IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 23RD DECEMBER 2010 / 2ND POUSHA 1932 RSA.No. 980 of 2004() --------------------- AS.7/1993 of SUB COURT, OTTAPPALAM OS.568/1989 of MUNSIFF'S COURT, OTTAPPALAM .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------------------- VEERAN, AGED 90 YEARS, S/O. MUNDAKKAL PALLIYALIL MANNAMPURAKKAL RAMAN, RESIDING AT VEERAMANGALAM AMSOM, KARUMANAMKURUSSI DESOM IN OTTAPPALAM TALUK, PALAKKAD DISTRICT.( D I E D). LR'S IMPLEADED: *LRS OF DECEASED SOLE APPELLANT IMPLEADED: A2. UNNIKRISHNAN, 54 YEARS, S/O. LATE SHRI. VEERAN A3. SIVARAMAN, AGED 50 YEARS, S/O.LATE SHRI. VEERAN A4. SARADA, AGED 47 YEARS, D/O.LATE SHRI. VEERAN ALL RESIDING AT MUNDAKKAL PALLIYALIL MANNAMPURAKKAL, VEERAMANGALAM AMSOM, KARUMANAMKURUSSI DESOM, OTTAPALAM TALUK. *ADDL.APPELLANTS 2 TO 4 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT AS PER ORDER DATED 20/09/2010 IN I.A.NO.1021/2010. BY ADVS. SMT.T.D.RAJALAKSHMI, SRI.R.SREEHARI. RESPONDENT(S): RESPONDENT/DEFENDANT: ---------------------------------------------------------------------- GOVINDAN, S/O. MUNDAKKAL PALLIYALIL MANNAMPURAKKAL VEERAN, RESIDING AT VEERAMANGALAM AMSOM, KARUMANAMKURUSSI DESOM IN OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1704/2004 IN RSA NO.980/2004 CLOSED 23/12/2010 SD/- P.S.GOPINATHAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss P.S.GOPINATHAN, J. ---------------------------- R.S.A.No.980 OF 2004 ----------------------------- Dated this the 23rd day of December, 2010 J U D G M E N T ~~~~~~~~~~~ The Second Appeal was filed by the plaintiff in O.S.568/1989 on the file of the Munsiff's Court, Ottappalam. The suit was filed seeking a decree for recovery of possession of the plaint schedule property on the basis of his title. Pending appeal, the appellant died. The defendant is none other than the son of the plaintiff. Late plaintiff contended that he had obtained the plaint schedule property under an oral lease and subsequently he purchased jenmam right by virtue of Ext.A1 purchase certificate issued from the Land Tribunal Sreekrishnapuram. The defendant contended that the property belonged to Thrikkadeeri Mana and under Ext.B1 partition it was set apart to the share of Purazhi Tharakan from whom he obtained the same by Ext.B3 assignment. After raising the issues, the parties were sent for trial. On the side of the plaintiff, PWs 1 to 4 were examined and Exts.A1 to A4 were marked. The defendant was examined as DW1 and Exts.B1 to B6 were marked. The trial court arrived at a finding that Ext.A1 R.S.A.No.980/2004 2 purchase certificate was obtained by Veeran, s/o. Krishnan and the plaintiff is Veeran, s/o. Raman. Discussing the evidence in detail, the trial court arrived at a finding that the plaintiff had not succeeded to establish his title over the plaint schedule property. Consequently, he was non suited. In appeal, as A.S.No.7/1993, the above judgment and decree was confirmed. Now the Second Appeal. 2. The following are the questions of law formulated in the appeal memorandum. “i) Whether on the facts and circumstances of the case and in the light of Ext.A4 and A1 documents and the evidence of PWs 1to 4 the courts below are justified in holding that the plaintiff has no valid title? ii) Whether the courts can held that the defendant has a more probable case than the plaintiff only on the light of Ext.B4? iii) Whether the courts below are legally justified in giving wide significance to Ext.B4 document? iv) Whether the courts below had properly considered the question of facts in its merit R.S.A.No.980/2004 3 and whether it is justified upon facts and circumstances of the case?” 3. On the death of the appellant, three of his children were impleaded as additional appellants 2 to 4. Now, even if, the case of the deceased appellant is taken into true, the additional appellants 2 to 4 are not entitled to a decree for recovery of possession, because on death of the original plaintiff the property would devolve upon the respondent also. So, no way the respondent could be evicted. It is submitted by the learned counsel for the appellant that the deceased appellant had executed a Will in favour of the additional appellants 2 to 4. The original Will itself was produced. However, I find that there is no mention in the Will about the plaint schedule properties. Further more, the execution of the Will is yet to be proved. 4. In the above circumstance, I find no reason to disturb the decree and judgment impugned. Consequently, the appeal is dismissed. The issue of title is left open. The additional appellants would be at liberty to establish their right, if any, obtained by virtue of the Will produced over the plaint schedule R.S.A.No.980/2004 4 properties and seek appropriate remedies in the event they have got any cause of action and the rights obtained by succession or Will. The original Will produced may be returned to the appellant. No order as to costs. (P.S.GOPINATHAN, JUDGE) ps