IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 Ex.SA.No. 19 of 2008() ---------------------- EFA.6/2008 of PRINCIPAL SUB COURT,KOCHI OS.594/1996 of PRL.MUNSIFF COURT, KOCHI (E.A .300/98 IN E.FA 6/08) .................... APPELLANT ------------------- K.X. JOSEPH, AGED 59 YEARS, S/O. LATE XAVIER, RESIDING AT HOUSE XV/1573, KURISINGAL HOUSE, NAZRETH, JANATHA ROAD, RAMESWARAM VILLAGE, KOCHI TALUK. BY ADV. SRI.T.A.NARAYANAN NAIR SRI.SHIVSHANKAR RAO RESPONDENT(S): RESPONDENTS -------------------------- 1. KARMELI ALIAS BABY, D/O. AUGUSTINE, UNDER THE CARE OF KRISHNANKUTTY ALIAS KUNJUMON, RESIDING AT VELIPARAMBIL HOUSE, C.C XV/1162, STATUTE JUNCTION, RAMESWARAM VILLAGE, KOCHI TALUK. 2. T.H. SADIQUE, S/O. HASSAN, PAINANGADI PARAMBIL, PANAYAPPILLY, KOCHI-2. THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR,J. ................................................... EX.S.A. No. 19 of 2008 ................................................... DATED: 18-11-2008 JUDGMENT The appellant was the claimant in E.A. 300 of 1998 in E.P. 117 of 1998 in O.S. 594 of 1996. The said claim was filed under Order 21 Rules 10 and 11 of C.P.C. alleging that in execution of the ex parte decree for eviction passed in O.S. 594 of 1996, the appellant who was not a party to the decree was sought to be dispossessed. He, therefore sought an adjudication of his claim as against the decree holder who is the first respondent herein. Both the courts below rejected his application. Hence, this Second Appeal. 2. The facts which are either proved or admitted are the following:- An extent of 4.610 cents including the plaint schedule property admeasuring 4.416 cents belonged to one Xavier, the father of the appellant. The said Xavier EX.S.A. No. 19 of 2008 -:2:- sold 3 cents out of the said 7.610 cents to a stranger and was keeping the balance extent of 4.610 extent. Out of the said extent retained by him Xavier gifted 4 cents to Antony @ Santhosh the son of the appellant herein . Antony was then a minor and the appellant acted as his guardian. The Ist respondent herein who was the plaintiff in the suit was the former wife of the appellant/claimant. Antony @ Santhosh gifted the aforesaid 4 cents received by him from his grandfather to his mother namely the first respondent/plaintiff on 3-8-1991. On 20-3-1992 the plaintiff is said to have eloped with another man. On 24-3-1992 Antony @ Santhosh died. O.S. 9/1995 was a suit filed by the appellant/claimant against his former wife the first respondent herein before the Family Court, Ernakulam seeking a declaration of his title and for injunction restraining the first respondent herein from interfering with his possession . His claim was that he was in possession of the plaint schedule property as an heir of Antony @ Santhosh. The Family Court dismissed the said suit inter EX.S.A. No. 19 of 2008 -:3:- alia holding that the appellant/claimant cannot claim any right as an heir of Antony @ Santhosh. In the meanwhile, the first respondent/plaintiff instituted the present suit O.S. 594 of 1996 for eviction of the 2nd respondent herein from the plaint schedule property including the residential building thereon. The said suit was decreed ex parte. The appellant/claimant challenged the decree passed in the present suit by filing an appeal as A.S. 95 of 1998 before the Sub Court, Kochi which dismissed the appeal holding that since he was not a party to the decree he is not bound by the decree. A Second Appeal attempted by the appellant/claimant before this Court was also not successful. Thereafter, the first respondent put the decree in execution by filing E.P. 117/98. When the Amin deputed by the court visited the property the appellant resisted and filed the present application namely E.A. 300/98 presumably under Order 21 Rule 99 C.P.C. and contended that he was a stranger to the decree and he was the owner in possession of the property and was not liable EX.S.A. No. 19 of 2008 -:4:- to be dispossessed in execution of the decree . His application was dismissed by the Executing Court as per Order dated 14-2-2008. An appeal preferred by the appellant before the Sub Court, Kochi as E.F.A. 6 of 2008 was also dismissed. Hence this Ex. Second Appeal. 3. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- At a time when the 4 cents of land was gifted by the appellant's father to Antony @ Santhosh, S/o. the appellant., the said Antony was a minor and possession of the property was thus got by the appellant on his behalf. The appellant has thus been in possession of the property continuously and uninterruptedly from the year 1985 onwards. His possession was not disturbed by the gift executed by his son in favour of the first respondent /plaintiff on 3-8-1999. It may be true that the suit filed by the appellant as O.S. No. 9 of 1995 was dismissed by the Family Court with a finding that he cannot claim any right as the heir of his son. EX.S.A. No. 19 of 2008 -:5:- With regard to possession the Family Court found that both sides did not adduce any evidence. Thus it cannot be said that the Family Court had recognized the possession of the first respondent/plaintiff . The courts below were, accordingly, bound to consider the case of the appellant on the merits. 4. I am afraid that I cannot agree with the above submissions. Admittedly, the 4 cents of property was gifted by the appellant's father Xavier in favour Antony @ Santhosh in the year 1985. Antony @ Santhosh had gifted the property which he obtained in the year 1985 his mother who is none other than the former wife of the appellant. The said gift was on 3-8-1991 at a time when Antony @ Santhosh was a major. It is unfortunate that the donor son of the appellant survived only for a few months after executing the gift. But the plaintiff had in the meanwhile become the absolute owner of the property. Eventhough in O.S. 9 of 1995 filed by the appellant before the Family Court against EX.S.A. No. 19 of 2008 -:6:- the present plaintiff, the court held that he cannot claim any right as the heir of Antony @ Santhosh his prayer for declaration of title and for injunction against interfering with his alleged possession of the property was disallowed by the Family Court. The said judgment has become final. It is not open to the appellant to maintain that he is the absolute owner in possession of the property. His petition was rightly dismissed by the courts below. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions formulated in this memoradum of appeal do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated, this the 18th day of November 2008. Sd/-V.RAMKUMAR, Judge. ani/ EX.S.A. No. 19 of 2008 -:7:-