IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 RSA.No. 971 of 2008() --------------------- AS.263/2003 of PRL.SUB COURT, KOZHIKODE OS.361/1995 of PRL.M.C.KOZHIKODE-I .................... APPELLANTS (S): -------------------- 1. A.P.NETHRAVATHI W/O.LATE PADMANABHAN, KANIYAMKANDI THAZHAM HOUSE, VENGERI AMSOM KARUVASSERI DESOM OF KOZHIKODE TALUK. 2. RELESH, S/O.LATE PADMANABHAN, KANIYAMKANDY THAZHAM HOUSE VENGERI AMSOM, KARUVASSERIY DESOM OF KOZHIKODE TALUK. 3. RISHMA, S/O.LATE PADMANABHAN, KANIYAMKANDY THAZHAM HOUSE, VENGERI AMSOM, KARUVASSERIY DESOM OF KOZHIKODE TALUK. BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRIC.M.MOHAMMED IQUABAL RESPONDENT(S): --------------- N.P.RAMAKRISHNAN, S/O.PAPPU, NEELAMPILLI HOUSE, PURANATTUKARA AMSOM DESOM OF THRISSUR TALUK, THRISUR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 971 of 2008 * * * * * * * * * * * * * * * * * * Dated: 20-11-2008 JUDGMENT Defendants 1, 3 and 5 in O.S. 361 of 1995 on the file of the Principal Munsiff's Court-I, Kozhikode are the appellants in this Second Appeal. The said suit was one for mandatory injunction directing the defendants to vacate from the plaint schedule property admeasuring 9 cents including the residential building thereon or in the alternative for recovery of possession on the strength of the plaintiff's title. 2. The facts which have been either proved or admitted are the following: 2nd defendant Kalyani who died pending suit was the mother of one Padmanabhan who had pre-deceased her. First defendant examined as D.W.1 is the widow of the said Padmanabhan and defendants 3 to 5 are the children of the first defendant. The plaint schedule property originally belonged to the 2nd defendant Kalyani. After the death of her son Kalyani found her residence with defendants 1 and 3 to 5 difficult in the plaint schedule R.S.A. 971 of 2008 -:2:- property and she had to eventually shift her residence to the residence of one Chathu. While so, she executed Ext.A1 sale deed dated 15-1-1995 assigning the plaint schedule property including the house to the plaintiff. The first defendant and her children were residing in the house as per the permission given by the 2nd defendant who subsequently revoked the said permission. The suit was filed by the assignee plaintiff in the year 1995 itself seeking the aforesaid reliefs. The appellants resisted the suit contending inter-alia that Ext.A1 sale deed was a fabricated and sham document in which the 2nd defendant Kalyani had not signed , that Kalyani was not the real title holder but the property was purchased by her son Padmanabhan in her name with the funds realised by the sale of his wife's oranaments. The anterior title deed in favour of the 2nd defendant namely Ext.B2 marupattom assignment deed dated 3-4-1998 was produced from the side of the defendants. 3. The trial court came to the conclusion that the defence contention that the property was purchased by Padmanabhan in the name of his mother Kalyani with the funds of his wife the first defendant was not true. It was further found that it was improbable for the first defendant to allow her R.S.A. 971 of 2008 -:3:- husband to purchase property in the name of her mother-in-law utilising the first defendant's funds. The further defence plea that Ext.A1 was a fabricated and sham document was also considered in detail and found against . It was accordingly held that the plaintiff is the absolute title holder of the plaint schedule property and that defendants 1 and 3 to 5 who were residing with the permission had no right to continue after the permission was revoked. The suit was accordingly decreed directing them to vacate from the plaint schedule property and to pay a sum of Rs. 100/- per month as compensation for use and occupation. Eventhough the decree passed by the trial court was assailed in appeal filed before the Sub Court, Kozhikode as A.S. 263/03 the lower appellate court also as per judgment and decree dated 29-2-2008 confirmed by the findings recorded by the trial court and dismissed the appeal. Hence this Second Appeal. 4. The learned counsel appearing for the appellants assailed the findings recorded by the courts below by re-iterating the contentions advanced before the courts below. The courts below have considered the various contentions raised on behalf of the appellants exhaustively and have recorded the findings based R.S.A. 971 of 2008 -:4:- on the evidence adduced by the parties. The original of Ext.A1 sale deed was produced by none other than the plaintiff. As for the custody of Ext.B2, the anterior title deed with the defendants, the courts below have accepted the contention of the plaintiffs, that after the estrangement Kalyani had shifted her residence from the plaint schedule building had demanded the documents which were wrongfully detained by the first defendant who refused to part with the same. The courts below have also taken into consideration the fact that Kalyani had independently sold other portions of the property also to strangers as per Ext.A16 to A19. Courts below have also found that Kalyani herself was in possession of the property and paying land revenue and other charges and she was herself dealing with the property as her own. These are pure findings of fact from which there cannot be any substantial question of law. No question of law, much less any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for determination in this Second Appeal which is accordingly dismissed in limine. The learned counsel appearing for the appellants made a R.S.A. 971 of 2008 -:5:- fervant request for time to vacate from the house in the plaint schedule building. It is true that the plaintiff has been trying to get vacant possession of the building from the year 1995 onwards. But having regard to the fact that even on the date of Ext.A1 the plaintiff did not get exclusive possession of the property where the appellants were also residing although with the permission of Kalyani, I am inclined to grant the appellants three months' time to vacate from the plaint schedule property on their filing an affidavit before the executing court with an undertaking to vacate the plaint schedule property within three months from today and also undertaking that they will not induct strangers or commits any acts of waste in the property and shall without fail pay the damages for use and occupation as fixed by the courts below until they surrender vacant possession. Dated this the 20th day of November 2008. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani. R.S.A. 971 of 2008 -:6:-