IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 SA.No. 319 of 1997(D) ------------------------------- AS.149/1990 of SUB COURT, TIRUR OS.172/1996 of MUNSIFF COURT, TIRUR .................... APPELLANT: ( RESPONDENTS 2 TO 6 AND 8 IN AS. 149/90 DEFENDANTS ------------------- 4 TO 8 AND NO PARTY) 1. POTTAMMAL VAKKAYIL MAMMALI HAJI'S CHILDRAN UMMAKYA UMMA, W/O. KOORIPPARAMBIL RAYANKUTTY HAJI, RESIDING AT MOOCHIKKAL, KATTIPPARUTHI AMSOM DESOM, TIRUR TALUK. 2. KATHIYA UMMA, W/O. ATHANIKKKAL KUNHEETHU, RESIDING AT EZHUVATHIRUTHY AMSOM DESOM, PONNANI TALUK. 3. IYYACHUMMA, W/O. VANIYAMTHODI KUNHIMUHAMMED, RESIDING AT ATHAVANAD AMSOM DESOM TIRUR TALUK. 4. SUBAIDA, W/O. KORATH ILLATH VALAPPIL YAHU, RESIDING AT KUTTIPPURAM AMSOM KOLAKKAD DESOM, TIRUR TALUK. 5. ALEEMA, W/O. CHEMBRA ABDULLAKUTTY, RESIDING AT ANANTHAVOOR AMSOM KONTHALLUR DESOM, TIRUR TALUK. 6. BEEVU UMMA, W/O. POTTAMMAL VAKKAYIL MAMMALI, RESIDING AT NADUVATTAM AMSOM, PAZHUR DESOM, TIRUR TALUK. BY ADV. SRI.T.KRISHNANUNNI SA. NO.319/1997 RESPONDENTS: (APPELLANTS AND RESPONDENTS 7 AND 9 IN AS. 149 /90 ---------------------- DEFENDANTS 1 TO 3, 9 AND NO PARTY) 1. POTTAMMAL VAKKAYIL MAMMALI HAJI'S CHILDREN MUHAMMED, NADUVATTAM AMSOM, CHELLUR DESOM, TIRUR TALUK. 2. MOIDEENKUTTY, RESIDING AT DO. DO. 3. USSAN, RESIDING AT DO. DO. 4. EANTHEEN, S/O. POTTAMMAL VAKKAYIL MAMMALI HAJI, RESIDING AT NADUVATTAM AMSOM AND PAZHUR DESOM, TIRUR TALUK. 5. KUNHIPATHUMMA, D/O. THIRUNAVAYAKKALATHIL USSANKUTTY, RESIDING AT NADUVATTAM AMSOM PUZHUR DESOM, TIRUR TALUK. BY ADV. SRI.K.RAMACHANDRAN - R1, R2 , R3 & R5 SRI.SAJU.S.A THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO.319 OF 1997 =========================== Dated this the 16th day of January, 2008 JUDGMENT Defendants 4 to 8 being the second wife and children and legal heirs of original plaintiff filed this appeal challenging the judgment of the first appellate court reversing the judgment of Munsiff, Tirur in O.S.172/1986. Defendants 1 to 3 are the children of plaintiff in his second wife. 6th appellant was not a party to the suit and found with other appellant as one of the legal heirs of second Plaintiff. Plaintiff instituted the suit seeking a decree for injunction contending that though under Ext.A1 settlement deed he had settled the property to the share of respondents 1 to 3 when they were minors, subsequently under Ext.A2, it was cancelled and plaintiff has been in possession of the property throughout and as delivery of possession was not handed over plaintiff continued to be in possession and S.A.319/1997 2 defendants have no right or possession to the property. A decree for permanent prohibitory injunction was sought for alleging trespass. Respondents 1 to 3 in the written statement disputed the claim contending that Ext.A1 is a gift deed which was accepted by the donor himself for the minor donees and possession of the donor thereafter was only in his capacity as the guardian of the minor donees and subsequently he is not entitled to execute Ext.A2 cancellation deed or claim a decree for injunction. Respondents contended that they are in possession of the property and plaintiff is not in possession of the property. Defendants 4 to 9 did not file any written statement. 2. Learned Munsiff on the evidence of Pws.1 to 3, DW1 and Exts.A1 to A4 and Exts.B1 to B6 granted a decree for injunction holding that even though Ext.A1 settlement deed was executed, it was cancelled under Ext.A2 and plaintiff established his possession of the plaint schedule property and S.A.319/1997 3 defendants are not entitled to trespass into the property. Defendants 1 to 3 challenged that judgment before Sub Court, Tirur in A.S.149/1990. Learned Sub Judge on reappreciation of evidence reversed the findings of learned Munsiff and allowed the appeal, set aside the judgment of the trial court and dismissed the suit. It is challenged in the second appeal. 3. Learned senior counsel appearing for appellant was heard. 4. Learned senior counsel argued that first appellate court was not justified in reversing the findings of the trial court and though Ext.A1 was executed the donees did not obtain delivery of possession and so Ext.A2 cancellation deed is valid and being a suit for injunction on establishing possession, plaintiff is entitled to the decree for injunction granted by the trial court and first appellate court should not have reversed that finding. 5. On hearing the learned counsel, I find no S.A.319/1997 4 substantial question of law is involved in the appeal. 6. Being a suit for injunction, the question is only with regard to the possession of plaint schedule property. First appellate court considered the effect of Ext.A1 gift deed executed by plaintiff in favour of his children respondents 1 to 3. At the time of execution of Ext.A1, the donees respondents 1 to 3 were minors. The donor father being the guardian is competent to accept the gift on their behalf. Therefore possession of the plaintiff subsequent to Ext.A1 could only be in his capacity as the guardian of the donees and if so subsequently the gift deed cannot be cancelled by the plaintiff under Ext.A2. First appellate court on appreciating the evidence found that plaintiff was not in possession of the property and Exts.B1 to B3 establish that the plaintiff made an unsuccessful attempt to defeat the rights of respondents 1 to 3 by executing transfering the property in favour of his son-in-law and S.A.319/1997 5 respondents 1 to 3 are in possession of the property. That factual finding of the first appellate court is based on the evidence. It cannot be interfered in exercise of the powers of this court under section 100 of Code of Civil Procedure. Finding of fact by the first appellate court shall be the final. The finding of fact was arrived at on a proper appreciation of evidence. Hence appeal is dismissed in limine. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A..NO.319 /97 --------------------- JUDGMENT 16TH JANUARY,2008