IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 RSA.No. 946 of 2008(D) --------------------- AS.185/2004 of SUB COURT,NEYYATTINKARA OS.75/2003 of I ADDL.MUNSIFF'S COURT, NEYYATTINKARA .................... APPELLANTS/APPELLANTS 2,3,&4/DEFENDANTS 2,7,&8. --------------------------------------------------------------------------------- 1. MADHUSOODANAN, S/O.DIVAKARAN, ATHIMOODU MEKKETHATTU VEEDU,ARUMANNOOR DESOM. 2. LATHAKUMARI, D/O.SARASAMMA, ATHIMMOODU MEKKETHATTU VEEDU, ARUMANNOOR DESOM. 3. USHAKUMARI, D/O.SARASAMMA, ATHIMMODU MEKKETHATTU VEEDU, ARUMANNOOR DESOM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 3 to 6,9 &10 ------------------------------------------------------------------------------------------------------- 1. SUDHAKARAN, S/O.MADHAVAN,PANCHAVADI, NEYYATTINKARA P.O.,POOVAR ROAD, NEAR NEYYATTINKARA BUS STAND, KADAVATTARAM DESOM,NEYYATTINKARA VILLAGE. 2. INDIRA BAI, D/O.BHAVANI,ATHIMOODU KATTANVILA VEEDU,POOVAR P.O., ARUMANOORTHURA DESOM THIRUPURAM VILLAGE,NEYYATTINKARA TALUK. 3. YESODHARAN,S/O.DIVAKARAN, ATHIMOODU KATTANVILA VEEDU,POOVAR P.O., ARUMANOORTHURA DESOM,THIRUPURAM VILLAGE, NEYYATTINKARA TALUK. 4. SIVA RAJAN, S/O.DIVAKARAN, ATHIMOODU KATTANVILA VEEDU,POOVAR P.O., ARUMANOORTHURA DESOM,THIRUPURAM VILLAGE, NEYYATTINKARA TALUK. R.S.A. NO. 946/2008 :2: 5. JAYAPANA,S/O.DIVAKARAN, ATHIMOODU KATTANVILA VEEDU,POOVAR P.O., ARUMANOORTHURA DESOM,THIRUPURAM VILLAGE, NEYYATTINKARA TALUK. 6. SURESH,S/O.DIVAKARAN, ATHIMOODU KATTANVILA VEEDU,POOVAR P.O., ARUMANOORTHURA DESOM,THIRUPURAM VILLAGE, NEYYATTINKARA TALUK. 7. AMBIKA AILAS AMBI, D/O.SARASAMMA, ATHIMOODU KATTANVILA VEEDU,POOVAR P.O., ARUMANOORTHURA DESOM,THIRUPURAM VILLAGE, NEYYATTINKARA TALUK. 8. RAMANI KUMARAN, W/O.SIVARAJAN, MINNAL ZOOR, POST BOX NO.149, KUWAIT FROM ATHIMOODU VEEDU, ARUMANOOR DESOM,THIRUPURAM VILLAGE, NEYYATTINKARA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 946 of 2008 ========================== Dated this the 23rd day of October, 2008. JUDGMENT Defendants 2, 7 and 8 in O.S. No. 75 of 2003 on the file of the II Additional Munsiff's Court, Neyyattinkara are the appellants in this Second Appeal. The said suit was one for perpetual injunction restraining the defendants from trespassing upon the plaint B Schedule property which is half of the plaint A schedule property having a total extent of 5.25 Ares corresponding to 12.96 cents. 2. The facts which have been concurrently found by the courts below are as follows:- The plaint A schedule property was in the possession of Valli Panchami, the mother of R Madhavan and R Divakaran pursuant to Ext.B65 mortgage of the year 1080 M.E. The said Valli Panchami died and her right devolved upon her sons Madhavan and Divakaran referred to above. Ext.B65 mortgage has become time barred and Panchami's possession of the property devolved on her sons. One Sankaran Nanan filed a suit for partition as R.S.A. No. 946/2008 : 2: O.S. No. 550/1976. Madhavan and Divakaran were defendants 38 and 39 in the said suit. Pending suit, Divakaran died on 07.12.1997 and his legal representatives were impleaded as defendants 65 to 67. Defendants 65 who was the widow of Madhavan also subsequently died and her rights devolved upon the plaintiffs. Divakaran had executed Ext.A1 registered mortgage dated 13.07.1980 in favour of Madhavan for a period of two years. After the execution of the said mortgage, Madhavan was in exclusive possession of the plaint A Schedule property. On 12.12.1980, a preliminary decree was passed in O.S. No. 550 of 1976 which was followed by a final decree on 31.01.1986 . As per the final decree, plot No. 31 in Ext.C1(a) plan was allotted to Madhavan and the legal representatives of Divakaran. This property is none other than the 12.960 cents of the mortgaged property which their mother Panchami had obtained under Ext.B65 mortgage. Neither Divakaran nor the defendants redeemed Ext.A1 mortgage dated 13.07.1970 which has now become time barred. It was on the basis of the possession of the entire plaint A schedule property pursuant to R.S.A. No. 946/2008 : 3: Ext.A1 mortgage that the plaintiffs instituted the suit. 3. The contention of the defendants that the properties are different and that while the plaint schedule property is comprised in Survey No. 181/8 of Thirupuram village, the property which was allotted to defendants 38 and 39 was comprised in Survey No. 182/1, was specifically considered by both the courts to hold that notwithstanding the difference in the survey number, the property which was actually allotted was the property which their mother Panchami obtained under Ext.B65 mortgage. The contention of the defendant that O.S. No. 550 of 1976 would operate as resjudicata, was also repelled by the court below and according to me rightly since that was only a suit for partition and the rights under Ext.B65 mortgage or Ext.A1 mortgage were not in issue in that suit. Since the defendants or their predecessor Divakaran did not care to redeem Ext.A1 mortgage, the property was in the exclusive possession of the legal heirs of Madhavan namely the plaintiffs. The contention that Ext.A1 was a sham and void document, was also repelled by the courts below. In these circumstances, the decree for injunction granted R.S.A. No. 946/2008 : 4: in respect of the plaint B schedule property which is the half portion of the plaint A schedule property also cannot be faulted. I do not find any question of law, much less substantial question of law so as to justify interference under Section 100 r/w Order 42 Rule 1 C.P.C. This Second Appeal is accordingly dismissed in limine. Dated this the 23rd day of October, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. No. 946/2008 : 5: