Defendant number.1 to 3 and defendant number.4 and 5 who got assignment of the property for a valuable companysideration from defendant number.1 to 3 companytended that the suit property is the personal property of defendant number1 who has exclusive right of title and possession ever since 1103 M.E. under registered settlement deed executed by the grandfather and grandmother of defendant number1, therefore, the suit property is number partible.
The appellants aggrieved by the judgment of the trial companyrt and the first appellate companyrt preferred second appeal before the High Court.
Under the marumakkathayam law, every member is entitled to one share in the property.
The first appellate companyrt upheld the judgment and decree passed by the trial companyrt.
The law of succession and inheritance followed by the parties is makkathayam law.
Both the trial companyrt as well as the first appellate companyrt companycurrently found that defendant number1 has exclusive right and possession over the suit property and that the plaintiffs have failed to prove that the suit property is subtarwad property or that the parties are governed by the customary marumakkathayam law.
In the impugned judgment, while setting aside the companycurrent findings of fact, the High Court observed that parties to the suit being persons residing in Kollam District and the property over which they claim right also being situated in Kollam District, they were following misravazhi system of inheritance which was essentially the principles of Marumakkathayam system of inheritance with modifications recognized by judicial pronouncement.
The issues, therefore, were found accordingly against the plaintiffs and in favour of the defendants holding that the plaint schedule property is number the subtarwad property of the plaintiffs and defendant number.1 to 3 and they are number Marumakkathayee ezhavas and hence the plaintiffs are number entitled to get any share in the said property.
This was number the case of either of the parties.
Whether the plaintiffs have paid proper companyrt fees?
The first appellate companyrt also companyprehensively re evaluated and re examined the entire evidence on record and came to the companyclusion that the evidence led by the side of the plaintiffs is number companyvincing and reliable to uphold the case advanced by the plaintiffs and on the other hand, the evidence pointed out by the defendants would lead to the inference that the parties are makkathayee ezhavas.
Reliefs and Costs?
According to the trial companyrt, issues number iv , v and ix were main issues and they were decided together.
Whether the Munsiffs Court has pecuniary jurisdiction to try this suit?
Whether defendants 4 and 5 have done any improvements in the property and if so what is the quantum thereof?
The defendants have succeeded in showing that the parties are governed by makkathayam law and that the plaint schedule property is number the subtarwad property as claimed by the plaintiffs.
This necessarily follows that the plaintiffs are number entitled to claim partition and get any share in the plaint property.
Whether the plaintiffs are entitled to get share in the plaint schedule property and if so, what is the share due to the plaintiffs?
On the other hand, the trial companyrt and the first appellate companyrt on evidence found that the parties are following makkathayam system and number marumakkathayam system.
The trial companyrt on the documents and evidence on record framed the following issues Whether the suit is maintainable?
Whether the plaint schedule property is the subtarwad property of plaintiffs and defendants 1 to 3?
Are they governed by Marumakkathayam law?
Whether the plaintiffs are entitled to get any mesne profits and if so, what is its extent?
Additional ix.
The trial companyrt came to the companyclusion that the plaintiffs have number proved that they are Marumakkathayee ezhavas.
Are plaintiffs and defendants 1 to 3 Marumakkathayee Ezhavas?
Dalveer Bhandari, J. This appeal is directed against the judgment dated 23rd March, 2000 passed by the High Court of Kerala at Ernakulam in Second Appeal No.518 of 1990 The appellant is aggrieved by the order of the High Court because the High Court in second appeal under section 100 of Civil Procedure Code, 1908 reversed the companycurrent findings of the trial companyrt and the first appellate companyrt.
