IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 RSA.No. 510 of 2008() --------------------- AS.192/2002 of SUB COURT,NEYYATTINKARA OS.613/1999 of PRL.M.C.,NEYYATTINKARA .................... APPELLANTS/APPELLANTS 1 & 2/DEFENDANTS 1 & 2 1. V.JAYACHANDRAN, S/O.VELAYUDHA PANICKER, MOOKKANNOOR MELE PUTHEN VEEDU, EDAIKKODU DESOM, PALLICHAL VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM DIST. 2. V.SIVARAJENDRAN, PLANKANDATHALA MELE PUTHEN VEEDU, PALLICHAL VILLAGE, EDAIKKODU DESOM, NEYYATTINKARA, THIRUVANANTHAPUARAM DIST. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENT(S): RESPONDENTS & 3RD APPELLANT 1. DIVAKARA PANICKER, S/O.VELAYUDHA PANICKER, KUMAR SADANAM, PRAVACHAMBALAM, EDAIKKODU DESOM, PALLICHAL VILLAGE NEYYATTINKARA, THIRUVANANTHAPURAM-DIST. 2. THANKAPPAN, S/O.NARAYANAN, RADHA MANDIRAM, IRUMBU DESOM, ARUVOKKARA VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM. 3. SURENDRAN PILLAI, BSMI MINI TEA SHOP, BUILDING NO.PP VIII 353, MELE PAZHINJI VEETUVILA PURAYIDOM, EDAIKKODU DESOM, PALLICHAL VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. 4. NOORUDHEEN, MINI BISMI CHICKEN CORNER, HOTEL SHOP ROOM PP.VIII NO.254, 355, EDAIKKODU DESOM, PALLICHAL VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM DIST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.510 of 2008 = = = = = = = = = = = = = = Dated this the 20 th day of October, 2008 JUDGMENT Defendants 1 and 2 in O.S.No.613 of 1999 on the file of the Principal Munsiff's Court, Neyyattinkara are the appellants in this second appeal. The said suit was one for recovery of arrears of rent and for eviction of the defendants from the plaint schedule property consisting of a building. 2. The case of the plaintiff can be summarised as follows:- The plaint schedule property was settled in favour of the plaintiff by his parents as per Ext.A1 settlement deed dated 22.3.1974. Thereafter, the plaintiff effected mutation and has constructed shop buildings in the property and is also paying land revenue and is residing therein. The parents of the plaintiff and 1st defendant were keeping possession of the property till their death. When the parents were bedridden the 1st defendant who is the brother of the plaintiff made them execute a will in the year 1985 fraudulently. Thereafter, the 1st defendant executed a document in favour of defendants 2 and 3. R.S.A.No.510 of 2008 2 O.S.No.60 of 1987 was a suit filed by the plaintiff before the Munsiff's Court, Neyyatinkara against defendants 1 to 3. The said suit was decreed declaring the plaintiff's title subject to the possession of the mother. The said decree was confirmed in appeal in A.S.No.321 of 1994 on the file of the Sub court, Neyyatinkara. On the death of the mother of the plaintiff on 29.5.99, the plaintiff has become the absolute owner of the building in the plaint schedule property. Defendants 4 and 5 did not accede to the demand of the plaintiff to deliver vacant possession of the shop room. Hence the suit. 3. Defendants 1 and 2 contended, inter alia, as follows:- The Plaint Schedule Property including the building is in puramboke land. Ext.A1 settlement deed did not come into effect. The parents had executed another settlement deed on 18.3.85 in favour of the 1st defendant and another settlement deed in favour of the plaintiff and another brother Muraleedharan both of whom have knowledge about the settlement deed. The father of the plaintiff and 1st defendant was in a sound disposing mind and had executed the settlement R.S.A.No.510 of 2008 3 deed in favour of the 1st defendant consciously. The suit has to be dismissed. 4. The 5th defendant filed a written statement virtually adopting the contentions of defendants 1 and 2. 5. Both the courts below repelled the contention of the appellants that Ext.A1 gift deed was bad for want of two attesting witnesses and decreed the suit as prayed for. Hence this appeal. 6. The learned counsel for the appellant reiterated the contentions of the appellant, particularly, that Ext.A1 settlement deed is null and void for the reason that it did not contain two or more attesting witnesses as enjoined by Section 123 of the Transfer of Property Act, 1882. 7. The courts below have held that it was relying on the very same Ext.A1 settlement deed, (as per which both the plaintiff and the 1st defendant was given properties by the parents) that the appellant had disposed of another item of property of which he was a donee. The courts below have also held that the title and possession of the plaint schedule property R.S.A.No.510 of 2008 4 obtained by the plaintiff under Ext.A1 settlement deed was declared in O.S.No.60 of 87 and the same was confirmed in A.S.No.172 of 1992. If so, it was not open to the appellant to question the title of the plaintiff. He himself having derived the title of the properties settled in his favour and had sold the same was not entitled to turn down and question the settlement deed on the ground that it was deficient in two attesting witnesses. No questions of law, much less any substantial question of law arises for consideration in this second appeal. The substantial questions of law formulated in the memorandum of appeal do not arise for consideration in this appeal which is accordingly dismissed in limine. Dated this the 20 th day of October, 2008. V. RAMKUMAR, JUDGE sj