IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 RSA.No. 914 of 2010() --------------------- AS.27/2004 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.55/1998 of MUNSIFF COURT, ADOOR .................... APPELLANTS/RESPONDENTS 2 TO 6 AS THE LEGAL HEIRS OF 1ST RESPONDENT/PLAINTIFF: ---------------------------------------------------------------------- 1. RAJAMMA, W/O.LATE KRISHNA PILLAI KUNJUKRISHNA PILLAI, KOPPARA PACHICKAL KIZHAKKEPUTHEN VEEDU, AICKKADU MURI, KODUMON VILLAGE. 2. USHAKUMARI ALIAS UDAYAKUMARI, D/O.RAJAMMA, VILAVINAL PUTHEN VEEDU, BHAGAVATHIKUNNU PADINJARE KEEUKUZHI P.O. 3. UDAYA PRAKASH, S/O.KRISHNA PILLAI, KUNJUKRISHNA PILLAI, HINDU, PADINJETTEDATHU, PANNIVIZHA, ANANDAPPALLY, PATHANAMTHITTA. 4. JAYAPRAKASH, S/O.KRISHNA PILLAI KUNJUKRISHNA PILLAI, KOPPARA PADICKAL KIZHAKKEPUTHEN VEEDU, AICKKADU MURI, KODUMON VILLAGE. 5. ANITHA KUMARI, D/O.RAJAMMA, HINDU, KOPPARA PADICKAL KIZHAKKEPUTHEN VEEDU, AICKKADU MURI, KODUMON VILLAGE. BY ADV. SRI.K.MADHUSOODHANAN NAIR RESPONDENT(S)/APPELLANTS/DEFENDANTS: ------------------------------------ 1. NSS KARAYOGAM NO.1549, AIKKADU THEKKUBHAGOM AIKKADU MURI, KODUMON VILLAGE, REPRESENTED BY ITS PRESIDENT, RAMAKRISHNA PILLAI, S/O.NARAYANAN PILLAI, VADAKKEKARA PUTHEN VEEDU, AIKKADU MURI, KODUMON VILLAGE. R.S.A.NO.914/2010 2. GOPALA PILLAI, S/O.KOCHU KUNJU NAIR, RESIDING AT NADUVILA VEEDU, AICKKADU MURI, KODUMON VILLAGE. ADV. SRI.G.UNNIKRISHNAN FOR R1-2 SRI.K.SURESH KUMAR FOR R1-2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.914 OF 2010 ----------------------------------- Dated this the 27th day of October, 2010 J U D G M E N T The appellants are the legal heirs of the plaintiff in O.S.No.55 of 1988 on the file of the Munsiff Court, Adoor. Plaintiff in the above suit passed away during the pendency of the appeal before the court below, on which, the present appellants were impleaded as additional respondents in such appeal preferred by the respondents/defendants in the suit. Suit was one for declaration of title and injunction. Subject matter involved in the suit was one and half cents of property, and, admittedly, the plaintiff had executed a gift deed over that property in favour of the 1st defendant with a covenant that a building has to put up there for the office of the 1st defendant. However, later, as the 1st defendant failed to comply with the condition imposed under the gift, according to the plaintiff, he had cancelled the gift, and that all along he continued in R.S.A.NO.914 OF 2010 2 possession of that property was his case to claim the reliefs canvassed in the suit. Resisting the suit claim, the defendants filed a joint written statement, in which, contending that the gift had come into effect and they are in possession and enjoyment of the property, a counter claim over the suit property, which was scheduled in the written statement, was raised for a declaration that the cancellation deed executed by the plaintiff is void, and also for putting up boundaries on the three sides of the property scheduled in the written statement. The trial court, on the materials placed by both sides, held that both parties, the plaintiff and the defendants, are not entitled to the reliefs canvassed for and, accordingly, the suit and counter claim were dismissed. As against the dismissal of the counter claim, the defendants preferred an appeal, but, there was no further challenge by the plaintiff against the dismissal of his suit. In that appeal, as already stated on the death of the plaintiff, who was the respondent in that appeal, his legal heirs, the present appellants were impleaded as additional respondents. Re-appreciating the materials tendered, the lower appellate R.S.A.NO.914 OF 2010 3 court concluded that the gift by which the plaintiff had transferred the suit property, which, in fact, was scheduled in the written statement, to sustain the counter claim, had come into effect on its execution, and the cancellation deed later executed by the plaintiff revoking the gift was void. The decree for putting up the boundary canvassed by the defendants was also found sustainable, and, accordingly the counter claim raised by the defendants were upheld allowing the appeal. As against the decision so rendered by the lower appellate court, the appellants, the legal heirs of the plaintiff, has preferred this second appeal. 2. I heard the learned counsel for the appellants. It was submitted that after the death of the plaintiff, during the pendency of the appeal before the lower appellate court though his legal heirs/representatives were impleaded as additional respondents in such appeal, there was no effective prosecution on their behalf, and, according to the counsel, the appeal was disposed without hearing such respondents. The learned R.S.A.NO.914 OF 2010 4 counsel for the respondents, who have entered appearance pursuant to the notice issued on the delay petition, submitted that there was no appearance for the plaintiff/the respondent in the appeal, or by his legal representatives after they have been impleaded as additional respondents in such appeal. So far as considering the merit of the entertainability of the second appeal, I find whether there was appearance for the present appellants who were the additional respondent in the appeal, need not be gone into, as it is evident from the admitted facts that the appellants or their predecessor had not challenged the adverse decision rendered against them by the dismissal of the suit by the trial court. In the suit, a declaration was sought for against the present respondents setting forth a case that the gift executed by the plaintiff had not come into effect and, later, it was cancelled and the plaintiff continued in possession of the property. The adverse decision rendered by the trial court dismissing the suit was not challenged even by filing a cross objection when the defendants preferred an appeal against the dismissal of the counter claim. So much so, it is needless to R.S.A.NO.914 OF 2010 5 point out that the decision resulting in the dismissal of the suit is sealed with finality. The only question that was involved in the case was whether the gift executed in favour of the defendants by the plaintiff was valid. The finding entered by the lower appellate court on re-appreciating the materials that the gift deeds so executed is valid, in the given facts of the case, is a finding of fact, and in the present appeal, no substantial question of law is involved to receive it on the file of this Court. There is no merit in the appeal and, hence, it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.914 OF 2010 6