IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 RSA.No. 835 of 2009() --------------------- AS.No.9/2001 of SUB COURT, ATTINGAL OS.No.323/1995 of MUNSIFF'S COURT, ATTINGAL .................... APPELLANT/1st DEFENDANT ------------------------------------------ SREEMATHY,AGED 60 YEARS,D/O.CHELLAMMA, PATINHATTUVILA MUTTAPPALAM DESOM, AZHOOR VILLAGE. BY ADV. SRI.K.P.SREEKUMAR RESPONDENT: PLAINTIFF -------------------------------------- JERON,AGED 60 YEARS, S/O.CHRISTOPHER, RESIDING AT SAGARA, MARIYAPURAM DESOM,CHENKAL VILLAGE, NEYYATTINKARA TALUK REP.BY THE POWER OF ATTORNEY HOLDER MARIYADASI JERON, W/O.JERON, AGED 53 YEARS, RESIDING AT SAGARA, SAGARA,MARIYAPURAM DESOM, CHENKAL VILLAGE, NEYYATTINKARA TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------------------- R.S.A.No.835 of 2009 --------------------------------------- Dated this the 10th day of August, 2009 JUDGMENT The first defendant in O.S.No.323 of 1995 on the file of the Munsiff's Court, Attingal is the appellant. The appeal is directed against the judgment and decree in A.S.No.9 of 2001 on the file of the Sub Court, Attingal. The suit is for prohibitory and mandatory injunction. The suit was decreed by the trial court and was confirmed in appeal. Hence this second appeal. The parties are hereinafter referred to as plaintiff and defendant as in the suit. 2. The plaint schedule property is having an extent of 17 ½ cents which originally belonged to the second defendant and his wife. The second defendant is the step-father of the plaintiff. In the year 1978 the second defendant and the mother of the plaintiff jointly executed gift deed No.2038/1978 in favour of the plaintiff who is the son of the wife of the second defendant. According to the plaintiff he got possession of the property on the date of gift deed. Subsequently in 1981 the gift deed was cancelled by the second defendant and the plaintiff's mother with a view to take possession of the plaint schedule R.S.A.No.835 of 2009 2 property. The plaintiff then filed O.S.No.191/1982 before the same court for declaring that the cancellation deed is void and for a declaration of plaintiff's title and possession under the gift deed of 1978. The suit was decreed in 1984 declaring the plaintiff's title and possession over the plaint schedule property and further the civil court found that the cancellation deed is void. After a period of 11 years the second defendant has executed a sale deed in favour of the first defendant marked as Ext.A4 dated 5/1/1995. On the strength of Ext.A4 sale deed attempt was made to take possession of the property from the plaintiff forcibly. It is further stated by the plaintiff that the second defendant is not competent to execute any sale deed in respect of the plaint schedule property and in violation of the decree in O.S.No.191/1982. The present suit was filed for a prohibitory injunction restraining the defendant from trespassing upon the plaint schedule property or from doing any act affecting the plaintiff's peaceful possession and enjoyment and for a mandatory injunction directing the defendants to remove the huts situated in the plaint schedule property. 3. The second defendant remained ex-parte. In the R.S.A.No.835 of 2009 3 written statement filed by the first defendant she claimed that the plaint schedule property is in her possession and enjoyment. According to her the second defendant was in possession of the property and she obtained possession 7 ½ cents out of the 17 cents on oral lease arrangement in 1992 and the balance property by Ext.A4 sale deed. It has also been contended that a hut was constructed by her in the plaint schedule property. 4. Before the trial court the parties adduced oral and documentary evidence. PWs.1, 2 and DW1 were examined and Exts.A1 to A4, Ext.B1 and Ext.C1 were marked. The execution of the gift in the year 1978 and its cancellation in the year 1981 are not disputed. The plaintiff produced a copy of the final decree in O.S.No.191/1982 and it is marked as Ext.A3. The suit was for declaring his title and possession of the plaint schedule property on the strength of gift deed and also for declaring that the gift deed has come into effect and therefore the cancellation deed executed by the second defendant and his wife is void. A decree of permanent prohibitory injunction restraining the defendants (second defendant) herein and the mother of the plaintiff from alienating the plaint schedule property or from doing any act R.S.A.No.835 of 2009 4 affecting the plaintiff's peaceful possession and enjoyment of the property, declared that Ext.A2 cancellation deed is void and the second defendant herein and mother are restrained from executing any document inconsistent with Ext.A1 gift deed and from causing any obstruction to the plaintiff in enjoying it. It is contended by the plaintiff that the second defendant in violation of the above said decree and judgment executed Ext.A4 sale deed in favour of the first defendant and on the strength of such sale deed the first defendant attempted to take possession of the property forcibly. In Ext.A3 the plaintiff's title and possession over the plaint schedule property is declared finding that the cancellation deed executed by the second defendant and his wife is void. In the said suit an injunction was passed restraining the defendant from trespassing into the plaint schedule property or from alienating or from doing any act affecting the plaintiff's possession and enjoyment. The trial court also noted that the decree has become final and binding on the defendant in that suit. The first defendant is a transferee. In the year 1995 the trial court held that the transferee has acted in violation of the decree in O.S.No.191/1982. The trial court also held on evidence R.S.A.No.835 of 2009 5 that even if it is found that the first defendant is in possession of the plaint schedule property her possession is illegal. 5. The contentions of the defendants were considered in detail. The trial court held that simply because she is in occupation of a shed put up by her in the suit property it does not mean that she is in possession of the plaint schedule property. Her claim of oral lease in the year 1992 was found against holding that absolutely no evidence is there to substantiate such contention. After repelling the contentions of the first defendant the trial court passed a decree as prayed for. 6. In the appeal filed by the first defendant the appellate court again considered the issues and the contentions raised by the appellants. The appellate court also found that the contentions of the appellant cannot stand and held that the findings arrived at by the trial court is based on evidence and does not call for any interference. The appellate court also examined the legality of the cancellation deed in the light of the decree passed in O.S.No.191/1992. The appellate court observed that from the very pleadings of the first defendant it is evident that the oral lease agreement and Ext.A4 sale deed are R.S.A.No.835 of 2009 6 events subsequent to the passing of the decree in O.S.No.191/1982. Therefore it is hit by the decree passed in the said suit. The appellate court also held that in such circumstances the second defendant had no right over the plaint schedule property either to enter into the lease agreement with the first defendant or to alienate the property by a sale deed. The appellate court also re-appreciated the question as to whether the appellant is in possession of the plaint schedule property. The appellate court held that there is absolutely no evidence to support the claim of the defendant. The appellate court held that the possession of the defendant in the hut put up by her in the plaint schedule property without having any right to enjoy the property, the possession is illegal and therefore the plaintiff has the right to remove the hut. Both courts considered the respective contentions of the parties and entered findings and concluded that the plaintiff is entitled to the relief prayed for in the suit. The contentions of the both sides were appreciated in the context of oral and documentary evidence and the findings arrived at are purely based on the facts. A different view is not possible in the given circumstances. The appellant has not made R.S.A.No.835 of 2009 7 out any ground to invoke this court's jurisdiction under Section 100 C.P.C. No question of law much less any substantial questions of law arises for consideration in this second appeal. The appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID,JUDGE skj.