IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 RSA.No. 1314 of 2010() ---------------------- AS.131/2007 of I ADDL. DISTRICT COURT, PALAKKAD OS.1/2004 of MUNSIFF COURT, CHITTUR .................... APPELLANT -------------------- THAJNNEESA, D/O. MOHAMMED MOIDEEN RAWTHER, RESIDING AT MANIMUTHUNGAR, POLLACHI ROAD, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK. BY ADV. SRI.P.R.VENKETESH SRI.P.R.RAJA RESPONDENT(S): RESPONDENTS ---------------------------------------------- 1. RAMASWAMY, S/O. PERUMAL, MANIMUTHU NAGAR, POLLACHI ROAD, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK. 2. ARUCHAMI, S/O. RAMASWAMI, MANIMUTHU NAGAR, POLLACHI ROAD, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK. 3. VALIYAMMAL, D/O. RAMASWAMI, RESIDING AT -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1314 OF 2010 -------------------------------- Dated this the 24th day of January 2011 JUDGMENT Plaintiff is the appellant. Concurrent decision rendered in a suit for injunction holding that the plaintiff is not entitled to the discretionary relief canvassed for is challenged in the appeal. Suit property is described as having an extent of 70 cents. Admittedly, there was a previous suit between the plaintiff and the first defendant in which over 2 cents of land originally belonging to the plaintiff, the right of kudikidappu canvassed by that defendant was recognised and the suit filed by the plaintiff dismissed. The title deed on which the plaintiff claimed possession to sustain the decree of injunction disclosed that his title is confined only to 70 cents only. However, according to the plaintiff, the present suit had been filed excluding 2 cents over which the kudikidappu right of the first defendant was recognised under the previous suit. In the present case, the son of the plaintiff was examined as PW2. He asserted, during the course of his evidence, that over 5 cents of land covered by the plaint property, the plaintiff had already executed a gift deed in his favour and transferred the title and possession in his favour, and over that 5 cents he is having exclusive possession and R.S.A No.1314 OF 2010 - 2 - enjoyment. The execution of a gift deed as indicated above in favour of PW2, the son, is not disputed by the plaintiff. Taking note of all the above aspects, the trial court concluded that the claim of exclusive possession on the basis of title canvassed by the plaintiff over the entire extent of the suit property is unacceptable, and so much so, he is not entitled to the decree of injunction canvassed for. After reappraisal of the evidence, in appeal, the lower appellate court, confirming the above finding, dismissed the appeal. After going through the judgments of both the courts below with reference to the submissions made by the learned counsel for the appellant, I find no infirmity leave alone any illegality in the conclusion formed by the courts below to nonsuit the plaintiff. If at all the plaintiff is entitled to any relief on the strength of his title, he can sue for appropriate reliefs, if so advised. Appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv