IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 SA.NO. 652 OF 1995(C) {AS.60/1994 OF THE DISTRICT COURT, PALAKKAD IN OS.456/1989 OF PRINCIPAL SUB COURT, PALAKKAD} .................... APPELLANT(S)/APPELLANT/PLAINTIFF: VELU, S/O.PAZHANIMALA, RESIDING AT MARUTHADIKALAM HOUSE, KARUMANKADU, THATHAMANGALAM, CHITTUR TALUK, PALAKKAD. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH RESPONDENT(S)/LEGAL REPRESENTATIVES OF THE RESPONDENT/ DEFENDANT: 1. AMMUKUTTY 2. PREMALATHA 3. ARUNDHATHI 4. SAIRANDHARI 5. SAUDAMINI THE FIRST RESPONDENT IS THE WIDOW AND RESPONDENTS 2 TO 5 ARE THE CHILDREN OF DECEASED VELAYUDHAN. THE RESPONDENTS ARE RESIDING AT ERANDATH HOUSE, OLASSERI AMSOM AND DESOM, KODUMBU VILLAGE, PALAKKAD TALUK. ADV. SRI.K.RAMESH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN ---------------------------------------- S.A.No.652 of 1995 ----------------------------------------- Dated this the 30th day of August, 2010 JUDGMENT The second appeal is directed against the concurrent decision rendered by the courts below, non-suiting the plaintiff/appellant in a suit for injunction. The trial court, after meticulous appreciation of the pleadings and evidence let in the case, found no merit in the relief canvassed by the plaintiff for a decree of injunction and non-suited him. The first appellate court, at the admission stage, after considering the grounds raised in the appeal to impeach the correctness of the dismissal of the suit, assailed by the plaintiff, disposed of the appeal dismissing it in limine. Impeaching the legality and correctness of the dismissal of the appeal rendered by the first appellate court, upholding the dismissal of the suit by the trial S.A.No.652 of 1995 :: 2 :: court, the second appeal is preferred by the plaintiff. 2. I heard the counsel on both sides. 3. Admittedly, the plaint property originally belonged to the wife of the plaintiff viz., Kamalakshy. The defendant in the suit is her brother. Plaintiff laid the suit setting forth a case that his wife Kamalakshy had executed a gift deed in favour of his father, Pazhanimala, and on his death along with his brothers, he has obtained tile and possession over the property. Alleging threat of trespass and obstruction in carrying out the agricultural operations in the property by the defendant, a decree of injunction against him was applied for. The defendant resisted the suit claim contending that the gift deed executed by Kamalakshy was never accepted and acted upon by Pazhanimala, the father of the plaintiff. It was his further case that the plaint schedule properties with other S.A.No.652 of 1995 :: 3 :: items belonged to his father and his brother Ramakrishnan. After the death of his father, Ext.B1 family agreement was entered into by the defendant with his sister, (the wife of the plaintiff) by which the plaint property was allotted in favour of the defendant, was his case. While executing Ext.B1 agreement, previous execution of Ext.A1 gift in favour of the father- in-law, which has not been accepted and acted upon, was taken into account and the title of the suit property allotted to the defendant was indemnified, in the event of any claim raised by the brothers of the plaintiff. The family agreement (Ext.B1) provided for payment of Rs.1,85,000/- to Kamalakshy, wife of plaintiff, towards her share in the family property. Ever since Ext.B1 family agreement, he continues in possession and enjoyment of the plaint property was the case of the defendant. On the pleadings of the parties, as stated above, and the evidence S.A.No.652 of 1995 :: 4 :: let in by both sides, the court below accepted the contentions of the defendant that Ext.A1 gift deed was not acted upon and the plaintiff has not established his claim for a decree of injunction against the defendant. The first appellate court has confirmed the finding so entered by the trial court. 4. The main thrust of argument canvassed before me to challenge the concurrent finding entered by the two courts below is built up on the premise that acceptance of a gift deed, once its execution is established, has to be presumed, in the absence of concrete and convincing evidence, refuting such acceptance by the donee. Whatever be the general principles applicable with reference to the acceptance of the gift deed, in the present case, the suit being only for an injunction, the question to be considered is whether the plaintiff retained possession of the plaint schedule property as and when he filed S.A.No.652 of 1995 :: 5 :: the suit seeking the relief canvassed in the suit. The gift deed, at the most, can be looked into only for the purpose of showing that his possession is traced on the basis of title. Even assuming that Ext.A1 gift was accepted by the donee, his father, unless and until the plaintiff establishes his possession over the suit property, he will not be entitled to a decree of injunction. What is seen from the materials is that the plaintiff has not produced the original of the gift deed, but only a certified copy. He has suppressed Ext.B1 agreement entered into between his wife and the defendant. It has also come out that he was an attesting witness in that registered document. No material to show that the plaintiff had remitted any revenue charges over the suit property, after the execution of Ext.A1 gift deed, was produced before the court even to draw an inference that at some point of time preceding the suit, he had possession and S.A.No.652 of 1995 :: 6 :: enjoyment of the property. On the contrary, the defendant produced the receipts showing payment of revenue charges over the property. It has also come out that the wife of the plaintiff had earlier instituted a suit as O.S.No.134/88 for partition of the properties in which the plaint property was also included as one of the items. In that suit, she had obtained an order of injunction against the present defendant, her brother, in respect of the plaint property. Ext.B1 agreement entered by the defendant with his sister, the plaintiff in the suit, contained provision for providing her share value in the family property. That sum being deposited before the court by the defendant, the suit O.S.No.134/88 had been dismissed. It was after dismissal of that suit, in which the plaint property was one of the items, the present suit had been instituted by the appellant, none other than the husband of Kamalakshy, the plaintiff in S.A.No.652 of 1995 :: 7 :: O.S.No.134/88. Evidently, Kamalakshy had ignored Ext.A1 gift deed, which she had executed in favour of Pazhanimala, the father of her husband, when she filed the suit for partition. Plaintiff in the suit, her husband, could not be expected to claim ignorance as to the suit earlier filed by his wife which had ended in dismissal on deposit of share value by the defendant, brother of Kamalakshy. Considering all those aspects, the trial court found that there was material suppression on the part of the plaintiff and also total paucity of evidence in establishing the claim of possession canvassed by him over the suit property to sustain the decree of injunction applied for. Other than producing a certified copy of Ext.A1 gift deed, and also the interested testimony of the plaintiff as PW.1, no material worth mentioning was produced by the plaintiff to prove his claim over the suit property. When the materials tendered by the defendant in the back S.A.No.652 of 1995 :: 8 :: drop of the the facts and circumstances disclosed thereby indicated that possession of the property, at least, from the date of Ext.B1 agreement continued with him, the dismissal of the suit holding that the plaintiff has not established his possession over the property is unassailable. There is no merit in the appeal, and it is dismissed. Considering the the facts and circumstances, both sides are directed to suffer their respective cost. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.