IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 RSA.No. 257 of 2008(E) ---------------------- AS.172/2006 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.2065/2002 of III ADDL.M.C.EKM (RENT CONTROL) .................... APPELLANT/PLAINTIFF --------------------------------------- VIJAKUMAR, S/O.SANDALAN, RESIDING AT KAVILMADAM PARAMBU, C.C.41/2069, ERNAKULAM VILLAGE KANAYANNUR TALUK, ERNAKULAM. BY ADV. SRI.C.J.JOY RESPONDENT(S): RESPONDENTS/DEFEDANTS ------------------------------------ 1. SUSHEELA CHANDU, W/O.CHANDU, EDACHIRAPPALLY HOUSE, SOCIETY ROAD, MARADU VILLAGE KANAYANNUR VILLAGE, PRESENTLY RESIDING AT KAVILMADAM PARAMBU, C.C.41/206,ERNAKULAM VIALLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. MALATHI W/O.LATE SUNDARAN, KAVILMADAM PARAMBU, C.C.41/22069, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 3. MANU, S/O LATE SUNDARAN [MINOR] REPRESENTED MALATHI [R3] DO.DO. ADV. SRI.R.LAKSHMI NARAYAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/11/2008, ALONG WITH RSA NO. 200 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ................................................... R.S.A. Nos. 257 and 200 of 2008 ................................................... DATED: 10-11-2008 JUDGMENT The common appellant in these Second Appeals is the plaintiff in O.S. 2065 of 2002 on the file of the III Addl. Munsiff's Court, Ernakulam and the defendant in O.S. 240 of 2003 on the file of the same Court. O.S. 2065 of 2002 was filed by the appellant seeking partition and separate possession of his share over one item of immovable property consisting of three cents of land together with a building thereon. O.S. 240 of 2003 was filed by the children of the 2nd defendant Susheela seeking a decree of mandatory injunction directing the appellant to vacate the building situated in the plaint schedule property. Parties belong to the R.S.A. Nos. 257 and 200 of 2008 -:2:- Kudumbi community following makkathayam system of inheritance. The common ancestor was one Santhalan whose wife was one Rugmini. As per the findings concurrently recorded by the courts below Santhalan and Rugmini had only one daughter namely Susheela whose husband was one Chandu. Susheela had six children who are the defendants in O. S. 240 of 2003 namely Sundaran, Santha, Baby Ravi, Babu, Ramesan and Bindu. The 4th defendant in O.S. 2065 of 2002 is Anu, S/o. of the first defendant. 2. The plaint schedule property admittedly belonged to Santhalan. After the birth of two children the appellant who was an orphan was taken and brought up in the house by Santhalan. The suit was for partition filed by the appellant alleging that he is the biological son of Santhalan and Rugmini. His claim that he is the biological son of Santhalan and Rugmini was vehemently resisted by Susheela and her children. R.S.A. Nos. 257 and 200 of 2008 -:3:- 3. On the side of the appellant there was only the interested testimony of the appellant as P.W.1. On the side of the contesting defendants apart from Susheela and her daughter, Santha, a neighbour by name Ratnavally was also examined. The courts below held that the claim of the appellant that he is the biological son of Santhalan and Rugmini is not true and that he was brought up as an orphan in the plaint schedule house. The stand taken by the contesting defendants that it was by virtue of the above circumstances that he was permitted to occupy the house in the plaint schedule property has been accepted by the courts below. If so, his claim for partition was rightly rejected. The claim of the contesting defendants for mandatory injunction was also rightly decreed. I, therefore, do not find any question of law, much less, any substantial question of law to justify the admission of these Second Appeals R.S.A. Nos. 257 and 200 of 2008 -:4:- under Sec. 100 read with Order 42 Rule 1 C.P.C. The questions of law formulated in the memoranda of appeal also do not arise for determination in these appeals which are accordingly dismissed in limine. I place on record the submission made on behalf of the respondent that in case the appellant vacates the plaint schedule building within a reasonable time they are willing to pay a sum of Rs. 1,00,000/- as he was brought up an orphan in that house. 4. The learned counsel appearing for the appellant on the other hand submitted that his only daughter is studying in the XI standard and prayed for two years' time so that he can vacate the building after the completion of the XII standard of his daughter. Eventhough the learned counsel for the respondents was not agreeable to the grant of two years time, having regard to the facts and circumstances of the case, I am inclined to grant time to the appellant till R.S.A. Nos. 257 and 200 of 2008 -:5:- the end of May 2010 provided the appellant files an affidavit before the executing court within three weeks from today undertaking to vacate the building on or before 31-05-2010 and also that he shall not induct any strangers in the building and shall not commit any act of waste thereon until he hands over vacant possession of the property. Dated this the 10th day of November 2008. Sd/- V.RAMKUMAR, Judge. ani/ /true copy/