IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 RSA.No. 868 of 2008() --------------------- AS.48/2006 of SUB COURT,NEYYATTINKARA OS.629/2004 of PRL.M.C.,NEYYATTINKARA .................... APPELLANTS: ---------------- 1. PODIYAN NADAR, S/O.APPIYAN NADAR, EREPUNNAKKATTU THEKKUMKARA PUTHEN VEEDU, VELLARADA, FROM POKKALI KIZHAKKUKARA PUTHEN VEEDU VELLARADA DESOM, NEYYATTINKARA. 2. BABY, D/O.CHELLAMMA, RESIDING AT THE ABOVE ADDRESS. BY ADV. SRI.K.B.PRADEEP RESPONDENTS: ------------------- 1. VIDYARAJ, S/O.RABI, NEDUVANKUNNU KIZHAKKEKARA PUTHEN VEEDU, VELLARADA, MANNAMKONAM P.O., NEYYATTINKARA. 2. SATHYAN, S/O.SUNDARAN, NEDUVANKUNNU ROADARIKATHU VEEDU, MANNAMKONAM P.O., NEYYATTINKARA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ===================== R.S.A. No. 868 of 2008 ================ Dated this the 4th day of November, 2008. JUDGMENT Defendants 1 and 2 in O.S. No. 629 of 2004 on the file of the Principal Munsiff's Court, Neyyattinkara are the appellants in this Second Appeal. The said suit was one for declaration of the plaintiffs' title over the plaint schedule property admeasuring 8 Ares and for a prohibitory injunction restraining the defendants from trespassing upon the the plaint schedule property. Both the courts have decreed the suit as prayed for. Hence this Second Appeal by the defendants. 2. The facts which have been either admitted or proved are the following:- Defendants 1 and 2 who are husband and wife had as per Ext.A6 settlement deed dated 07.04.1996, settled the plaint schedule property in favour of their daughter Mary Antilin. The donee Mary Antilin as per Exts.A16 and A17 registered sale deeds dated 29.10.2003, sold the plaint schedule property to plaintiffs 1 and 2. Thereafter, while the plaintiffs were in possession and enjoyment of the plaint schedule property, the defendants who are the parents of the plaintiffs' assignor were putting forward some right over the plaint schedule property on the ground that their daughter Mary Antilin did not obtain their permission before she R.S.A. No. 868/2008 : 2: sold the plaint schedule property to the plaintiffs and on that ground they tried to trespass upon the plaint schedule property on 05.09.2004. Even though their attempt was foiled by the plaintiffs, they apprehend a further attempt. Hence the suit. 3. The defendants resisted the suit contending inter alia that Ext.A6 settlement deed was a sham and nominal document, which was not acted upon and was specifically cancelled as per Ext.B1 cancellation deed dated 16.10.2003 and therefore Mary Antilin could not have sold the plaint schedule property to the plaintiffs as per Exts.A16 and A17 sale deeds dated 29.10.2003. 4. Both the courts have found that Ext.A6 though styled as a settlement deed is in effect a gift deed. The said finding is reinforced by the decision of this Court in Gopalakrishnan v. Rajamma (2006(4) KLT 377). Both the courts have also held that Ext.A6 gift deed has taken effect and Mary Antilin, the donee had obtained absolute rights under the deed of transfer inter vivos and that Ext.B1 cancellation deed was of no effect and therefore Mary Antilin had every right to alienate the plaint schedule property to the plaintiff. The courts below accordingly decreed the suit as prayed for. Hence this Second Appeal. 5. The learned counsel appearing for the appellants submitted that since the plaintiffs are two strangers who obtained R.S.A. No. 868/2008 : 3: the plaint schedule property as per two separate documents hardly a couple of months before the filing of the suit and also since the cause of action alleged by the plaintiffs was denied by the defendant in the written statement, there was a duty cast on the plaintiffs to mount the witness box and speak in respect of the alleged cause of action. He relied on the decision of the Apex Court in Vidhyadhar v. Manikrao & another (1999(3)SCC 573) to contend for the position that where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. The learned counsel would therefore submit that since none of the plaintiffs mounted the witness box, the cause of action as alleged in the plaint stood unproved. This disentitled the plaintiff to a decree in the suit. 6. No doubt, none of the plaintiffs mounted the witness box. But that by itself is not a ground to non-suit the plaintiff particularly when the suit was filed to remove the cloud which was on their title. By setting up Ext.B1 cancellation deed, the appellants were really reinforcing the plaintiffs' apprehension that notwithstanding Ext.A6 settlement deed the appellants were asserting their dominion over the property. That, according to me, is sufficient to infer that the R.S.A. No. 868/2008 : 4: cause of action alleged by the plaintiff was true. Such being the position, the courts below cannot be faulted in granting a decree as prayed for. 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. Dated this the 4th day of November, 2008. V. Ramkumar, Judge. rv R.S.A. 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