IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 RSA.No. 413 of 2010() --------------------- AS.88/2006 of PRL.S.C.,THALASSERY OS.69/2002 of PRL.M.C.,KANNUR .................... APPELLANT/PLAINTIFF --------------------------------------- KELOTH KAITHERI EDATHIL UDAYA SANKAR, S/O. RUGMINI AMMA, AGED 44 YEARS, KRISHNAPURAM, KUTTIATTOOR POST, VIA. MAYYIL, KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): DEFENDANTS ------------------------- 1. K.K.ROHINI AMMA, W/O. LATE GOVINDAN NAMBIAR, AGED 73 YEARS, SREE VILAS, KOODALI AMSOM DESOM, KANNUR DISTRICT. 2. K.KCHANDRASENAN NAMBIAR, S/O.GOVINDAN NAMBIAR, KOLOLAM, P.O.EDAYANNUR, KANNUR DISTRICT. 3. K.K.SREENIVASAN NAMBIAR, S/O. GOVINDAN NAMBIAR, AGED 57 YEARS, KOLOLAM, P.O.EDAYANNUR, KANNUR DISTRICT. 4. GEETHANANDAN NAMBIAR, S/O GOVINDAN NAMBIAR, TEACHER, AGED 55 YEARS, KOODALI AMSOM. ADV. SRI.K.V.SOHAN FOR R1 TO 4 SMT.SREEJA SOHAN.K. FOR R1 TO 4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.413 OF 2010 -------------------------------- Dated this the 17th day of September 2010 JUDGMENT Plaintiff in a suit for injunction nonsuited by the trial court has filed this appeal after that adverse decision was confirmed by the first appellate court dismissing his appeal. He claimed a decree of injunction over the plaint schedule property on the basis of Ext.A1 gift deed executed by his mother. Admittedly, there was a suit for partition earlier as between the donor, his mother, and the respondents whereunder a final decree was passed with a plan showing the allotment made to the respective sharers. Simultaneously, with the present suit, it has come out, the defendants have filed another suit for injunction against the mother of the plaintiff which too related to the very same subject matter involved in the present suit. Unfortunately, the two suits were tried separately by the same court ignoring the fact that though the parties in such suits were different since the question arising for adjudication was common a joint trial was more advisable. Whatever that be, the suit filed by the defendant against the mother of the plaintiff was decreed, and it is not disputed that the decision rendered thereof has become conclusive and final. Ext.A1 gift deed executed in favour of the plaintiff was earlier in point of time before the institution of the R.S.A No.413 OF 2010 - 2 - suit against the mother of plaintiff by the defendants, but, dispute involved in both the suits was common. Ignoring the final decree in the previous suit and the allotments made thereunder, it is seen, producing the preliminary decree, Ext.A15, and setting forth a case that the determination made under the preliminary decree would indicate that the mother of the plaintiff had right over the property covered by Ext.A1, the present suit was laid giving more emphasis to the boundaries of the properties described under that deed. Since the title of the plaintiff was disputed by the defendants in the present suit, an issue was also cast as to whether the plaintiff has title to sustain the decree of injunction applied for. On the materials placed, both the courts have concurrently found that the plaintiff has failed to establish title over the property and further that the property scheduled in the plaint formed part of property alloted to the defendants in the previous partition suit as covered by plot G in Ext.B6 plan prepared in the final decree proceedings. It was also noticed that in the suit filed by the defendants against the mother of the plaintiff, decree of injunction was granted in favour of the defendants in relation to plot G covered by Ext.B6 plan. The evidence of the commissioner, DW1, who had conducted a local R.S.A No.413 OF 2010 - 3 - inspection and prepared a report and plan in the suit filed by the defendants against the mother of the plaintiff that the property claimed by the plaintiff formed part of plot G in Ext.B6 and that is the property covered by the present suit was accepted by the trial court to conclude that the plaintiff failed to prove not only title but also possession to claim the injunction canvassed in the suit. On a reappreciation of the materials tendered in the case, the lower appellate court has also approved the conclusion drawn by the trial court which resulted in the confirmation of the decree dismissing the suit. Having regard to the concurrent finding so entered against the appellant/plaintiff by both the courts below, the learned counsel for the appellant confined his submissions for seeking a reservation that the decree impugned should not stand in the way of the appellant in establishing his legal rights over the property on the basis of his title though in the suit an issue had been passed on the question of his title as well. There was no discussion with respect to the title of the plaintiff over the suit property, and, in fact, a finding thereof has not been entered into by the trial court or the appellate court is the submission of the counsel to seek the reservation sought as above. I cannot agree with the submission made by the counsel that no finding has been R.S.A No.413 OF 2010 - 4 - entered into on the question of title of the plaintiff over the suit property. Though the suit was one for injunction alone, on the disputed question arising for adjudication, in the light of the contentions raised by the defendants disputing the title of the plaintiff over the suit property, not only an issue was raised but both parties let in evidence to substantiate their rival claim of title over the property. The best piece of evidence that should have been produced to shed light on that disputed question was the final decree passed in the previous suit between the mother of the plaintiff and also the defendants. But, both sides did not produce a copy of that final decree. The defendants produced only a plan purported to have been prepared in the final decree proceedings by the advocate commissioner for making the allotment. But, as there is no dispute that a final decree had been passed in the previous suit, it is incumbent upon the plaintiff, in the nature of the disputes involved in the suit, to produce the copy of the final decree when the suit claim for injunction canvassed by him could be sustained only on proving her title over the property. That being not done, it is too late to seek for a reservation to redetermine the question of title in a fresh round of litigation, and that cannot be permitted to. Plaintiff has miserably R.S.A No.413 OF 2010 - 5 - failed to prove the relief canvassed in the suit by proving his title over the property in respect of which injunction was applied for. Concurrent decision rendered against the plaintiff by both the courts in the given facts and circumstances of the case is unassailable. There is no merit in the appeal, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv