IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 RSA.No. 527 of 2011() --------------------- AS.238/2008 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.591/2007 of ADDL.MUNSIFF COURT, TVM .................... APPELLANT/APPELLANT/PLAINTIFF ----------------------------------------------------------- N.G.DAYANANDAN, S/O.NITHYANANDAN, HINDU, AGED 39 YEARS, PROPRIETOR, M/S.S.N.MOTORS AUTOMOBILE REPAIRING WORKSHOP BEARING REGISTRATION NO.0190-16740, SSI REGISTRATION SCHEME, NALANCHIRA, THIRUVANANTHAPURAM. BY ADV. SRI.J.HARIKUMAR RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------------------- 1. T.M.THOMAS, CHRISTIAN, AGED ABOUT 74 YEARS, THAYYIL, NEAR S.N.MOTORS, NALANCHIRA P.O., THIRUVANANTHAPURAM-695 015. 2. K.C.EAPEN, CHRISTIAN, AGED ABOUT 77 YEARS, KURUNTHOTTIKKAL HOUSE, PATTOMP.O., THIRUVANANTHAPURAM-695 004. 3. RAYAPPAN, HINDU, AGED ABOUT 67 YEARS, C/O.K.C.EAPEN, KRUNTHOTTIKAL VEEDU, NEAR MEDICAL COLLEGE P.O.,PATTOM, THIRUVANANTHAPURAM-695 004. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 527 OF 2011 =========================== Dated this the 11th day of July,2011 JUDGMENT Plaintiff in O.S.591/2007 on the file of Additional Munsiff Court, Thiruvananthapuram is the appellant. Defendants are the respondents. Appellant instituted the suit seeking a decree for permanent prohibitory injunction contending that plaint schedule property having an extent of 5 cents in R.S.No.455/13 with old survey No.702/3-2 of Kudappanakkunnu village belongs to him as per Ext.A3 settlement deed executed by his father and he has been in possession of the property conducting a motor workshop in the name and style M/s.S.N. Motors and respondents have no manner of right, title or possession to the property and they attempted to measure the plaint schedule property claiming as part of their property and on enquiry it appears that R.S.A.527/2011 2 O.S.15/1982 was instituted before Sub Court, Thiruvananthapuram wherein the father of the plaintiff was the fifth defendant and a decree was obtained in favour of the respondents, but it is only in respect of survey No.669 and not in respect of survey No.702 and therefore respondents are not entitled to claim any right in the plaint schedule property and they have no right to trespass into the property and therefore they are to be restrained by a permanent prohibitory injunction. Respondents 1 and 2 resisted the suit contending that O.S.15/1982 was instituted for specific performance of an agreement for sale executed by Satya Prakash and Saravthmajan the brothers of the father of the appellant, who was impleaded as the fifth defendant as he was found in possession of the property and that suit was resisted by him contending that he is entitled to be in possession of the property. The case was finally settled by the Division Bench of this court in A.F.A.83 of R.S.A.527/2011 3 1993 and the Division Bench directed the Sub Judge to appoint a Commission to ascertain whether the property covered by the agreement for sale is the plaint schedule property in O.S.15/1982. The learned Sub Judge on the report submitted by the Commissioner found that it is the same property and granted the decree and that was accepted by the Division Bench. It was anticipating a verdict in favour of respondents 1 and 2, the fifth defendant in that suit mischieviously created Ext.A3 settlement deed and appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PWs.1 and 2, Dws.1 and 2, Exts.A1 to A15, B1 to B7 and X1 to X4 dismissed the suit holding that plaint schedule property was the property agreed to be sold under the agreement and directed to be sold under the decree in O.S.15/1982 and in the light of Ext.B6 judgment, appellant is not entitled to the decree sought for. Appellant challenged the R.S.A.527/2011 4 judgment before District Court, Thiruvananthapuram in A.S.238/2008. Learned Additional District Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. The argument of the learned counsel is that courts below failed to appreciate the evidence in the proper perspective and should have found that the property covered under the agreement for sale, which was marked as Ext.A1 in O.S.15/1982, is the property in survey No.669 and not in Sy.No. 702, and the property settled in favour of the appellant by his father, the fifth defendant in O.S.15/1982, is in survey No.702 and therefore findings of the courts below that both the properties is one and the same is not correct. Learned counsel argued that Ext.A11 and A12 were not properly appreciated by the courts below and on the evidence it should R.S.A.527/2011 5 have been found that the fifth defendant had several properties and the property settled under Ext.A1 is not the subject matter of the suit in O.S.15/1982 under Ext.A3 and in such circumstances a decree for injunction should have been granted. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. The only question is whether the property claimed by the appellant under Ext.A3 is the same property which was agreed to be sold under Ext.A1 agreement in O.S.15/1982, for which a decree for specific performance of the agreement was passed and confirmed by this court in Ext.B6 judgment. As rightly found by the courts below though father of the appellant the fifth defendant in that suit was not an executant for the agreement for sale, as the property was claimed by the fifth defendant he was later impleaded and the actual dispute in the suit was whether the property covered under Ext.A1 R.S.A.527/2011 6 in that suit is the property belonging to the fifth defendant claimed by him or the property of the defendants 1 and 2 in that suit. As directed by the Division Bench of this court Sub Court appointed a Commission to identify the property. When the Commissioner has inspected to identify the property, fifth defendant, who is none other than the father of the appellant, raised the very same contention raised by the appellant herein that the property is not the subject matter of the agreement for sale and the property is in survey No.702 and not in Sy.No.669 and therefore his possession cannot be disturbed by the agreement for sale. The Commissioner found that the contention is not correct and the property claimed by the fifth defendant is the property in survey No.702 covered under Ext.A1 agreement for sale. That report was accepted by the Sub Court and was finally accepted by this court under Ext.B6 judgment. In the light of Ext.B6 judgment appellant cannot raise any claim R.S.A.527/2011 7 in respect of the said property, especially when Ext.A3 settlement deed was executed by the fifth defendant, during the pendency of the suit. Still the fifth defendant did not disclose the execution of Ext.A3 evidently to use it at a later stage. On the evidence courts below rightly found that appellant cannot claim right under Ext.A3 settlement deed. In such circumstances, I find no substantial question of law is involved in the appeal. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006