IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 RSA.No. 1173 of 2010 ----------------------------------- AS.234/2008 of DISTRICT COURT, KOTTAYAM OS.230/2007 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANT/APPELLANT/DEFENDANT: THOMAS MANI @ THANKACHAN, S/O.MANI, VARIKAPALLIYIL HOUSE, MANNANAM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT/RESPONDENT/PLAINTIFF: PRADEEP SCARIA, S/O.SCARIA, CHAKKUMKAL HOUSE, MANNANAM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT. BY ADV. SMT.ELIZABETH MATHAI IDICULLA SRI.RACHEL JOSEPH SRI.MOHAN IDICULLA ABRAHAM SRI.MARTIN D.ALUMKARA SRI.DEVAN K.MENON THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.1173 of 2010 --------------------------------------- JUDGMENT Defendant in O.S.No.230/2007 on the file of Munsiff's Court, Ettumanoor is the appellant. Respondent is the plaintiff. Respondent instituted the suit seeking a decree for permanent prohibitory injunction. Respondent contended that plaint schedule property originally belonged to Mani, the brother of the defendant. Under Exhibit A3 assignment, he assigned the property to Mathews. Under Exhibit A1 assignment deed, respondent purchased the same and since then, he has been in possession of the property. Appellant wanted the plaint schedule property to be transfered to him. Respondent was not prepared for the same. Appellant attempted to tamper with the southern boundary and trespass into a portion of the property. Therefore, the suit was instituted seeking a permanent prohibitory injunction. 2. Appellant resisted the suit contending that respondent has not obtained any valid title under Exhibit A1 and the property though obtained in the name of Mani, the consideration RSA 1173/10 2 was paid by the appellant and the property was obtained in the name of his brother as there was a financial transaction. Mani, the brother of the appellant, had created Exhibit A3 in the name of Mathews only as security and possession was not given to Mathews and there was no transfer of ownership and therefore, respondent did not get any right over the property. It is, therefore, contended that respondent is not entitled to the decree sought for. It was also contended that respondent trespassed into a portion of the property and reduced it into his possession and appellant is intending to institute a suit under Section 6 of Specific Relief Act. 3. Learned Munsiff, on the evidence of PWs 1 to 3, DWs 1 to 3, Exhibits A1 to A7, B1 to B3 and C1 and C1(a), granted a decree in favour of the respondent finding that respondent established his right and possession over the plaint schedule property. Appellant challenged the judgment and decree before District Court, Kottayam in A.S.No.234/2008. Learned District Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. RSA 1173/10 3 4. Learned counsel appearing for the appellant was heard. Learned counsel appearing for the respondent, who appeared as notice was issued in the petition filed under Section 5 of Limitation Act to condone the delay, was also heard. 5. On hearing the learned counsel appearing for the appellant, I find no substantial question of law involved in the appeal. The suit being one for injunction, the question is only regarding possession. Respondent claimed right and possession to the plaint schedule property under Exhibit A1 assignment deed executed by Mathews, who in turn, obtained the right from Mani, the bother of the appellant, under Exhibit A3. The case of the appellant is that though the property was obtained in the name of Mani, his brother, consideration was paid by him and Mani was not in possession of the property and Exhibit A3 was not a sale deed but was executed only as security and Mathews did not get possession and respondent, in turn, did not obtain possession of the property under Exhibit A1 and in such circumstances, he is not entitled to the decree sought for. The contention that it was not Mani who paid the consideration for acquiring the property, though the property was acquired in the RSA 1173/10 4 name of Mani and Exhibit A3 was executed in favour of Mathews only as security and the document is styled as sale deed, on proper appreciation of evidence, courts below rightly found that property belong to Mani and Exhibit A3 was not executed as security and is an out right transfer and Mathews obtained the right, title and possession, which was transferred to the respondent under Exhibit A1. That finding of fact warrants no interference, in the light of the evidence on record. 6. Learned counsel then submitted that appellant had already instituted O.S.No.252/2007 before Principal Sub Court, Kottayam and observations in this judgment may not stand in the way of the learned Sub Judge deciding O.S.No.252/2007. As that suit is filed under Section 6 of Specific Relief Act, observations in this judgment will not operate against the learned Sub Judge deciding O.S.No.252/2007 in accordance with law. Appeal is dismissed. 22nd February, 2011 (M.Sasidharan Nambiar, Judge) tkv