IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 RSA.No. 735 of 2011() --------------------- AS.129/2009 of DISTRICT COURT, PATHANAMTHITTA OS.191/2005 of MUSNIFF COURT,ADOOR .................... APPELLANT. ------------------------------ SAJAN, S/O.CHELLAPPAN NAIR, SATHYALAYAM, ARUKALICKAL, KIZHAKKUM MURI, EZHAMKULAM VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): RESPONDENTS/RESPONDENTS/PLAINTIFFS. -------------------------------------------------- 1. NARAYANAN NAIR CHELLAPPAN NAIR, S/O.NARAYANAN NAIR, SATHYALAYAM, ARUKALICKAL, KIZHAKKUM MURI, EZHAMKULAM VILLAGE, PATHANAMTHITTA DISTRICT. 2. CHELLAPPAN NAIR SAJEEVAN, S/O.CHELLAPPAN NAIR, SATHYALAYAM, ARUKALICKAL, KIZHAKKUM MURI, EZHAMKULAM VILLAGE, PATHANAMTHITTA DISTRICT. PIN-695 543. ADV. SRI. K.SHAJ FOR R2 SRI.SAJJU.S FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.735 of 2011 ............................................ DATED THIS THE 17th DAY OF AUGUST, 2011 JUDGMENT Defendant in O.S.191 of 2005 on the file of Munsiff Court, Adoor is the appellant. Respondents are the plaintiffs. First respondent is the father and second respondent and appellant are his children. Appellant is the eldest son. The plaint schedule property admittedly originally belonged to the father. Under Ext.A1 partition deed, it was alloted to the second respondent with the life interest of the first appellant. The suit was originally filed for permanent prohibitory injunction. It was subsequently converted into a suit for mandatory injunction directing the respondent to vacate the plaint schedule property contending that appellant has no right over the plaint schedule property. Appellant resisted the suit contending that he resides in the building in item No.1 along with his wife and children on the basis of an oral understanding between the respondents and appellant at the time of executing Ext.A1 partition deed. It was contended that the intention of the respondents is to evict the appellant and rsa 735/2011 2 his family members by obtaining a decree and the respondents owe Rs.2,45,000/- to the appellant and it was agreed by the respondents that they would repay the amount at the time of constructing the building in the plaint schedule property and appellant and the family members could reside in the building till repayment is effected. 2. Learned Munsiff on the evidence found that plaint schedule properties belonged to the respondents and under Ext.A1, first respondent has life interest and the property belonged to second respondent, the younger son of first respondent and appellant has no manner of right over the building. On evidence the learned Munsiff found that appellant has no right to continue his residence in the plaint schedule building and therefore granted a decree directing the appellant to vacate the plaint schedule building and a permanent prohibitory injunction restraining him from interfering with the peaceful possession of the plaint schedule property. Appellant filed an appeal before District Court, Pathanamthitta in A.S.129 of 2009. Learned District Judge on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the rsa 735/2011 3 appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant and respondents who appeared on a notice issued before admission were heard. As the learned counsel appearing for appellant submitted that the appellant is prepared to settle the dispute, on his request, opportunity was granted to settle the dispute in the Adalath to be conducted at the Legal Service Authority, Adoor. It is submitted that the attempt was futile, learned counsel appearing for appellant and respondents were thereafter heard. 4. It cannot be disputed that under Ext.A1 partition deed, the plaint schedule property absolutely belong to second respondent, with life interest of the first respondent. Though appellant raised a contention that respondents owe Rs.2,45,000/- to him and till that amount is paid he is entitled to continue to reside in the building with the family, on the evidence, trial court and first appellate court found that the said contention is not correct. That factual finding which was rendered by the courts below based on the evidence. It cannot be interfered in exercise of the powers under Section 100 of Code of Civil Procedure. rsa 735/2011 4 5. When the appellant is not having any right in the plaint schedule building, the decree for mandatory and prohibitory injunction granted by the trial court as confirmed by first appellate court is perfectly legal and correct. As no substantial question of law is involved, appeal can only be dismissed. Learned counsel appearing for appellant then submitted that as the appellant with his family are residing in the building, reasonable time of six months may be granted to surrender vacant possession of the building. Considering the fact that appellant with his family have been residing in the plaint schedule building, appellant is granted six months' time to surrender vacant possession of the building on condition of filing an affidavit before the executing court within two weeks from today, unconditionally undertaking to surrender vacant possession of the building on the expiry of six months from today. If no affidavit is filed, executing court to proceed with the execution. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk