IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 RSA.NO. 20 OF 2010() ------------------------------- AS.78/2008 OF ADDL.DISTRICT COURT, KOTTAYAM OS.63/1998 OF SUB COURT, PALA .................... APPELLANTS – RESPONDENTS – DEFENDANTS 1 TO 6 ------------------------------------------------------------------------- 1. MARIAMMA @ OMANA, W/O. OUSEPH PANCHERAPUTHENPURAYIL, NOW RESIDING AT ERATHEDATHU PURAYIDOM, BHARANANGANAM MURI, BHARANANGANAM.P.O, BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT. 2. JOSEPH JOSE, AGED 35, S/O. JOSEPH @ JIMMICHAN, RESIDING AT ERATHEDATHU PURAYIDOM, BHARANANGANAM KARA, BHARANANGANAM.P.O, BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT. 3. KAVITHA, AGED 24, W/O.JOSE, RESIDING AT ERATHEDATHU PURAYIDOM, BHARANANGANAM KARA, BHARANANGANAM.P.O, BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT. 4. JOSEPH CYRIAC, AGED 29, S/O. JOSEPH, RESIDING AT ERATHEDATHU PURAYIDOM, BHARANANGANAM KARA, BHARANANGANAM.P.O, BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT. 5. MINU, AGED 22, S/O. JOSEPH, RESIDING AT ERATHEDATHU PURAYIDOM, BHARANANGANAM KARA, BHARANANGANAM.P.O, BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT. 6. VARKEY JOY, AGED 52, S/O. VARKEY PULIKUNNEL, PULIKUNNEL HOUSE, CHENNIKUZHI.P.O, OLIVIRIPPUR KARA, UDUMBANNOOR VILLAGE. BY ADV. SRI.C.S.MANILAL RESPONDENT - RESPONDENTS – PLAINTIFF ------------------------------------------------------------- KURUVILLA ABRAHAM, AGED 66, S/O. KURUVILLA, KOKKATTU HOUSE, BHARNANGANAM MURI, BHARANANGANAM.P.O, BHARANANGANAM VILLAGE, KOTTAYAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. No.20 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11th day of January, 2010 J U D G M E N T ---------------------- Defendants 1 to 6 have come up in Second Appeal challenging the concurrent finding and decree passed against them by the courts below. 2. Respondent claimed that the suit property belonged to him as per Ext.A1, settlement deed which was subject to a life estate interest in favour one Mariamma, widow of the eldest brother of respondent. She was permitted to reside in the building in the suit property until she remained unmarried. Appellant No.1 is the daughter of the life estate holder. Appellant Nos.2, 3 and 5 are the children of appellant No.1. Appellant No.6 is the husband of the sister of appellant No.1. Respondent claimed that during the time the life estate holder was residing in the suit property her children and grand children were also staying there. The life estate holder died on 14.12.1997. In the year 1998 respondent filed the suit for recovery of possession of the suit property with mesne profits and for other reliefs. Appellants resisted the suit contending that R.S.A. No.20 of 2010 -: 2 :- respondent did not get right or possession over the suit property as per Ext.A1 and claimed title and possession for themselves. They claimed that after the death of the father of appellant No.1 (husband of the life estate holder) respondent's father assigned 1.88 acres to the respondent as per document No.2096/1960 which he sold to another person. Appellant No.1 made a claim over the said property. That was mediated and the dispute was settled as per which appellant No.1 gave up her claim over the 1.88 acres in consideration of respondent giving up his claim over the suit property in favour of appellant No.1. Appellant No.1 filed O.S. No.240 of 2001 seeking partition of the suit property in the Munsiff's court. That suit was transferred to the court of learned Sub Judge where the present suit was pending. But at the time of trail appellant No.1 withdrew the suit for partition with liberty to file fresh suit (I am told that subsequently a suit for partition has been filed). Respondent gave evidence as P.W.1 and proved Exts.A1 to A5. Appellant No.1 gave evidence as D.W.1 and examined D.W.2 to prove the alleged family settlement (D.Ws.3 and 4 are Power of Attorney Holders and their evidence is not of any relevance so far as the issue regarding family settlement is concerned). Appellant No.1 proved Exts.B1 to B23. Courts below found that respondent got title R.S.A. No.20 of 2010 -: 3 :- and possession of the suit property subject to the life estate in favour of the mother of appellant No.1 and on the death of life estate holder on 14.12.1997 respondent is entitled to get eviction of the appellants from the suit property. Mesne profits was awarded at the rate of Rs.750/- per month. First appellate court has confirmed the finding against the appellants. Hence the Second Appeal urging by way of substantial question of law whether trial court was legally justified in granting a decree for mandatory injunction which was not asked for and whether courts below were right in holding against the family settlement pleaded by the appellants. Learned counsel for appellants contended that findings of courts below are not correct. Learned counsel appearing for respondent supported the findings entered by the courts below and contended that no substantial question of law is involved. 3. It is not disputed, and proved by Exts.A2 and A3 that even during the lifetime of the life estate holder, respondent had asserted his title over the suit property on the strength of Ext.A1 and obtained a decree for injunction against the life estate holder committing waste in the suit property. Therefore appellants cannot justifiably contend that respondent has no title over the property. Moreover, courts below found basing on Ext.A1 which is not under R.S.A. No.20 of 2010 -: 4 :- challenge that respondent has title over the property. It is also not disputed that the life estate holder died on 14.12.1997. The plea of family settlement though attempted to be proved through D.W.2 was not accepted by the courts below. That is a finding of fact based on evidence and does not involve any substantial question of law. Though recovery of possession was asked by the respondent it is seen from the judgment of the trial court that a mandatory injunction is granted directing appellants to surrender the suit property and building to the respondent within a period of six months. Respondent is also permitted to recover possession of the property through court in case appellants failed to do so. I do not find any substantial difference in the relief granted against the relief prayed for. I do not find any substantial question of law involved in the Second Appeal requiring its admission. 4. At this stage learned counsel for appellants requested six months' time to vacate the suit property. It is submitted by learned counsel that appellants have to find out an alternative accommodation. Request is objected by counsel for respondent. 5. I must bear in mind that parties are fighting from 1998 onwards. It is not as if appellants had no time to find an alternative accommodation. But considering the facts and circumstances stated R.S.A. No.20 of 2010 -: 5 :- by learned counsel appellants are granted three months' time from this day to vacate the suit property and comply with the decree of the trial court failing which respondent is entitled to get possession of the suit property through the process of court. With the above direction Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. No.20 of 2010 -: 6 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.20 of 2010 =================== J U D G M E N T 11TH JANUARY, 2010