IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 RSA.No. 657 of 2009() --------------------- AS.132/2004 of .SUB COURT, IRINJALAKUDA OS.554/2001 of ADDL.M.C.,IRINJALAKUDA .................... APPELLANT/APPELLANT/1ST DEFENDANT ------------------------------------------------------- MANOJ @ SMITHAN AGED 40 YEARS S/O ARANGATHU KUMARAN, KORANODI DESOM VARANDHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK BY ADV. SRI.K.S.BHARATHAN RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 AND 3 ------------------------------------------------------------------------------------------- 1. THANKA, AHED ABOUT 60 YEARS, W/O PADIYANPARAMBAN DAMODARAN MANNAMPETTA DESOM, AAMBALLUR VILAGE & D/O ARANGATHU MANI, VARANDHARAPPILLY VILLAGE MUKUNDAPURAM TALUK 2. MEERA, AGED ABOUT 46 YEARS W/O KURUVILATH SREEDHARAN MANNAMPETTA DESOM, AAMBALLUR VILLAGE 3. THE VARANDHARAPPILLY SERVICE COPERATIVE BANK LTD. R-450 REPRESENTED BY ITS SECRETARY, VARANDHARAPPILLY ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1450 OF 2009 IN R.S.A. NO. 657 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 28.7.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.657 of 2009 ---------------------------------------- Dated this the 28th day of July, 2009 JUDGMENT The second appeal is directed against the judgment and decree in A.S. No. 132/2004 on the file of the Additional Sub court, irinjalakuda which arises from the judgment and decree in O.S. No. 554/2001 on the file of the Additional Munsiff, irinjalakuda. The suit is filed for declaration and injunction. The suit was decreed by the trial court and confirmed in appeal by the lower appellate court. Hence the second appeal. The parties hereinafter referred to plaintiff and defendants as arrayed in the suit. 2. The plaintiff claims title over the plaint schedule property by virtue of Ext.A1 settlement deed dated 20.3.1997. It is further pleaded that that she is in possession of the property and nobody else has any manner of right in the plaint schedule property. The 1st defendant is the son of the plaintiff's brother and the 2nd defendant is his associate .The 1st defendant is residing adjacent to the plaint schedule property. The donor of Ext. A1 settlement deed is the plaintiff's mother. Subsequent to the death of plaintiff's mother, the 1st defendant asserted that he has also title to the plaint schedule property and demanded the plaintiff to vacate the plaint schedule property and to stop the construction activities therein. According to the plaintiff, the defendants are politically powerful and have influence over the police. So the plaintiff filed the suit seeking for R.S.A. No. 657 of 2009 -2- an order of injunction restraining the defendants from trespassing into the plaint schedule property or cutting and removing any trees. Subsequently the plaint was amended twice inserting prayers for a declaration that Exts.A4 to A6 documents are null and void and for recovery of possession of the plaint schedule property on the strength of her title. 3. In the written statement filed by the 1st defendant he contended that Ext.A1 settlement deed was cancelled by the donor as per cancellation deed No. 4421/1997dated 15.12.1997.(Ext.A4) It is also averred by him that as per sale deed No.4422/1997 (Ext.A5) the plaint schedule property is conveyed to himself and he as per sale deed No.4693/2000 (Ext.A6)sold a portion of the plaint schedule property to the 2nd defendant. It is also contended by the 1st defendant that Ext.A1 settlement deed has not taken effect and therefore the plaintiff has no title over the property in question. 4. The 2nd defendant in her written statement contended that even though Ext.A1 settlement deed was executed, the same was not acted upon, that she has constructed a residential house in her property and affected improvements. She also supported the contentions of the 1st defendant. 5. The 3rd defendant filed written statement contending interalia that the institution of the suit is a collusive attempt between the plaintiff and R.S.A. No. 657 of 2009 -3- the 1st defendant. According to the 3rd defendant the cause of action stated in the plaint is not correct. The plaint schedule property and the property of the 2nd defendant are well demarcated and that the valuation shown in the plaint is not correct. The 3rd defendant also prayed for the dismissal of the suit. 6. On the plaintiff's side PW 1 to PW6 were examined and Exts. A1 to A6 were marked. On the defendants' side DW1 to DW6 were examined and Exts. B1 to B18(b) were marked. Exts.C1 to C2(a) were marked as court exhibits. 7. The trial court also examined the contentions of the respective parties. The most important questions for decision is whether Ext.A1 settlement deed is duly executed in favour of the plaintiff or not, whether the plaintiff has accepted Ext.A1 settlement deed and whether the unilateral cancellation of Ext.A1 settlement deed as per Ext.A4 is valid . The trial court elaborately examined the said questions on the basis of evidence adduced by the parties The trial court after referring to section 126 of the Transfer of Property Act held that the donor and the donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked. The trial court found that since the plaintiff has accepted Ext.A1 settlement deed a subsequent unilateral cancellation is not binding on the plaintiff. The trial court also found that as per Ext.A2 the mutation is effected in the name of the plaintiff and as per Ext.A3 the possession certificate is also issued in R.S.A. No. 657 of 2009 -4- the name of the plaintiff. Pursuant to Ext.A1 settlement deed the plaintiff has taken possession as per Ext.A3. So the subsequent execution of Exts. A4 to A6 are not binding on the plaintiff. Even though the plaintiff paid the court fee for cancellation of the document in fact there is no necessity to cancel those documents. A declaration of right of the plaintiff is sufficient. Consequently those documents are null and void. The trial court held that there is no evidence to show that the plaintiff is dispossessed from the plaint schedule property, that the available evidence amply reveals that the property is at present is in the possession of defendants 1 and 2 and the plaintiff is not entitled for an injunction as prayed or in the suit. Although the suit was filed for an injunction simplicitor restraining the defendants from trespassing into the plaint schedule property, but the plaint was amended twice on different dates inserting the two prayers as I mentioned in Paragraph 2 of this judgment. 8. It is pertinent to note that the plaintiff filed the suit on the strength of Ext.A1 settlement deed. If the settlement is accepted there is no necessity to set aside Exts. A4 to A6. Ext.A4 cancellation is an unilateral revocation. If the deceased Chakkikutty has no power for revocation, the subsequent execution of documents will not confer any title to the 1st defendant. The trial court rightly held that there is also no necessity even to declare those documents as null and void and that the question of limitation raised by the the defendants does not arise for consideration because the suit was filed well within a period of 12 years R.S.A. No. 657 of 2009 -5- under Article 65 of the Limitation Act. 9. The decree passed by the trial court was challenged by the defendants 1 and 3 by filing two separate appeals. Both appeals are clubbed and the lower appellate court passed a common judgment. The lower appellate court also considered the contentions of the respective parties on the basis of the evidence on record. After an elaborate consideration of the facts , evidence probabilities and the attendant circumstances pointed out by both sides the lower appellate court arrived at the very same conclusions of the trial court. The lower appellate court also rightly held that the plaintiff is entitled to get recovery of vacant possession of the plaint schedule property on the basis of her title and a declaration to the effect that Ext.A4 to A6 documents are null and void I have examined the contentions of the appellant/1st defendant in detail. I find no reasons to interfere with the findings entered by the trial court which were confirmed in appeal by the lower appellate court. The grounds urged in this Second appeal are not sufficient enough to invoke this Court's jurisdiction under Section 100 of the C.P.C. The questions are decided by the courts below purely on the basis of facts evidence and circumstances. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 657 of 2009 ---------------------------- JUDGMENT 28th july , 2009