IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 RSA.No.271 of 2008 (G) ---------------------------- O.S. NO.230/01 OF MUNSIFF COURT, PALA A.S.NO.59/04 OF SUB COURT, PALA. ------------------ APPELLANTS/APPELLANTS/DEFENDANTS ------------------------------------------------- 1. JOSHY THOMAS, PROPRIETOR, THOMSON ELECTRONICS, CHERUPUSHPAM BUILDINGS, PALA TOWN, LALAM VILLAGE. 2. JOSEPH @ JOBISH, THENADIKULATHIL HOUSE, IDANADU KARA, VALLICHIRA VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT: RESPONDENT/PLAINTIFF ----------------------------------------------- THOMAS, THENADIKULATHIL, EDANADU KARA, VALLICHIRA VILLAGE, MEENACHIL TALUK. ADV. SRI.SHAJI THOMAS PORKKATTIL THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.271 of 2008 ------------------------------------------------ Dated this the 5th day of March, 2009 JUDGMENT This is RSA filed by the defendants in O.S.230/01 of Sub Court, Pala against the concurrent verdict passed against them by the courts below. 2. The suit has been brought by the respondent/plaintiff who is the father of the appellants/defendants inter alia on the allegations that item No.1 to 3 properties belong to him by virtue of Ext.A1 settlement deed; that he has reconstructed the building in item No.3 property and has been residing there; that on his permission, his sons/the appellants were also residing in the building in item No.3 property along with him; that for the past 5 to 6 years, the defendants and their mother (wife of the respondent) were R. S. A. No.271 of 2008 -2- trying to inflict tortures upon him; that they have caused damage to the building; that in October 1996 he executed a will in respect of a scheduled property bequeathing the same to the second defendant after his death; that in October 1997, first defendant and plaintiff's wife tried to administer poison to him and the second defendant started torturing him physically from the month of October, 2000 and hence, he cancelled the will; that on 16/06/01 the defendants and their mother with the help of their henchmen caught hold of the plaintiff and forcibly took him to the Mental Hospital at Kottayam and subjected him to injection of medicines, but by 3.00 a.m the next day he managed to escape from the hospital and reported the matter to the Pala Police, but due to influence from the defendants, the police did not register any case; that the R. S. A. No.271 of 2008 -3- original of Ext.A1 document in his favour is found to have been stolen when he came to his house on 17/06/01 and therefore, it is highly necessary to declare the title and possession of the plaintiff over the scheduled properties and to restrain the defendants by an order of injunction from causing any obstruction to the peaceful possession and enjoyment of the plaintiff or committing any sort of waste in the scheduled properties and if it is found that the defendants are residing in the building in the scheduled property they should be directed to vacate the same by a decree of mandatory injunction. 3. The appellants/defendants resisted the suit filing a written statement contending inter alia that themselves and their men are residing in the building in the schedule item No.3 property; that their father/the plaintiff R. S. A. No.271 of 2008 -4- is a drunkard and believer in black magic and has been squandering money for liquor, drugs and black magic; that their relatives intervened and made a family arrangement on 23/12/94 as per which plaint item No.3 property and the building therein was set apart to the share of the plaintiff and his wife Aniyamma Joseph and it was specified that after the life time of the plaintiff and his wife the above property would stand bequeathed to the second defendant that the remaining properties were also set apart to defendants 1 and 2; that the above family arrangement was chalked out at the mediation of the brothers of the plaintiff and the younger brother of the plaintiff's wife; that as per the above family arrangement, plaintiff executed a will in favour of the second defendant expressing his intention to give plaint item No.3 R. S. A. No.271 of 2008 -5- property and the building to the second defendant and the first defendant was also allowed to reside in the said building till he constructs a house of his own; that the building in plaint item No.3 was reconstructed utilising the money of the plaintiff's wife and the manpower of the defendants; that the alleged ill-treatment meted out to the plaintiff is false; that the plaintiff under the influence of liquor and drugs and upon blind belief in black magic tried to inflict bodily harm to the second defendant; that the plaintiff is suffering from mental infirmity and he views everybody with suspicion; that efforts were being made to bring back the plaintiff to normalcy under the advise of Priests; that the plaintiff was being taken for treatment with his full consent and it is incorrect to say that he was forcibly taken to R. S. A. No.271 of 2008 -6- the mental hospital and that the suit has to be dismissed. 4. The trial court raised necessary issues for trial and considering the evidence adduced at trial which consisted of oral evidence of PWs.1 and 2 and DWs.1 to 3 and documentary evidence Exts.A1 to A7 and B1 to B5 came to the conclusion that there is absolutely no reliable evidence tendered by defendants to substantiate their claim of family arrangement; that the plaintiff's wife who was cited and examined as DW2 who spoke of the family arrangement set up in the written statement stated in cross examination that the family arrangement was reduced to writing and was signed by the parties concerned and that the said document was with her at her residence and that the defendants could very well produce the said document if at all there R. S. A. No.271 of 2008 -7- is such a document and that the family arrangement set up is false especially when the brothers of the plaintiff and the younger brother of plaintiff's wife who is alleged to have mediated to arrive at such a settlement were not examined and that the plaintiff who has established his title over the scheduled properties is entitled to declaration of title and possession; that from the evidence as the defendants also are seen to be in occupation of the building situated in item No.3 property and the pleadings and evidence reveal that the relationship and intimacy between the plaintiff and defendants have been irretrievably broken and there is brutal quarrel between father and sons and it is not desirable to have a common residence for them; that the defendants have been in occupation of the building along with their mother and R. S. A. No.271 of 2008 -8- father on permission and that they are bound to vacate the building when the plaintiff who granted permission does not want the permission to continue and that to avoid further untoward incident the defendants are to vacate the building in item No.3 property and that plaintiff is entitled to a decree of mandatory injunction as against the defendants directing them to vacate the building in item No.3 property. Accordingly, the trial court decreed the suit. The appeal filed by the defendants before the first appellate court as A.S.59/04 was also dismissed confirming the decree and judgment of the trial court. Hence, this appeal against the concurrent verdicts by the defendants in the suit. 5. This RSA was admitted on the following substantial question of law:- “Were the courts below correct in R. S. A. No.271 of 2008 -9- granting a decree for mandatory injunction to vacate item No.3 property when possession is admitted by the plaintiff ?” 6. Heard counsel on both sides. 7. It is vehemently argued by the counsel for the appellants that the occupation by the appellants in the scheduled building in item No.3 property having been admitted, a suit for a decree of mandatory injunction is not maintainable, but recovery of possession should have been prayed for and that such a prayer having not been advanced, the courts below should have dismissed the suit and should not have granted a decree of mandatory injunction to the appellants to vacate the building. 8. A suit for eviction and recovery of possession of property which takes in also a residential building need be there only in the R. S. A. No.271 of 2008 -10- event of the defendants being in exclusive possession and occupation thereof. In the instant case, on the pleadings of the parties, it is evident that the defendants were residing with the plaintiff who is their father as also their mother in the building in item No.3 property belonging to the plaintiff/father on his permission. Defendants are all adult sons of the plaintiffs aged 31 and 24 respectively as on the date of filing of the plaint in 2001 and it is time for them to eke out their livelihood without depending on the father and harassing the father causing even bodily harm to him. The plaintiff who is also in occupation of the building need not seek for recovery of possession of the building from the defendants and the decree of mandatory injunction granted by the courts below directing the defendants to vacate the R. S. A. No.271 of 2008 -11- scheduled building in the fact situation available in the instant case, cannot be categorised as illegal or perverse as urged. Thus, I answer the substantial question of law raised in this RSA against the appellants and in favour of the respondent/plaintiff. The result is that this RSA is devoid of merit and deserves to be dismissed with costs. 9. In the result, I dismiss this RSA with costs to the respondent. K.P.BALACHANDRAN, JUDGE kns/- R. S. A. No.271 of 2008 -12- K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.271 of 2008 ------------------------------------------------ Dated this the 15th day of July, 2008 ORDER Office reports that notice issued to the respondent by speed post with acknowledgment due is returned with an endorsement on 20/06/08 to the effect that it is “refused” and a further endorsement on 26/06/08 to the effect that it is “not claimed”. The service is accepted as sufficient in the circumstances. Counsel for the appellants is heard. Admit on substantial question of law formulated as Sl. No.(ii) under para 9 in the memorandum of appeal. Post this R.S.A on 29/07/08. I.A.1519 of 2008 Counsel for the appellant submits that the respondent has filed E.P.47/08 in R. S. A. No.271 of 2008 -13- O.S.230/01 before the Munsiff's Court, Pala and that the appellants have entered appearance today in the said case and that unless there is a stay issued by this Court in execution of the decree, the appellant would be evicted from the scheduled building. Hence, issue interim stay for two weeks. K.P.BALACHANDRAN, JUDGE kns/-