been drawn by the appellant Court, the High Court has gone in detail and recorded the finding thus:

(3.) Having considered the totality of the facts and circumstances, we are of the considered view that the learned Judge had rightly interfered with the concurrent finding of fact recorded by the trial Court and appellate Court and granted a preliminary decree for partition. We do not find any error of law much less substantial question of law, for interference.