IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 RSA.No. 1037 of 2008() ---------------------- AS.308/2005 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.434/2001 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/1ST DEFENDANT: -------------------------------------------- SURESHKUMAR, S/O.MADHAVAN, ALSA APARTMENT, B-7, T.C.40/26364, ULLOOR LANE, DPI, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): RESPONDENTS/PLAINTIFF & DEFENDANTS 2 & 3: -------------------------------------------------------- 1. E.P.PREMACHANDRAN NAIR,S/O.ESWARA PILLAI T.C.9/2660, A-7, ELANKAM LANE, VELLAYAMBALAM, THIRUVANANTHAPURAM, NOW RESIDING AT P.O.BOX-3736, SHARJAH, U.A.E. 2. GEETHA NAIR, D/O.SAVITHRI AMMA, T.C.NO.28/869, GEETHANJALI, KUNJU VEEDU LANE, KAITHAMUKKU, THIRUVANANTHAPURAM. 3. SAVITHRI AMMA, T.C.NO.28/869, GEETHANJALI, KUNJU VEEDU LANE, KAITHAMUKKU, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 1037 of 2008 * * * * * * * * * * * * * * * * * * Dated: 14-11-2008 JUDGMENT The first defendant in O.S. No. 434 of 2001 on the file of the Ist Addl. Sub Court, Thiruvananthapuram is the appellant in this Second Appeal. The said suit was one for recovery of possession of the plaint schedule property which is a residential flat admeasuring 1560 square feet in an apartment situated at Thycaud in Thiruvananthapuram. The plaintiff is the husband of the 2nd defendant and the 3rd defendant is the mother of the 2nd defendant. The appellant /first defendant is a stranger. The plaint schedule residential flt absolutely belongs to the plaintiff who has been working abroad in Sharja for the past several years. While he was abroad, his wife and mother-in-law respectively were residing in the plaint schedule flat. The case of the plaintiff was that during his absence his wife was leading a licentiate life and on account of that there was estrangement between the plaintiff and the 2nd defendant, that she had inducted the first defendant, a stranger under Ext.B2 agreement R.S.A. 1037 of 2008 -:2:- dated 28-5-2001 which is a collusive arrangement between defendants 1 and 2 and had handed over the flat to the first defendant. The explanation put forward by defendants 1 and 2 that it was to avert the attachment in a money suit filed by the first defendant against the plaintiff and his wife that Ext.B2 agreement was executed and it was with the consent of the plaintiff is false and that between 1995 and 2000 the plaintiff had never come to India therefore, he had not borrowed the alleged amount of Rs. 3,00,000/- from the first defendant under the original of Ext.B1 promissory note dated 29-8-1998. 2. Defendants 2 and 3 who are the wife and mother-in- law of the plaintiff remained ex parte. The suit was resisted by the first defendant who contended that the alleged estrangement between the plaintiff and his wife was false, that the plaintiff who had lost his business had come down to India and the plaintiff and his wife had approached him for a loan of Rs. 3,00,000 rupees which was lent by him as evidenced by the original of Ext.B1 promissory note dated 21-8-1998 and when the above amount was not repaid, the first defendant was constrained to file a suit against the plaintiff and his wife as O.S. 9 of 2001 R.S.A. 1037 of 2008 -:3:- before the Sub court, Thiruvananthapuram and it was on the instructions and consent of the plaintiff that his wife the 2nd defendant executed Ext.B2 agreement dated 28-5-2001 handing over the flat to the first defendant in order to avert the attachment in the money suit filed by the first defendant. 3. The courts below did not accept the above defence and decreed the suit as prayed for . Hence, this Second Appeal. 4. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- The plaintiff who asserted that he had come to India between the period from 1995-2000 has not produced any material in support of the same. The best evidence would have been his passport which would contain endorsement showing the dates on which he had come to India. For reasons best known to the plaintiff, he has not produced the passport. The alleged estrangement between the plaintiff and his wife was only a make believe with a view to defeat the rights of the first defendant who had advanced a sum of Rs. 3,00,000/- to the plaintiff and his wife. When there was non payment of the said amount, the first defendant was constrained to file a suit against the plaintiff R.S.A. 1037 of 2008 -:4:- and his wife and Ext.B2 agreement was executed by the 2nd defendant wife with the full consent and instructions of the plaintiff. A perusal of Ext.A6 judgment of the Family Court will show that the divorce was only a subterfuge. If the plaintiff was a big business man his wife would not have settled the matter for a petty amount of Rs. 1,30,000/-. 5. I am afraid that I cannot agree with the above submissions. It may be true that the plaintiff did not produce his passport to substantiate his contention that he was not in India during the period between 1995 and 2000. The original promissory note dated 29-8-1998 as per which the plaintiff and his wife allegedly borrowed Rs. 3,00,000/- from the appellant was not produced before court. Admittedly, the plaint schedule flat belongs to the plaintiff. Similarly, it is not in dispute that he was working abroad in Sharja for the past several years and it was his wife and mother-in-law who are residing in the plaint schedule property. In the absence of any authority in writing by the plaintiff, his wife had absolutely no authority to induct the first defendant, a stranger into the flat. Both the courts have held that the case of the appellant that Ext.B1 agreement was R.S.A. 1037 of 2008 -:5:- executed with the knowledge and consent of the plaintiff is not true. If so, the first defendant who came into possession of the flat without any authority has no right to continue in possession of the flat. Ext.A6 judgment shows that the marriage between the plaintiff and 2nd defendant was on 8-8-1977 and their relationship became strained from April 2000 onwards. It was for the marital partners to come to any arrangement for purchasing peace between them and merely because a sum of Rs. 1,30,000/- alone has been claimed by the wife it does not mean that it was only a shadow fight between the marital partners. The findings recorded by the courts are pure findings of fact. No substantial question of law arises for consideration in this Second Appeal. The questions formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. 6. The learned counsel for the appellant prayed for some to time to vacate from the plaint schedule flat. He is a person who had absolutely no authority to come into possession of the flat, particularly, when there is nothing emanating from the plaintiff, the owner of the flat to indicate his consent to the R.S.A. 1037 of 2008 -:6:- appellant occupying the premises. However, the petitioner is given one month's time from today to vacate the plaint schedule flat on condition that he files an affidavit before the Executing Court within two weeks from today unconditionally undertaking to vacate from the plaint schedule flat within one month from today and also undertaking not to induct strangers or commit acts of waste therein until he hands over vacant possession to the plaintiff. Dated this the 14th day of November 2008. V. RAMKUMAR, (JUDGE) ani.